Alabama Administrative Code › Title 810 - ALABAMA DEPARTMENT OF REVENUE › Chapter 810-12-1 - 100% PENALTY ASSESSMENTS › Section 810-12-1-.06 - Issuance Of Writs Of Execution

Current through Register Vol. 42, No. 9, June 28, 2024
(1) SCOPE. This regulation applies to the
			 authority of the Department to issue writs of execution to collect a final
			 assessment of tax that the taxpayer has failed to pay through other
			 means.
(2) PURPOSE. The purpose of
			 this regulation is to provide guidelines for the issuance of writs of execution
			 by the Department that are consistent with the provisions of Title 6 and Title
			 40 of the
Code of Ala. 1975
.
(3) PROCEDURE.
(a) The Commissioner or his delegate is
			 authorized, under authority of §
									40-2-11(16) and §
									40-29-23,
Code of Ala. 1975
, to issue writs of execution to
			 collect any final assessment or judgment made or rendered by the Department of
			 Revenue. Executions may be issued to the sheriff of any county in Alabama where
			 the taxpayer may have real or personal property. In order to protect the
			 state's interest, there is no minimal amount required to be due in order to
			 issue a writ of execution. The sheriff shall proceed with the execution in the
			 same manner as if it had been issued out of a circuit court. As provided by
			 §
									40-1-15,
Code of Ala. 1975
, the sheriff shall execute writs
			 issued by the Department without requiring any indemnifying bond or other
			 protective obligation.
(b)
			 Identification of Property for Seizure - The Department of Revenue may suggest
			 specific property in which a taxpayer has an ownership interest subject to levy
			 by the sheriff. The sheriff may execute on the property identified by the
			 Department, or he may substitute other property belonging to the taxpayer that
			 he determines to be marketable. The sheriff and/or his deputies will serve
			 notice of levy and sale to the taxpayer in accordance with the procedures
			 provided by Title 6,
Code of Ala. 1975
. Upon receipt
			 of the writ, the sheriff has responsibility for contacting the taxpayer and
			 serving him with a copy of the Notice of Levy.
(c) Satisfaction Prior to Sale - The sheriff
			 may allow the taxpayer an opportunity to satisfy the final assessment by
			 payment in full. Such opportunity will be determined and handled in accordance
			 with the sheriff's standard operating procedure. If the sheriff is unable to
			 collect the final assessment within the time he allows, he may proceed to sell
			 the property.
(d) Storage of
			 Personal Property Prior to Sale - When the sheriff finds it necessary to levy
			 on personal property, he may remove the property to any secure location within
			 his county for storage purposes until such time as the assessment is paid or
			 the property can be advertised for sale, and sold. The sheriff will exercise
			 ordinary and reasonable care for the seized property in a manner similar to
			 that which the owner might otherwise exercise. Taxpayers are not entitled to
			 any credit for the value of their property that is stolen after levy but prior
			 to sale, unless such loss or theft is due to negligence by the Department. Any
			 costs incurred by the sheriff for transporting, securing, and storage must be
			 paid by the taxpayer in order to retrieve the property prior to sale. In the
			 event that the Department becomes the successful bidder of the property, the
			 costs of the sale, including, but not limited to advertising, transporting, and
			 storage will be deducted from the successful bid before any credit is given to
			 the taxpayer.
(e) Advertising -
			 Prior to conducting a sale, the sheriff will advertise the property, as
			 required in Title 6,
Code of Ala. 1975
, in a newspaper
			 of general circulation in the county where the property is located. In the case
			 of personal property, the advertisement will run one time. Advertisements
			 involving levies on real property will run three times prior to the sale. The
			 sale may be postponed if it is determined that the advertisement has not been
			 published in accordance with the provisions of §
									6-9-87,
Code of Ala. 1975
, and any such cost will be borne by
			 the taxpayer.
(f) Redemption Prior
			 to Sale - At any time prior to the sheriff's sale, the taxpayer may retrieve
			 his property by paying the amount of the final assessment to the sheriff, along
			 with accrued interest and all costs of the sale. Such costs may include
			 advertising, towing, storage, and other reasonable costs that the sheriff
			 incurs in connection with preparing the property for sale.
(g) Release of Property - The Department may
			 request that the sheriff release the seized property to the taxpayer or a prior
			 lienholder at any time prior to the sale if it is determined that proceeding
			 with the sale is not in the best interest of the Department of Revenue. In such
			 instances, the taxpayer or prior lienholder will be required to pay the sheriff
			 any costs that he has incurred, unless the Department agrees to accept
			 responsibility for such costs because it has erred in the issuance of its
			 writ.
(h) Sheriff to Set Sale - The
			 sheriff will set the day, time, and location when the property is to be sold.
			 The sheriff and/or his deputy may conduct the sale by either public auction or
			 sealed bid sale. The sheriff may employ a professional auctioneer to conduct
			 the sale of seized property, when in his judgment, it would be advantageous to
			 do so. The Department of Revenue is authorized to have a representative bid for
			 the property when doing so is determined to be in the state's interest.
			 However, the failure of the Department to attend the sale will not invalidate
			 its outcome in any way.
