§ 39-21-114 — Methods of enforcing collection
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(1) The executive director may
issue a warrant executed either with his or her manual signature or with his or her
facsimile signature in accordance with the Uniform Facsimile Signature of Public
Officials Act, article 55 of title 11, directed to any employee, agent, or
representative of the department, sometimes in this section referred to collectively
as agent, commanding the agent to distrain, seize, sell, or otherwise levy upon the
personal property of the taxpayer, except such personal property as is exempted
from execution and sale by any statute of this state, for the payment of the tax due,
together with any penalties and interest accrued thereon and the cost of execution:
(a) When any deficiency in tax is not paid within thirty days from the mailing
of notice and final determination therefor and no appeal from such deficiency has
been docketed with any district court of this state within said period; or
(b) When any other amount of tax, penalty, or interest is not paid within ten
days from the mailing of demand for payment thereof; or
(c) Immediately upon making of a jeopardy assessment or of the issuance of
a demand for payment, as provided in section 39-21-111.
(d) (Deleted by amendment, L. 2002, p. 1362, � 18, effective July 1, 2002.)
(2) (a) The agent charged with the collection shall make or cause to be made
an account of the goods or effects distrained, a copy of which, signed by the agent
making such distraint, shall be left with the owner or possessor, or at his usual
place of abode with some member of his family over the age of eighteen years, or at
his usual place of business with his stenographer, bookkeeper, or chief clerk, or, if
the taxpayer is a corporation, shall be left with any officer, manager, general agent,
or agent for process, with a note of the sum demanded and the time and place of
sale; and shall forthwith cause to be published a notice of the time and place of
sale, together with a description of the property to be sold, in some newspaper of
general circulation within the county wherein distraint is made or, in lieu thereof
and in the discretion of the executive director of the department of revenue, the
agent shall cause such notice to be publicly posted at the courthouse of the county
wherein such distraint is made, copies thereof to be posted in at least two other
public places within said county. The time fixed for the sale shall not be less than
ten days nor more than sixty days from the date of such notification to the owner or
possessor of the property and the publication or posting of such notices. Said sale
may be adjourned from time to time by said agent if he deems it advisable but not
for a time to exceed in all ninety days from the date first fixed for the sale. When
any personal property is advertised for sale under distraint as aforesaid, the agent
making the seizure shall proceed to sell such property at public auction, offering
the same at not less than a fair minimum price, including the expenses of making
the seizure and of advertising the sale, and, if the amount bid for the property at the
sale is not equal to the fair minimum price so fixed, the agent conducting the sale
may declare the same to be purchased by him for the state. The property so
purchased may be sold by the agent under such regulations as may be prescribed
by the executive director. In any case of distraint for the payment of taxes, the
goods, chattels, or effects so distrained shall be restored to the owner or possessor
if, prior to the sale, the amount due is paid together with the fees and other charges
or may be redeemed by any person holding a chattel paper or other evidence of
right of possession.
(b) In all cases of sale, the agent making the sale shall issue a certificate of
sale to each purchaser, and the certificate is prima facie evidence of the right of the
agent to make the sale and conclusive evidence of the regularity of the
proceedings in making the sale and transfers to the purchaser all right, title, and
interest of the taxpayer in and to the property sold free and clear of all liens and
encumbrances junior to the department; and, where such property consists of
certificates of stock in the possession of the agent, the certificate of sale is notice,
when received, to any corporation, company, or association of the transfer, and the
certificate of the sale provides the authority for such corporation, company, or
association to record the transfer on its books and records; and, where the subject
of sale is securities or other evidences of debt in the possession of the agent, the
certificate of sale provides the holder with good and valid evidence of title as
against any other person; and, where the subject of the sale is a motor vehicle, the
certificate of sale is notice, when received, to any public official charged with the
registration of title to motor vehicles, of the transfer, grants authority to the public
official to record the transfer on the books and records in the same manner as if the
certificate of title to the motor vehicle were transferred or assigned by the holder
of the certificate of title, and renders void all previously issued titles to the motor
vehicle. Any surplus remaining above the taxes, penalties, interest, costs, and
expenses of making the seizure and of advertising the sale must be returned to the
owner or any other person having a legal right thereto, and, on demand, the
executive director shall render an account in writing of the sale.
