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(a) Persons claiming they are aggrieved under the Business and Tax Regulations Code must prior to seeking judicial relief:
(1) pay the amount of the disputed tax, penalty, and interest; and
(2) present a claim for refund to the Controller and allow action to be taken on such claim, pursuant to Section 1113.
(b) The person who paid the tax, his or her guardian or conservator, the executor of his or her will, or the administrator of his or her estate may bring an action in Superior Court against the City and County of San Francisco to recover taxes, interest, or penalties that the City has refused to refund on a claim for refund pursuant to Section 1113. No other person may bring such an action; but if another person should do so, judgment shall not be rendered for the plaintiff. Any suit for refund of taxes, interest, or penalties shall be commenced within the time provided by California Government Code section 945.6, as amended from time to time. Persons claiming they are aggrieved under the Business and Tax Regulations Code may not file any type of judicial action other than a refund action. Notwithstanding any other section of this Code, no claim or defense that, for any reason, a tax is not due or cannot be applied under this Code may be raised in any judicial proceeding except in an action for refund of the disputed tax.
(a) In the administration of this ordinance the recorder shall interpret its provisions consistently with those Documentary Stamp Tax Regulations adopted by the Internal Revenue Service of the United States Treasury Department which relate to the Tax on Conveyances and are identified as Sections 47.4361-1, 47.4361-2 and 47.4362-1 of Part 47 of Title 26 of the Code of Federal Regulations, as the same existed on November 8, 1967, except that for the purposes of this ordinance, the determination of what constitutes “realty” shall be determined by the definition or scope of that term under state law.
(b) Notwithstanding subsection (a), “realty sold” includes any acquisition or transfer of ownership interests in a legal entity that would be a change of ownership of real property under California Revenue and Taxation Code Section 64. In such cases, there shall be deemed to have been an instrument executed whereby there was conveyed, for fair market value, all real property that experienced a change of ownership under California Revenue and Taxation Code Section 64.
(Ord. 315-67, App. 12/12/67; amended by Ord. 377-84, App. 8/31/84; Proposition N, 4, 11/4/2008; Proposition W, 11/8/2016)
(a) Deficiency Determinations. Whenever the County Recorder has reason to believe that a person has failed to pay or has underpaid the tax imposed by this Article 12-C, the County Recorder may compute and determine any tax, penalty, or interest deficiency upon the basis of any information within the County Recorder’s possession or that may come into the County Recorder’s possession. The County Recorder may make one or more deficiency determinations for the same deed, instrument or writing by which any lands, tenements, or other realty sold within the City and County of San Francisco is granted, assigned, transferred, or otherwise conveyed.
(b) Deficiency Determinations; Notice. Upon making a determination pursuant to this Section 1115, the County Recorder shall record the notice of deficiency determination, and shall give to the person or persons liable for the tax, and to the owner or owners of the real property described in the notice, as said owners are shown on the records of the County Assessor, written notice of the County Recorder’s determination. Except in the case of fraud, intent to evade the tax imposed by this Article 12-C
, or the failure to either record the deed, instrument or writing effecting a transfer subject to the tax or file the affidavit required under Section 1111(d), in which case there is no statute of limitations, and unless the person liable for the tax has agreed in writing to extend the period for service of a notice of deficiency determination prior to such period expiring, every notice of a deficiency determination shall be served, in the manner provided by Section 1115.3, within three years after the later of:
(1) The date the tax became delinquent;
(2) The date the person liable for the tax recorded the deed, instrument or writing effecting a transfer subject to the tax with the County Recorder’s Office, if such document was recorded; or
(3) The date the person liable for the tax furnished to the County Recorder the affidavit required under Section 1111(d), if the deed, instrument or writing effecting a transfer subject to the tax was not recorded with the County Recorder’s Office.
