Neb. Admin. Code § 316-36-009 — Seizure and Sale of Property

009.01 The Department may seize and sell real, personal, or intangible property, or rights to real personal, or intangible property (property) of a taxpayer when: the taxpayer is delinquent in the payment of any Nebraska taxes; the taxpayer has not shown satisfactory cooperation regarding delinquent taxes; and a demand for payment has been sent for the total amount owing within the last 60 days. 009.01A The Tax Commissioner, or an authorized employee, may levy, or by warrant issued under his or her hand, authorize a sheriff or duly authorized employee of the Tax Commissioner to levy upon, seize, and sell property belonging to the taxpayer, that is not exempt, to the extent necessary to satisfy the liability for the payment of the amount due (Reg-36-010, Exemptions from Levies). 009.01B Before a writ of seizure is issued, the Department must identify the property to be seized, verify the nature and extent that the title to the property rests with the taxpayer, and identify all other known lienholders on the property. 009.01C If the writ of seizure is to be executed by the county sheriff, the Department must first record the state tax lien in the office of the Secretary of State or the appropriate county and pay the costs of the county sheriff. 009.02 The taxpayer must be served a copy of the writ of seizure either in person at the time the writ is executed or by first class mail. The writ must inform the taxpayer of his or her right to request in writing a determination that the seizure of property was invalid within 20 days after service of the writ of seizure. 009.03 A writ of seizure is deemed issued when signed by an officer of the Department. 009.04 Any person whose property has been seized has the right to pay the amount due, together with the expenses of the proceeding, if any, to the Department, or reach a payment agreement with the Department at any time before the sale of the property. Upon payment or acceptance of a payment agreement, the Department must restore the property to the person, and all further proceedings in connection with the levy on the property must cease from the time of payment or acceptance of a payment agreement. If the property is in the possession of the county sheriff, the taxpayer must pay the taxes, interest, and penalties, plus costs directly to the sheriff. 009.05 Effect of Honoring a Seizure. Any person in possession of property who has been served a writ of seizure and who surrenders the property pursuant to the writ of seizure is discharged from any liability to the taxpayer with respect to the ownership or possession of property surrendered or paid over. 009.06 Effect of Refusing to Honor a Seizure. Any person in possession of property who has been served a writ of seizure and who fails or refuses to honor the writ of seizure without cause, may be held liable for the amount of the writ of seizure up to the value of the property of the taxpayer under his or her control at the time the writ of seizure was served. The person who fails or refuses to honor the writ may be subjected to the same collection provisions as set forth in Chapter 36 of these regulations. 009.07 Property Seized by the County Sheriff. Any property that is seized by the county sheriff will be sold by the county sheriff at public auction under the authority of Chapter 25, Article 15 of the Nebraska Revised Statutes. 009.08 Any property seized by the Department will be sold under the authority of Neb. Rev. Stat. § 77-3906 as follows: 009.08A Seized property will be secured as safely as possible before sale for at least 20 days to give the taxpayer or any other persons known to have an interest in the property the opportunity to contest the seizure or claim an exemption. 009.08B A minimum of 20 days prior to the date of the sale, the taxpayer and any other persons with an interest in the property must be notified by mail of the date, time, and place of the sale. The notice must specify the amount due and contain: 009.08B(1) In the case of real property, or rights to real property, a legal description of the property seized; or 009.08B(2) In the case of all other property, or rights to property, an account of the property seized. 009.08C In addition to personal notification of the taxpayer and other persons with an interest in the property, the Department must publish a notice in a newspaper of general circulation in the county where the sale is to be held at least once per week for four successive weeks. If there is no newspaper of general circulation, a notice must be posted in three public places within the county. 009.08D The notice must contain: 009.08D(1) A description of the property to be sold; 009.08D(2) A statement of the type of tax due and the amount, including interest, penalties, and costs; 009.08D(3) The name of the delinquent taxpayer; and 009.08D(4) A statement that unless the amount due, including interest, penalties, and costs, is paid on or before the time fixed in the notice for the sale; or security in an amount determined by the Tax Commissioner is placed with the Tax Commissioner, or his or her authorized representative, on or before that time, the property, or so much of it as is necessary, will be sold in accordance with law and the notice. 009.08E At the sale, the Department will sell the property at public auction to the highest bidder or sell it under sealed bids in accordance with law. If several items of property were seized, the items may be offered separately, in groups, or in the aggregate, and may be sold using whichever method produces the highest aggregate amount. Payment for the property must be tendered in certified funds or cash on the day of the sale. If the buyer cannot tender certified funds or cash, the Department will immediately proceed to sell the property again in the same manner. 009.08F After the sale, the Department must issue a bill of sale or deed to the buyer. The bill of sale or deed vests the interest or title to the property in the purchaser. If the property is real estate, the purchaser must record the deed in the appropriate county. The unsold portion of any property seized remains in the custody and control of the Tax Commissioner until offered for sale again under this section or redeemed by the taxpayer. 009.09 If the property seized and sold under this section is not sufficient to satisfy the demand for payment for which the seizure was made, the sheriff or an authorized employee may thereafter, and as often as necessary, seize and sell any other property of the taxpayer that is available for seizure until the amount due from the taxpayer, together with all expenses, is fully paid. The procedures described in this regulation will govern any subsequent seizure and sale of any property of the taxpayer. 009.10 If any other person having an interest or lien upon the property files a notice of his or her interest or lien with the Tax Commissioner before the sale, the Tax Commissioner must withhold any excess pending a determination of the rights of the respective parties by a court of competent jurisdiction. If, for any reason, the taxpayer is not available, the Tax Commissioner must deposit the excess money with the State Treasurer, as trustee for the taxpayer or his or her heirs, successors, or assigns. If the money received from the sale exceeds the total of all amounts due, together with all expenses, and if there is no other interest in or lien upon the money received, the Tax Commissioner must return the excess to the taxpayer and obtain a receipt. Any interest earned will not be paid to the taxpayer. 009.11 All employees and officers of companies must open all books containing evidence or statements relating to the property eligible for seizure, on demand of a sheriff or an authorized employee about to seize, or having seized, any property. 009.12 Property seized by the Department may be returned to the taxpayer when: 009.12A The amounts due, together with all expenses are paid in full or a payment agreement is reached with the Department; 009.12B Return of the property will facilitate collection of the tax liability; 009.12C The taxpayer deposits security with the Tax Commissioner in the form prescribed in Reg-36-012.05 and in an amount equal to the tax liability, and any interest, penalties, and costs; or 009.12D The Tax Commissioner determines that the seizure was improper or unnecessary. 009.13 A taxpayer or any other person with an interest in the property seized by the Department may request in writing a determination that a seizure of property was invalid within 20 days after service of the writ of seizure. 009.13A The Department must respond to the taxpayer's request in writing within ten days of receipt of the request, and mail its response to the requesting taxpayer or other person with an interest in the property by first class mail. 009.13B Any person who disagrees with the decision may appeal as provided in Neb. Rev. Stat. § 84-917. (Neb. Rev. Stat. §§ 77-3906 and 77-3908.October 26, 2014.)