(3) The agent of the executive director of the department of revenue to
whom a warrant has been issued may file with the clerk of any district court within
this state a copy of said warrant, and thereupon the clerk shall enter in the
judgment docket, in appropriate columns, the name of the taxpayer mentioned in
the warrant, the amount of the tax, or a portion thereof, together with interest and
penalties for which the warrant is issued, and the date upon which such copy is filed
and shall issue and deliver a transcript of such judgment to the agent without cost.
Said transcript so issued and delivered may be filed with the clerk and recorder of
any county, and, from the time of such filing, such judgment shall become a lien
upon all the real property of the judgment debtor in such county owned by him at
the time or which he may afterwards acquire until said lien expires. The lien shall
continue for six years from the entry of the judgment unless the judgment is
previously satisfied, all in the same manner as is provided by statute for making a
judgment of a court of record a lien on real property. The judgment so entered shall
have the same force and effect as other judgments of a court of record, and
execution upon the real and personal property of the judgment debtor and
redemption thereof may be had as provided by law with respect to other judgments.
The executive director and his agent may cause execution to be had thereon by the
proper sheriff or other officer, and such sheriff or other officer shall be entitled to
the same fees for his services to be collected in the same manner as in the case of
other executions.
(4) Any employee, agent, or representative of the executive director of the
department of revenue to whom warrant has been issued may file a notice of lien in
such form as the executive director may prescribe with the person in possession of
any personal property or rights to property belonging to the taxpayer, and the filing
of such notice of lien shall operate as a lien upon such personal property or rights
to property from the date of such filing. Any costs incurred by the person in
possession of such property or rights to property by reason of compliance with said
notice of lien shall be paid by the executive director and recovered by him out of
any proceeds of sale of the property subject thereto. The executive director may
release said lien as to any part or all of the property or rights to property covered by
any such lien upon such terms as he may deem proper.
(5) Nothing in this section shall be construed to abrogate or diminish the
rights of bona fide purchasers, lienors, or pledgees for value and without notice.
(6) The executive director of the department of revenue may be made a
party defendant in an action at law or a suit in equity by any person aggrieved by
the unlawful seizure or sale of his personal property, but only the state of Colorado
shall be responsible for any final money judgment secured against said executive
director; and said judgment, so secured, shall be paid or satisfied out of the tax
refund provided by section 39-21-108 (2) upon presentation by the judgment
creditor to the executive director of two certified copies of said final judgment.
(7) If any person, firm, or corporation liable for the payment of any tax
covered by this article has repeatedly failed, neglected, or refused to pay the same
within the time specified for such payment and the department has been required
to issue distraint warrants to enforce the collection of any taxes due from such
taxpayer, the executive director of the department of revenue is authorized to
assess and collect the amount of such taxes due, together with all interest and
penalties thereon provided by law, and also the following additional penalties for
recurring distraint warrants:
(a) Three, four, or five consecutive distraint warrants issued: Fifteen percent
of the delinquent taxes, interest, and penalties due or the sum of twenty-five
dollars, whichever amount is greater;
(b) Six or more consecutive distraint warrants issued: Thirty percent of the
delinquent taxes, interest, and penalties due or the sum of fifty dollars, whichever
amount is greater.
(8) (a) In order to facilitate and expedite the collection of taxes more than six
months overdue from a taxpayer who is not a resident of nor domiciled in the state
of Colorado, the executive director may enter into a contract with a debt collection
agency or an attorney for the collection of the taxes due from such taxpayer
together with any penalties and interest accrued thereon.
(b) For purposes of paragraph (a) of this subsection (8), the executive
director may contract with a debt collection agency or an attorney doing business
in the state of Colorado or in any other state; except that, prior to entering into such
contract with a debt collection agency, the executive director shall require that the
debt collection agency file a bond in the amount of one hundred thousand dollars,
which bond shall run to the state of Colorado for the purpose of guaranteeing
compliance with the terms of the contract. Such bond shall be executed by the debt
collection agency as principal and by a corporation, which is licensed to transact
the business of fidelity and surety insurance, as surety.
(b.5) In order to facilitate and expedite the collection of taxes more than
twelve months overdue from a taxpayer who is a resident of and domiciled in the
state of Colorado, the executive director may enter into contracts with two or more
debt collection agencies or attorneys for the collection of the taxes due from such
taxpayer, together with any penalties and interest accrued thereon pursuant to the
procurement provisions of article 103 of title 24, C.R.S. For the purposes of this
paragraph (b.5), the executive director may contract with debt collection agencies
or attorneys doing business in the state of Colorado or in any other state; except
that, prior to entering into such a contract with a debt collection agency, the
executive director shall require that the debt collection agency file a bond in the
amount of no less than one hundred thousand dollars and no more than five
hundred thousand dollars, which bond shall run to the state of Colorado for the
purpose of guaranteeing compliance with the terms of the contract. Such bond
shall be executed by a debt collection agency as principal and by a corporation,
which is licensed to transact the business of fidelity and surety insurance, as
surety.