(c) Deficiency Determinations; Content. The County Recorder’s notice of deficiency determination shall include the following information:
(1) The amount of delinquent tax;
(2) The interest that has accrued and shall continue to accrue on the delinquent tax;
(3) The delinquency penalty then due;
(4) The additional penalty that shall accrue if the tax is not paid by the date the deficiency determination is due and payable;
(5) A description of the lands, property, or other realty sold that was transferred without full payment of tax; and
(6) A notice that if the tax, penalties, and interest are not paid within 30 days after service of the notice of deficiency determination upon the person liable for the tax, the County Recorder may commence collection actions for the tax, including, but not limited to, the lien proceedings under Section 1115.1.
(d) Deficiency Determinations; Due and Payable. The County Recorder’s deficiency determination shall be due and payable 30 days after service of the notice of deficiency determination upon the person liable for the tax.
(e) Jeopardy Determinations.
(1) Duty of County Recorder. If the County Recorder believes that the collection of any tax imposed by this Article 12-C will be jeopardized, in whole or in part, by delay, the County Recorder shall serve notice upon the person determined to be liable therefor of his or her determination of jeopardy and of the tax required to be paid to the City, and demanding immediate payment thereof, together with any interest and penalty determined to be due. The County Recorder may consider all facts and circumstances relevant to determining whether the collection of any tax will be jeopardized by delay, including but not limited to indications that the person liable for the tax intends or is taking action to discontinue business activities in the City, dissipate or otherwise remove assets from the City, or sell, exchange, assign, or otherwise dispose of personal or business income or property. The County Recorder also may consider whether the person liable for the tax is insolvent or likely to become insolvent after the taxes at issue are assessed or collected; and whether the person liable for the tax is or has been uncooperative or unresponsive in connection with any investigation, examination, audit, deficiency determination, assessment, or collection action or procedure undertaken by the County Recorder or Tax Collector.
(2) When Due and Payable. A jeopardy determination of tax, interest, or penalty is immediately due and payable upon the service of the notice of jeopardy determination on the person determined to be liable therefor. Prior to service of such notice, the County Recorder or Tax Collector may, notwithstanding the provisions of Section 1115.4, record a lien in the amount due as set forth in the notice of jeopardy determination. Immediately upon service of such notice, the Tax Collector may, notwithstanding the provisions of Section 1115.4, commence lien proceedings under Section 1115.1, seek summary judgment pursuant to Section 1115.5, and/or may commence a collection action in any court having jurisdiction over the matter.
(3) Service of Notice. Service of notice of a jeopardy determination shall be provided in the manner set forth in Section 1115.3.
(4) Effect of Non-Payment. If the amount specified in the jeopardy determination is not paid within 15 days after service of notice thereof upon the person against whom the determination is made, the additional 10% penalty provided in 1115.2(a)(1) shall attach to the tax or the amount of the tax required to be collected, regardless of the number of days that have passed since the date of the original delinquency.
(f) Effect of County Recorder’s Determination. The County Recorder’s issuance of a notice of deficiency determination or a notice of jeopardy determination with respect to any document or transaction, or the County Recorder’s failure to issue such a notice, may not be treated as precedent for the treatment of any future document or transaction. The County Recorder’s issuance of a deficiency determination or a jeopardy determination to a person for a document or transaction shall not bar the County Recorder from making further determinations regarding the liability of the person for that document or transaction.
(a) Initiating Lien Proceedings. If the full amount of the delinquent tax, penalties, and interest is not paid within 30 days after service of the notice of deficiency determination, the County Recorder, within one year of the deficiency determination becoming due and payable, may report the delinquency to the Board of Supervisors (“the Board”) and request the Board to initiate proceedings to impose a lien for the total unpaid balance against the real property that was transferred by the document delivered without full payment of tax. Said report shall, for each delinquent account, contain the names of the persons liable for the tax, the total amount due, including delinquent taxes, penalties, and interest, a description of the lands, tenements, or other realty sold that was transferred by the document delivered without full payment of tax, and the date on which the County Recorder served its notice of deficiency determination. Upon receipt of such report the Board shall fix a time and place for hearing the report and any protests or objections thereto and shall cause notice of the hearing to be mailed not less than 10 days prior to the date of hearing to each person liable for the tax and to the owner or owners of the real property described in the recorded notice of deficiency determination.
