Authority to Pay State and Local Taxes on Property

After Entry of an Order of Forfeiture

T h e A ttorney G eneral has discretionary authority to m ake paym ents o f slate and local tax claim s 

against civ illy forfeited property afte r a forfeiture o rd er has been issued, based on h e r equitable 

d iscretion to adm inister civilly forfeited p roperty, under 21 U S C § 8 8 l(b )-(e ) an d 28 U .S.C . 

§ 5 24(c)(1)

T he A ttorney G eneral has discretion to pay state and local tax claim s against crim inally fo rfeited p ro p ­

erty, under the authority in those statutes to “take any o th e r action to p rotect the rights o f innocent 

persons w hich is in the interests o f ju s tic e .”

D e c e m b e r 9, 1993

M e m o r a n d u m O p in io n f o r t h e D ir e c t o r a n d C h ie f C o u n s e l

E x e c u t iv e O f f ic e f o r A s s e t F o r f e it u r e ,

a n d t h e D e p u t y D ir e c t o r

A s s e t F o r f e it u r e O f f ic e , C r im in a l D iv is io n

Y o u have requested advice on two matters: a proposed Directive from the Executive Office for Asset Forfeiture (“Directive”) that would authorize payment of 

state and local taxes on some civilly forfeited property for which the court had notice of a state or local tax claim before the court entered an order of forfeiture, and 

a draft Memorandum from the Asset Forfeiture Office, Criminal Division, to the 

Attorney General (“AG Memo”) concluding that the Attorney General may pay 

state and local taxes on criminally forfeited property (and proposing an Attorney 

General Order to delegate such authority to the Director of the Asset Forfeiture 

Office). The proposed Directive and the draft AG Memo both raise the question of 

the Attorney General’s discretionary authority to pay taxes, for the period from the 

offense giving rise to forfeiture to the entry of an order of forfeiture, on property 

for which a court has already entered an order of forfeiture.

The focus of our previous opinion, to which the Directive and the AG Memo 

both refer, was the liability of the United States for payment of such taxes on property for which a court had not yet entered a forfeiture order. See Liability o f the

United States for State and Local Taxes on Seized and Forfeited Property, 17 Op.

O.L.C. 104 (1993) (“Copeland Memorandum”). Accordingly, that opinion, which 

reconsidered an earlier Office of Legal Counsel (“OLC”) opinion in light of United

States v. 92 Buena Vista Ave., 507 U.S. 111 (1993) (“Buena Vista”), did not specifically address the circumstances at issue in the Directive and the AG Memo. We 

now conclude that payment of taxes on civilly forfeited property on the terms set 

forth in the proposed Directive would not be inconsistent with the civil forfeiture

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statute and would not exceed the Attorney General’s equitable discretion under the 

civil forfeiture laws. We also conclude that payment of taxes on criminally forfeited property in the circumstances apparently envisioned by the draft AG Memo 

would not be unlawful under the criminal forfeiture laws or beyond the Attorney 

General’s equitable, discretionary authority under such laws. In addition, we describe revisions to the draft AG Memo necessary to ensure accuracy in its description of OLC advice.

I.

The proposed Executive Office for Asset Forfeiture Directive provides, in relevant part:

This directive . . . permits the payment of taxes upon civilly forfeited properties: (1) which have not yet been sold, or (2) which are 

the subject of pending litigation regarding payment of taxes, provided, however, that a tax claim was filed with the federal district 

court prior to entry of the order of forfeiture, or that a valid lien had 

been recorded among the pertinent land records giving the federal 

district court notice of the tax claim prior to entry of the order of 

forfeiture.

Directive at 2.[l1

Where an appeal from an order of forfeiture is no longer available or was unsuccessful, a state or locality asserting a tax claim has no legal right and no judicial 

remedy under the civil forfeiture statute’s “innocent owner” provision as interpreted in Buena Vista. See Copeland Memorandum, 17 Op. O.L.C. at 106-07, 

113 n.13. Nonetheless, a permissible interpretation of the statutes governing civil 

forfeitures would authorize payment of the taxes described in the Directive as an 

exercise of the Attorney General’s equitable discretion in administering civilly 

forfeited property. See 21 U.S.C. §881 (b)-(e); 28 U.S.C. § 524(c)(1) (Attorney 

General’s authority in administering civil forfeiture laws); Chevron U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 843-44 (1984) (deference 

to reasonable agency construction of statute it administers, so long as not contrary 

to clearly expressed congressional intent); Fertilizer Inst. v. EPA, 935 F.2d 1303, 

1309 (D.C. Cir. 1991) (Chevron principles apply to agency interpretations that are 

not full “legislative” rules); General Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 

1565 (D.C. Cir. 1984) (same), cert, denied, 471 U.S. 1074 (1985).