(c) (I) Each contract entered into with a debt collection agency or an attorney
shall specify that fees for services rendered shall be based on the total amount of
delinquent taxes, including accrued penalties and interest, that is actually
collected; however, under no circumstance shall the fees for services rendered
exceed twenty percent of the total amount of delinquent taxes, including accrued
penalties and interest, that is actually collected. Any fees for services rendered
shall be collected by the agency or attorney in addition to the total amount of
delinquent taxes, including accrued penalties and interest, actually collected. Such
fees for services rendered shall be shown to the taxpayer as a separate and distinct
item, and, when added, such fees for services rendered shall be a debt from the
taxpayer to the agent or attorney until paid and shall be recoverable at law in the
same manner as other debts.
(II) If the department enters into a contract with a debt collection agency or
an attorney to collect delinquent taxes, including accrued penalties and interest,
and any fees for services rendered as specified in subparagraph (I) of this
paragraph (c) and the contract specifies that the department is required to collect
the fees for services rendered if the taxpayer chooses to pay the total amount owed
directly to the department, the department shall become the agent for the agency
or attorney and collect the agency's or attorney's fees for services rendered on
behalf of the agency or attorney.
(III) If a taxpayer makes a payment toward the total amount a debt collection
agency or attorney is attempting to collect, including delinquent taxes, accrued
penalties and interest, and any fees for services rendered as specified in
subparagraph (I) of this paragraph (c), such payment shall be allocated among
delinquent taxes, accrued penalties and interest, and fees for services rendered
according to the rules or procedures of the department and the contract between
the department and the agency or attorney. The taxpayer may not designate the
allocation of the payment.
(IV) No costs except court costs shall be reimbursed unless authorized in
such contract. If a debt collection agency or an attorney files a civil suit to collect
delinquent taxes, including accrued penalties and interest, suit shall be brought in
the name of the executive director of the department of revenue of the state of
Colorado. When suit is brought by an agency or attorney, court costs are
reimbursable by the department to the agency or attorney, but fees for services of
legal representation incurred by such agency or attorney on behalf of the
department for the purpose of such suit shall not be reimbursable.
(d) A debt collection agency or an attorney shall, pursuant to contract, remit
the total amount of delinquent taxes, including accrued penalties and interest,
collected, less allowable reimbursable costs, to the executive director within thirty
days from the date the moneys are collected from the taxpayer.
(e) The executive director may prescribe forms to be used in implementing
this subsection (8).
(9) The executive director, under such terms and conditions as he deems
advisable, may enter into a reciprocal agreement with an agency of another state
for the collection of delinquent taxes owed by individuals who are nonresidents of
the state of Colorado. Under such an agreement, the agency would agree to collect
delinquent taxes owed to the state of Colorado by taxpayers who are residing or
domiciled in that state. In return, the executive director would undertake the
collection of taxes of the same or similar type owed to the other state by taxpayers
residing or domiciled in the state of Colorado.
(10) (a) The executive director is authorized to enter into an agreement with
the controller for the purpose of collecting delinquent state taxes through the
vendor offset program established pursuant to section 24-30-202.4 (3.5)(a), C.R.S.
(b) Each agreement entered into with the controller shall specify that fees
for services rendered shall be based on the total amount of delinquent taxes,
including accrued penalties and interest, that is actually collected through the
vendor offset program established pursuant to section 24-30-202.4 (3.5)(a), C.R.S.
(c) The controller shall, pursuant to agreement, remit the total amount
actually offset from a vendor's account pursuant to section 24-30-202.4 (3.5)(a),
less fees for services rendered and allowable costs, to the executive director within
thirty days after the date the moneys are offset from the vendor's account.
(11) In addition to any other remedies available to the department, any
district court in the state has jurisdiction and venue to make and issue orders as
may be necessary for the collection of any tax, interest, or penalty, including, upon
ex parte application by an employee, agent, or representative of the department
and a showing of probable cause, warrants to search premises to distrain, seize, and
sell the taxpayer's personal property.
Colorado § 39-21-114 (Methods of enforcing collection) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.