(b) Hearing. At the time so fixed, the Board shall meet to hear the report and any protests or objections thereto. The Board may make such revisions, corrections, or modifications of the report as it may deem just; and in the event that the Board is satisfied with the correctness of the report (as submitted or as revised, corrected, or modified), it shall be confirmed. The decision of the Board on the report and on all protests or objections thereto shall be final and conclusive; provided, however, any delinquent account may be removed from the report by payment in full at any time prior to confirmation of the report. The Clerk of the Board shall cause the confirmed report to be verified in a form sufficient to meet recording requirements.
(c) Special Assessment Lien. Upon confirmation of the report by the Board, the unpaid balance reported therein, including tax, penalties, and interest, shall constitute a special assessment against the real property that was transferred by the document delivered without full payment of tax; provided, however, that the special assessment, and the lien created thereby, shall attach only to interests in the property that were held, on the date the notice of deficiency determination was recorded, by persons liable for the tax. Each such assessment shall be subordinate to all existing special assessment liens previously imposed upon such parcels and paramount to all other liens except those for State, County, and municipal taxes with which it shall be in parity. The lien shall continue until the assessment and all interest and penalties due and payable thereon are paid. All laws applicable to the levy, collection, and enforcement of municipal taxes shall be applicable to said special assessment. The Clerk of the Board shall give notice of the confirmation of the report to each person liable for the tax and to the owner or owners of the real property described in the recorded notice of deficiency determination and shall cause the confirmed and verified report to be recorded in the County Recorder’s office and the special assessment lien on each parcel of property described in the report shall thereupon secure an additional charge for administrative expenses of $50 or 10% of the unpaid balance, whichever is higher. An action to set aside the special assessment and the lien created thereby shall be commenced within one year from and after the date that notice of the confirmation of the report was given to the persons liable for the tax and to the property owners.
(d) Filing with Controller and Tax Col- lector. The Clerk of the Board shall file a certified copy of each confirmed report with the Controller and Tax Collector within 10 days after confirma- tion of the report, whereupon it shall be the duty of said officers to add the amount of each special assessment to the next regular bill for taxes levied for municipal purposes against the respective par- cels of property described in the confirmed report.
(e) Payment of Special Assessment. On payment to the Tax Collector of the special assessment, including delinquent taxes, accrued penalties, interest, and the administrative expense charge authorized by Section 1115.1(c) above, the Tax Collector shall cause a Release of Lien to be recorded with the County Recorder and shall pay the statutory recording fee from the administrative expense charge. Except for the fee paid to record the Release of Lien, all sums collected by the Tax Collector pursuant to this Article 12-C shall be deposited to the General Fund.
(a) Penalties.
(1) Delinquency Penalties. If any tax is not paid prior to becoming delinquent, a delinquency penalty of 25% of the amount of tax due shall accrue. In the event only a portion of the tax is unpaid prior to becoming delinquent, the penalty shall accrue only as to the portion remaining unpaid. An additional penalty of 10% shall accrue if the tax remains unpaid on the ninetieth day following the date of the original delinquency.
(2) Penalties for Fraud or Intent to Evade Tax. When the County Recorder determines that the failure of any person to timely pay any tax due under this Article 12-C was attributable to fraud or an intent to evade this Article 12-C, the County Recorder shall impose a penalty in the amount of 50% of the amount of the unpaid tax. This penalty shall be in addition to the penalty imposed under Section 1115.2(a)(1) and any other fines, penalties, or other charges imposed by law.
(b) Interest. Interest shall accrue at the rate of 1% a month, or fraction thereof, on the amount of delinquent tax, exclusive of penalties and interest, from the date the tax becomes delinquent to the date of payment.
(c) Penalties and Interest Part of Tax. Interest and penalties accrued shall become part of the tax.