Two related arguments support this conclusion. First, a reasonable construction 

of the civil forfeiture statute could consider the tax liens described in the Directive

1 You hav'e inform ed us, and the follow ing analysis assum es, that the m odifying language following 

“provided, h o w e v e r,' applies to both enum erated categories o f civilly forfeited property

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A uthority to Pay State and Local Taxes on Property A fter E ntry o f an O rder o f Forfeiture

to be the equivalent of a pre-offense ownership interest, or other interest, that could 

be forfeited to the United States and that the Attorney General subsequently could 

restore, after a court order of forfeiture, to the person who previously held such an 

interest.

As interpreted by the Supreme Court in Buena Vista, the civil forfeiture statute 

protects the property of an “owner” who “prove[s],” before the entry of an order of 

forfeiture, “that [he or] she is an innocent owner.” Buena Vista, 507 U.S. at 127 

(plurality opinion); 21 U.S.C. § 881(a)(6), (7) (commonly referred to as the 

“innocent owner” provision, stating that “no property shall be forfeited under this 

paragraph, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the 

knowledge or consent of that owner”); id. § 881(h) (commonly referred to as the 

“relation back” provision, stating that “[a]ll right, title, and interest in property 

described in [section 881(a)] shall vest in the United States upon commission of 

the act giving rise to forfeiture”). As the Copeland Memorandum explains, a state 

or locality holding a tax lien against a property is an “owner” of that property, and 

in almost all cases, there will be no doubt that the state or locality will satisfy the 

statute’s “innocence” requirement. See Copeland Memorandum, 17 Op. O.L.C. at 

106; cf. Directive at 1.

In light of these considerations, it would not be unreasonable to conclude that 

notice to the federal district court of the tax claim before the entry of an order of 

forfeiture can constitute the showing or proof required by the statute, in light of 

Buena Vista.2 While an unappealed or unsuccessfully appealed forfeiture order in 

such a case would have the effect of vesting the taxing authority’s interest in the 

United States, retroactive to the date of the offense giving rise to forfeiture, the 

taxing authority still would have demonstrated a protected innocent ownership interest that the court merely failed to recognize before issuing its order. On this 

analysis, the affirmed or unchallenged forfeiture order would have effected a forfeiture of that interest to the United States, one which the Attorney General could 

remit or mitigate after the conclusion of the forfeiture proceedings. See 21 U.S.C. 

§ 881(d) (laws relating to seizure and forfeiture of property, including mitigation 

and remission of forfeiture, under the customs laws generally apply to civil forfeiture under § 881, except that the Attorney General and her delegees are substituted 

for the Secretary of the Treasury and customs authorities); 19 U.S.C. § 1618 

(authority of Secretary of the Treasury, customs officials to “remit or mitigate” 

forfeiture upon a finding that the “forfeiture was incurred without willful negli2 This conclusion is consistent with our discussion in the C opeland M em orandum o f the A ttorney G eneral’s discretionary authority under 28 U S C. § 524 Under the analysis em ployed in this M em orandum and 

under the standards adopted in the Directive, a state or locality would still have to have “e sta b lish e d ]” that it 

is an “innocent ow ner” (with the aid of the presum ption of '‘innocence” that is set forth in the D irective and 

that is consistent w ith the C opeland M em orandum 's conclusion that the '“ innocence requirem ent" w ould be 

“easy to satisfy in most cases”) for the Attorney General or her delegees to make a discretionary paym ent of 

post-offense tax claim s C opeland M emorandum , 17 Op O L .C at 113 n 13

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gence or without any intention on the part of the petitioner . . . to violate the law” 

or that there exist “such mitigating circumstances as to justify the remission or 

mitigation”); 28 U.S.C. § 524(c)(1)(E) (authority of Attorney General to make 

“disbursements authorized in connection with remission or mitigation procedures 

relating to property forfeited under any law enforced or administered by the Department of Justice”).3