(i) Bidding
			 - The sheriff will offer for sale only the right, title, and interest of the
			 taxpayer in and to the property. The property will be sold subject to all prior
			 encumbrances of record. It shall be the duty of the bidders to determine what
			 liens, if any, may be a prior encumbrance on the property. The property is sold
			 as is and without recourse. Generally, any bid entered by the Department will
			 not exceed the taxpayer's equity in the property or the amount due on the
			 execution(s), plus costs, whichever is less.
(j) Payment of Amount Bid - In the event the
			 Department of Revenue is the successful bidder, the sheriff will issue a
			 sheriff's deed or a bill of sale without requiring the Department of Revenue to
			 remit the amount bid for the property. The taxpayer will be given credit on the
			 assessment for the amount of the Department's bid, less any sheriff's costs
			 that were incurred in bringing the property to sale. When the successful bidder
			 is someone other than the Department, payment should be made by the bidder in
			 accordance with the timeframe and in the manner established by the sheriff
			 conducting the sale.
(k) Special
			 Provisions Relating to the Sale of Motor Vehicles - Whenever the sheriff levies
			 on an automobile titled to the taxpayer, the Department may contact any
			 lienholder of record and advise them of the date, time, and location of the
			 sale. Additionally, the Department may, as provided by §
									32-8-65,
Code of Ala. 1975
, inquire concerning the lienholder's
			 security agreement and the indebtedness secured by it. When it is determined
			 that a taxpayer has no equity in the vehicle and the lienholder bids the amount
			 of sheriff's costs, the Department may elect not to bid on the property.
1. In the event that the Department is the
			 successful bidder, the vehicle will be resold under authority of
			 §40-29-36,
Code of Ala. 1975
.
2. Whenever it is determined that the
			 condition of the vehicle is such that it cannot be transported and/or resold
			 without the expenditure of significant state funds, the vehicle may be turned
			 over to the facility where it has been stored in satisfaction of any unpaid
			 storage costs.
3. Whenever any
			 lienholder obtains a turnover order from a court, or presents documentation
			 substantiating that repossession of the vehicle has occurred, the vehicle may
			 be released to the lienholder.
(l) Third Party Claimant - Whenever the
			 sheriff has levied on personal property, and a third party claims ownership of
			 the property that has been seized, the claimant must file an affidavit and
			 bond, as required by §
									6-6-160,
Code of Ala. 1975
, with the sheriff prior to the sale.
			 Upon the filing of a claim, the sheriff will return the affidavit and bond to
			 the clerk of the circuit court so that the claim may be set for
			 hearing.
(m) Department to Assist
			 Sheriff - Whenever the Department issues an execution directing the sheriff to
			 seize and sell the tangible personal property of a business, the Department may
			 assist the sheriff in carrying out the execution by providing personnel to
			 inventory, pack, and transport the property to some secure facility where it
			 will remain until such time as the assessment is paid or a sale
			 conducted.
(n) Redemption Period
			 for Personal Property Sold Under Execution - As provided at §
									40-29-28(d)
Code of Ala. 1975
, personal property, including motor
			 vehicles, sold under power of execution may not be redeemed by the taxpayer
			 after the sale has occurred. The property continues to be encumbered by any
			 valid pre-existing liens.
(o)
			 Seizures of Real Property - Whenever the Department of Revenue or sheriff
			 identifies real property in which the taxpayer owns an interest, the sheriff
			 will proceed with the levy as required by Title 6,
Code of Ala.
			 1975
. When property is jointly owned with other individuals, only
			 the right, title, and interest of the taxpayer will be offered for
			 sale.
(p) Real Property Transferred
			 Subject to Tax Lien - Real property subject to a state tax lien which has been
			 sold or otherwise transferred by the taxpayer, may be levied upon in the hands
			 of the transferee or any subsequent transferee.
(q) Redemption of Real Property - The
			 taxpayer will have one year from the date of the sale to redeem the property
			 from the purchaser. If the purchaser is the Department, the Department may, in
			 its discretion, allow the taxpayer additional time in which to redeem the
			 property. In any event, when redeeming the property from the state, the
			 taxpayer shall be required to pay the amount of the final assessments covered
			 by the writ of execution, plus accrued interest, the sheriff's costs of the
			 sale, and a reasonable deed preparation fee.
(r) Wrongful Levy - If, subsequent to a
			 sheriff's sale, the Commissioner or his delegate determines that the taxpayer
			 was not indebted to the Department in substantially the amount claimed or that
			 property has been wrongfully levied, he may, in accordance with §
									40-29-34(b)(3),
Code of Ala. 1975
, return an amount of money equal to
			 the fair market value of the property levied upon. Such amount should be
			 returned to the owner of the vehicle, unless it is determined that a lienholder
			 of record has a prior interest, in which case payments should be made payable
			 to both the lienholder and owner. For the purposes of this regulation, the fair
			 market value may be determined by using an official National Automobile Dealers
			 Association guide or an appraisal made by a professional qualified to render an
			 opinion, and, in either case, should take into account the condition of the
			 vehicle at the time it was seized.
Author:
Dwight W. Pridgen, Collection Services
				Division