(Added by Ord. 176-17, File No. 170703, App. 7/27/2017, Eff. 8/26/2017)
(Former Ord. 377-84, App. 8/31/84; amended by Ord. 17-98, App. 1/16/98; Ord. 20-09, File No. 081450, App. 2/5/2009; repealed by Ord. 201-13
, File No. 130276, App. 10/3/2013, Eff. 11/2/2013)
Any notice required to be given hereunder by the County Recorder or the Board of Supervisors to any person shall be sufficiently given or served if it is personally served upon such person or if it is deposited, postage prepaid, in a post office letter box addressed to the person at the address for such person given on an affidavit described in Sections 1111(c) or (d), a deed, instrument or writing subject to the tax, a refund claim form, or written protests or objections to a report of delinquency filed for or on behalf of the person or, if no such address is available, to the person at the official address maintained by the County Assessor for mailing of tax bills levied against the real property that was transferred without full payment of tax or, if no such address is available, to the person at the address of said real property. In the case of service by mail, the service is complete at the time of deposit with the United States Postal Service.
(a) The amount of any tax, penalty, or interest imposed by this Article 12-C shall be deemed a debt owed to the City and County of San Francisco. Any person owing the tax shall be liable in an action brought in the name of the City and County of San Francisco for the recovery of such debt. In such action a reasonable attorney’s fee shall be awarded the plaintiff. The provisions of this Section 1115.4 shall not be deemed a limitation upon the right of the City and County of San Francisco to bring any other action, whether criminal, legal, or equitable, based upon the failure to pay the tax, penalty, or interest imposed by this Article 12-C or the failure to comply with any of the provisions hereof.
(b) (1) If a deficiency determination made against any person remains unpaid, and the delinquent taxes, penalties, interest, and fees have been referred to the Tax Collector’s Bureau of Delinquent Revenue under Section 10.38 of the Administrative Code, the Tax Collector may bring an action in the courts of this State, or any other state, or of the District of Columbia, or of the United States and its territories or possessions, or any other forum where permitted by law to recover in the name of the City any amount of the unpaid taxes, together with penalties, interest, and costs, including reasonable attorneys’ fees.
(2) In any action filed pursuant to this Section 1115.4(b), the complaint shall attach a certificate executed by the Tax Collector or his or her representative that contains the following information:
(A) the name of the person liable for the tax;
(B) a description of the lands, property, or other realty sold that was transferred without full payment of tax;
(C) the amount of the tax, penalty, and interest remaining unpaid as of the last day of the month prior to the month in which the complaint is filed; and
(D) the fact that the City has complied with all provisions of this Article 12-C in the computation and the levy of the tax, penalty, or interest.
(3) In prosecuting such actions, the Tax Collector shall be entitled to all of the provisional remedies provided by law. Any such action shall be commenced within 3 years from the date the deficiency determination issued under Section 1115 became due and payable.
(c) If a deficiency determination made against any person remains unpaid, and the delinquent taxes, penalties, interest, and fees have been referred to the Tax Collector’s Bureau of Delinquent Revenue under Section 10.38 of the Administrative Code, the Tax Collector may record a tax lien with the County Recorder, thereby creating a tax lien on all of the assessee’s property and rights to property, including realty, personalty, and intangibles. The Tax Collector may record or file such tax lien in the office of the Recorder of any California county, with the California Secretary of State, and with any other California public entity that is otherwise authorized by law to record liens. The Tax Collector may record or file such tax liens in any other office of any other jurisdiction as permitted by law. The tax lien shall identify the Tax Collector as the lienor, and the amount of the lien. Simultaneously with the recording, a copy of the tax lien shall be mailed to or personally served upon the person determined to be liable for the tax at said person’s last known address based upon the information contained in the County Assessor records. The tax lien after recordation has the force, effect, and priority of a judgment lien and continues for 10 years from the date of recording, unless sooner released or otherwise discharged.
(Added by Ord. 377-84, App. 8/31/84; amended by Ord. 176-17, File No. 170703, App. 7/27/2017, Eff. 8/26/2017)
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