A contrary conclusion — that the entry of an order of forfeiture, by operation of 

the relation back doctrine, results in the taxing authorities’, in effect, never having 

had any interest in the property, despite the evidence before the court that they had 

an innocently held ownership interest — would forge an extremely tight, and rather 

odd, link between the prior existence of a substantive interest (whether or not such 

interest may be asserted or protected in court proceedings) and the course of subsequent judicial proceedings. Neither the civil forfeiture statute nor the opinions in 

Buena Vista appear to require such a link.

Second, although a forfeiture order may deprive holders of the tax claims described in the Directive only of something less than the type of interest at issue in 

conventional proceedings for remission or mitigation of civil forfeiture (i.e., those 

involving petitioners who had an interest in the property prior to its use in the offense giving rise to forfeiture), the Attorney General’s equitable authority to reduce 

the harsh impact of forfeiture still can be construed to extend sufficiently beyond 

ordinary remission and mitigation to include the discretionary payment of tax 

claims contemplated by the Directive (as well as the discretionary denial of potentially eligible requests for relief, if any, that are not covered by the Directive). 

Courts and Congress have stressed that the Attorney General has broad and generally unreviewable discretion in exercising his or her lawful authority in this area. 

See, e.g., United States v. Reckmeyer, 836 F.2d 200, 207 (4th Cir. 1987) (granting 

of a proper petition for “relief or mitigation” of forfeiture was “a matter solely 

within the unreviewable discretion of the Attorney General”); United States v. 

$2,857.00, 754 F.2d 208, 214 (7th Cir. 1985) (Attorney General has “virtually unreviewable discretion to ameliorate the harshness of forfeiture statutes in appropri1 T his interpretation of the remedial schem e under the civil forfeiture laws also derives support from its 

sim ilarity lo the structure C ongress contem plated in enacting the “bona fide purchaser” provision in crim inal 

forfeiture statutes See. e.g , 21 U.S C § 853(n)(6); 18 U S.C. § 1963(/)(6). Under those provisions, a 

claim ant w ho establishes his bona fide purchaser status in court proceedings ancillary to the forfeiture proceedings has a legally protected interest m the property. A valid court order may not forfeit that interest and 

the A ttorney G eneral’s recognition of such an interest would not be discretionary. Such a bona fide purchaser is in the sam e position as a claim ant in civil forfeiture proceedings who establishes his innocent 

ow ner status prior to the co u rt’s entry of an order o f forfeiture See C opeland M em orandum , 17 Op. O L C 

at 109-11

The legislative history o f the bona fide purchaser provision indicates that Congress assum ed that a claim ­

ant w ho “ fails to obtain relief under the . . ancillary hearing provision [which enables such a claim ant ‘in 

essence . [to] challenge[] the validity' o f a forfeiture order] . . . may [still] seek equitable relief from the 

A ttorney G eneral." S Rep. No 98-225, at 208-09 (1983), reprinted in 1984 U.S.C C.A N 3 1 82,3391-92 

The D irective would provide equivalent re lie f to som e claim ants who failed to obtain relief in court proceedings under the innocent ow ner provision in the civil forfeiture statute

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Authority to Pay State and Local Taxes on Property A fter E ntry o f an O rder o f Forfeiture

ate cases”); United States v. One 1973 Buick Riviera, 560 F.2d 897, 900 (8th Cir. 

1977) (“overwhelming weight of authority” supports the view that “denial of [a] 

petition for remission” is “not subject to judicial review on the merits”); United

States v. One 1961 Cadillac, 337 F.2d 730, 732-33 (6th Cir. 1964) (similar);

S. Rep. No. 98-225, at 207-08 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 

3390, 3392 (noting that petitions for remission or mitigation of forfeiture “are most 

frequently filed as the result of civil forfeiture actions” and that the Attorney General’s decisions with respect to such requests for “equitable relief’ “[traditionally”

have been “viewed entirely as a matter of discretion and not subject to judicial reu s 4 view ).

In the draft AG Memo, the first full paragraph on page three could be revised to 

reflect the advice given in this part of this Memorandum, and should be revised to 

make clear that payment of liens for post-offense taxes where a state or local tax 

lien-holder establishes its “innocent ownership” status to the court’s satisfaction 

before the entry of a judgment of forfeiture is not (as the AG Memo’s use of the 

phrase “is permitted to pay” appears to suggest) an exercise of the Attorney General’s discretion.

II.

The draft Attorney General Memorandum concludes:

[T]he statutory language [in 21 U.S.C. § 853(i)(l), 18 U.S.C.

§ 1963(g)(1) and other criminal forfeiture statutes containing, or 

adopting by reference, identical provisions] that permits the Attorney General to “take any other action to protect the rights of innocent persons which is in the interest of justice” provides the 

necessary statutory authority to make payments of state and local 

taxes on property forfeited under the criminal forfeiture laws as a

discretionary matter.

AG Memo at 3. As the AG Memo correctly indicates, holders of state and local 

lax claims against such property for the period after the commission of the act 

giving rise to forfeiture have no legal right and no judicial remedy under the criminal forfeiture laws. There is no equivalent to the civil forfeiture statute’s “innocent

4 Bui see also LaChance v. DEA, 672 F Supp 76, 79-80 (E D N.Y. 1987) ('‘form alized invariable policy 

of denying petitions” and failure “to give any reason for denial” is basis for limited judicial intervention “to 

direct [an] agency to exercise us jurisdiction" to decide the petition), M em orandum for Leland E. Beck, 

Senior Counsel, Office of Policy Developm ent, from Rosemary Hart, Acting Deputy Assistant Attorney 

General, Office of Legal Counsel, Re Statutory A uthorization fo r the Proposed R egulations G overning the

Rem ission or M itigation oj Forfeited Property (M ar 25, 1993) (interpreting civil forfeiture statute rem ission 

and m itigation authority as not authorizing transfers to persons who had no prior interest in the forfeited 

property but who were victims of the offense giving rise to forfeiture).

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owner” provision in the criminal forfeiture statutes, and the “bona fide purchaser” 

exception is unavailable to such claimants. See Copeland Memorandum, 17 Op.

O.L.C. at 112. A permissible construction of the “rights of innocent persons” provision, however, would authorize discretionary payment of such taxes.5

It would be difficult to base the authority to grant such equitable and discretionary relief on the analysis offered in Part I of this Memorandum to support the postforfeiture order payment of claims for post-offense taxes in the civil forfeiture 

context. Because the criminal statutes contain no innocent owner provision, any 

“showing” or “proof’ with respect to such a tax claimant’s innocent ownership 

(short of the “bona fide purchaser” showing which taxing authorities cannot make) 

would appear to be irrelevant and not to provide a basis for the Attorney General to 

remit or mitigate any forfeited interest. The logic of Buena Vista would seem to 

dictate that the relation back doctrine, see, e.g., 18 U.S.C. § 1963(c); 21 U.S.C. 

§ 853(c); c / 21 U.S.C. § 881(h) (civil provision, identical in relevant part), will 

have operated to leave a tax lien-holder as, in effect, never having held any 

“interest of an owner,” 21 U.S C. § 881(a)(6), (7), in the property with regard to 

post-offense taxes. On this reasoning, there will have been no ownership interest 

forfeited and, thus, nothing for the Attorney General to remit or mitigate. Cf.

Copeland Memorandum, 17 Op. O.L.C. at 113 n.13.

The better argument derives discretionary and equitable authority of the Attorney General to lessen the impact of forfeiture on the claimants for post-offense 

taxes from the “rights of innocent persons” provisions cited in the AG Memo, and 

depends on a construction of “rights of innocent persons” that is broader than 

“innocent ownership.” We believe that adopting such a construction would not be 

unlawful and would be within the Attorney General’s authority to interpret and 

administer the criminal forfeiture statutes. See, e.g., 18 U.S.C. § 1963(e)-(g); 

21 U.S.C. § 853(g)-(j) (Attorney General’s authority in administering criminal forfeiture laws and disposing of property seized under criminal forfeiture laws); Chevron U.S.A., Inc., 467 U.S. at 843-44.

First, the statutory language is compatible with such a view. Criminal forfeiture 

statutes explicitly confer upon the Attorney General the authority to “take any 

other action to protect the rights of innocent persons,” in addition to the authority 

to remit or mitigate forfeitures (and the obligation to recognize the interests of

3 T o be eligible for discret.onary relief under these provisions, it would appear to be sufficient for state 

and local taxing authorities 10 be “innocent ow ners,” w ithin the m eaning o f that term under the civil forfeiture provisions — a standard that all or nearly all taxing authorities will meet, cj. Copeland M emorandum ,

17 Op. O L.C. at 106 ('‘a state or locality holding a lax lien can be an ‘o w n e r'” and “[t]he ‘innocence’ requirem ent . . . w ould seem to he easy to satisfy in most cases ’); D irective at 1 (“in d u lg in g ] a presum ption of 

innocence” o f taxing authorities under the civil forfeiture statute '‘in the absence of exceptional circum ­

stances”) W e have found nothing in the statutory language, legislative history or judicial interpretations to 

suggest that the w ord “innocent” in the crim inal forfeiture statu te's phrase “innocent persons” is narrow er 

than the phrase in the civil forfeiture statute that courts and C ongress have sum m arized as “innocent” (in the 

phrase “innocent ow ner”). See S Rep. No. 98-225, at 215, reprinted in 1984 U.S C C A.N at 3398, Buena

Vista, 507 U S 111. If “rights” is construed as described in this M em orandum , the term is broader than 

“ow nership” or “interest of an o w n e r"

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bona fide purchasers and holders of senior vested interests). 18 U.S.C. 

§§ 1467(h)(1), 1963(g)(1), 2253(h)(1); 21 U.S.C. § 853(i)(l) (emphasis added). 

Construing the quoted language as more than surplusage requires a conclusion that 

the Attorney General’s authority is broader than that exercised in ordinary remission and mitigation proceedings. Also, the use of the term “rights o f innocent persons” in these provisions, but “right, title, and interest in property” the forfeiture of 

which is subject to remission and mitigation in the civil and criminal forfeiture 

statutes, 19 U.S.C. §1618; 21 U.S.C. § 881(a), (h); 18 U.S.C. § 1963(a)-(c); 

21 U.S.C. § 853(a)-(c) (emphasis added), and “interest o f an owner" in the innocent owner provisions of the civil forfeiture statute, 21 U.S.C. § 881(a)(6), (7) 

(emphasis added), suggests a lesser claim on the property, or a looser connection 

between the claimant and the property, in the former context. Cf. Black’s Law 

Dictionary 812, 1324 (6th ed. 1990) (defining “interest” as “[t]he most general 

term . . . to denote a right, claim, title, or legal share in something”; defining 

“right,” in its “narrower signification” as “an interest or title in an object of property” and, more generally, as “[t]hat which one person ought to have or receive 

from another.”) (emphasis added). This contrast offers some support for the view 

that the criminal statutes give the Attorney General discretionary authority to recognize, after forfeiture, claims that are broader than ownership interests, including 

claims for taxes for the period after the offense giving rise to forfeiture.

Second, the legislative history of two principal criminal forfeiture provisions, 21 

U.S.C. § 853(i) and 18 U.S.C. § 1963(g) (provisions that the other criminal forfeiture statutes cited in the AG Memo incorporate by reference or replicate), suggests 

that the Attorney General’s authority is broad enough to include payment of the 

taxes described in the AG Memo. The description of these provisions states that a 

claimant who could have raised a bona fide purchaser defense in a hearing ancillary to a criminal forfeiture proceeding, but who failed to do so, still “may seek 

equitable relief from the Attorney General.” S. Rep. No. 98-225, at 208-09, reprinted in 1984 U.S.C.C.A.N. at 3391-92 (describing, somewhat loosely, this equitable relief as being available through a “remission and mitigation process”). 

Having foregone an available legal remedy for protecting an interest acquired after 

the offense that rendered the property subject to forfeiture, such a claimant would 

seem to be, after the final forfeiture order and the operation of the relation back 

doctrine, in essentially the same position as an “innocent” state or locality asserting 

a tax claim for the post-offense period. Given that Congress’s view was that the 

equitable remedy of petitioning the Attorney General was clearly available to the 

potential bona fide purchaser claimant under existing law prior to the enactment of 

the bona fide purchaser defense, there would seem to be no reason to infer that 

Congress meant to restrict the remedy only to claimants who could have raised a 

successful bona fide purchaser defense to forfeiture in court proceedings, but were 

too slothful or too poorly advised to do so. See id. at 193, reprinted in 1984 

U.S.C.C.A.N. at 3376 (under “[pjresent [f]ederal [l]aw .... [a] party who does not

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have legal basis for defeating the forfeiture, but who has an equitable basis for relief, may petition the Attorney General.”).

Third, judicial interpretations also provide some support for the position taken 

in the AG Memo. The most relevant opinion we have found construes 21 U.S.C. 

§ 853(i)(l) as conferring upon the Attorney General extremely broad equitable 

authority to do what is ‘“fair and just,’” and concludes that a claimant whose claim 

against forfeited property arose after the offense giving rise to forfeiture, but whose 

interest was not that of a bona fide purchaser, could petition the Attorney General 

for equitable relief to “recoup some of its losses from [the] forfeited property.” 

United States v. Lavin, 942 F.2d 177, 185 & n.10, 187 (3d Cir. 1991). The opinion does not state which provision in the statutory subsection is relevant. We believe that the better argument, and perhaps the only lawful conclusion, is that the 

authority to grant relief is that provided by the statutory mandate to “take any other 

action to protect the rights of innocent persons which is in the interest of justice.” 

21 U.S.C. § 853(i)(l); see also United States v. Mandel, 505 F. Supp. 189, 191-92 

(D. Md. 1981) (describing predecessor to current 18 U.S.C. § 1963 as both 

“vestfing] the Attorney General” with “authority to make provisions for the remission or mitigation of forfeitures” and “charging] him with the obligation of protecting the rights of innocent persons”; suggesting that the latter authority is the 

likely basis for recognizing claim by third party that he, not defendant, owned 

property that court ordered forfeited), aff’d 705 F.2d 446 (4th Cir. 1983); S. Rep. 

No. 98-225, at 207 n.44, reprinted in 1984 U.S.C.C.A.N. at 3390 (citing Mandel

as authority for the equitable, discretionary relief process to be retained after the 

enactment of current 18 U.S.C. § 1963(g)(1) and 21 U.S.C. § 853(i)( 1)).

Finally, two references in the draft AG Memo to OLC’s views are, at this stage, 

inappropriate. We believe that the draft AG Memo goes too far in concluding, at 

pages 3-4, that the procedure proposed in the AG Memo is “fully consistent with 

the letter and spirit” of the Copeland Memorandum. As this memorandum has 

indicated, the Copeland Memorandum did not address these issues, and a conclusion that such payments are permissible depends on an analysis that the Copeland 

Memorandum did not pursue or evaluate. If a statement similar to that contained 

in the draft AG Memo is to be retained, it should go no further than a statement 

that the proposed procedure is “compatible” or “not inconsistent” with the 

Copeland Memorandum. Also, this Office has not yet reviewed the legality of the 

delegation that the proposed order attached to the draft AG Memo would effect. 

Accordingly, the next to last paragraph of the draft AG Memo (stating that OLC 

has confirmed that the delegation is permissible) cannot be included at this time. 

Ordinarily, this Office addresses such issues at a later stage, as part of a review of a 

proposed Attorney General order for form and legality.

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III.

For the reasons set forth above, we conclude that it would not be unlawful for 

the Attorney General (or those to whom her authority is properly delegated, see

28 U.S.C. §§ 509, 510) to pay, in an exercise of equitable discretion, the taxes on 

civilly forfeited property as described in the proposed Directive from the Executive 

Office for Asset Forfeiture, and the taxes on criminally forfeited property as described in the draft Memorandum to the Attorney General from the Office for Asset Forfeiture.

Exercise of the Attorney General’s equitable discretion to pay tax claims must, 

of course, comply with any applicable regulations, unless and until such regulations are lawfully modified. See, e.g., 28 C.F.R. §§ 9.1-9.7 (1993). See generally

United States v. Nixon, 418 U.S. 683, 694-95 (1974); United States ex rel. Accardi

v. Shaughnessy, 347 U.S. 260 (1954).

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

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