A. Sales Tax Constitutes Lien: Sales and lodging tax plus penalties, interest and costs of collection shall be a first and prior lien on the tangible personal property sold, purchased, stored, used, distributed, or consumed, and when such tax is collected by retailers or agents, then, the sales and lodging tax imposed by sections hereunder shall be a first and prior lien upon the goods and business fixtures of or used by any retailer under lease, title retaining contract or other contract arrangement, and shall take precedence on all such property over other liens or claims of whatsoever kind or nature.
B. Sale Of Business; Purchases Subject To Lien:
1. Sale Of Business: Any person who shall sell out his business or stock of goods, or shall quit business, shall be required to make out the return as provided in this chapter, within ten (10) days after the date he sold his business or stock of goods, or quit business, and his successor in business shall be required to withhold sufficient amount of the purchase money to cover the amount of said taxes due and unpaid until such time as the former owner shall produce a receipt from the town manager showing that the taxes have been paid, or a certificate that no taxes are due. (See also subsection 3-2-8E, new business purchases, of this chapter.)
2. Purchases Subject To Lien: If the purchaser of a business or stock of goods shall fail to withhold the purchase money as above provided and the taxes shall be due and unpaid after ten (10) day period allowed, he, as well as the seller, shall be personally liable for the payment of the taxes unpaid by the former owner. Likewise, anyone who takes any stock of goods or business fixtures of or used by any person under lease, title retaining contract or other contract arrangement, by purchase, foreclosure sale, or otherwise, takes same subject to the lien for any delinquent sales taxes owed by such person, and shall be liable for the payment of all delinquent sales taxes of such prior owner, not, however, exceeding the value of the property so taken or acquired.
3. No Final Inspection Or Certificate Of Occupancy Unless Tax Paid: No final inspection shall be made by the town building inspector, and no certificate of occupancy shall be issued unless an audit has either been completed by the manager and all sales taxes due have been paid or arrangements therefor made with the town manager, or the town manager has specifically waived such audit.
C. Status Of Unpaid Tax In Bankruptcy And Receivership: Whenever the business or property of any taxpayer subject to this chapter shall be placed in receivership, bankruptcy or assignment for the benefit of creditors, or seized under distraint for property taxes, all taxes, penalties and interest imposed by this chapter and for which said retailer is in any way liable under the terms of this chapter, shall be a prior and preferred lien against all the property of said taxpayer, and no sheriff, receiver, assignee, or other officer shall sell the property of any person subject to this chapter under process or order of any court, without first ascertaining from the town manager the amount of any taxes due and payable under this chapter, and if there be any such taxes due, owing or unpaid, it shall be the duty of such officer to first pay the amount of said taxes out of the proceeds of said sale before making payment of any monies to judgment creditor or other claims of any nature whatsoever.
D. Refusal To Make Returns; Estimate Of Taxes; Notice Of Final Determination Assessment; Demand For Payment:
1. Assessment Of Taxes: If any person or taxpayer or vendor fails, neglects, or refuses to collect the tax or make a return and pay the tax as required by this chapter or should fail to remit the proper amount of tax or underpays the tax because of negligence, fraud or on a regular basis, the town manager shall make an estimate based upon such information as may be available and shall add thereto the additions to tax, penalty and interest as set forth in section 3-2-13 of this chapter and promptly thereafter give to the delinquent taxpayer written notice of such estimated taxes, penalty and interest which notice of assessment shall be served personally or by certified or registered mail and which notice of final determination assessment and demand for payment shall be due and payable ten (10) days from such service.
E. Notice Of Tax Lien: If any taxes, penalty or interest imposed by this chapter and shown due by returns filed by the taxpayer or as shown by assessments duly made as provided herein, are not paid within ten (10) days after the same are due, the town shall issue a notice to the taxpayer by certified mail, setting forth the name of the taxpayer, the amount of the tax, penalties and interest, the date of the accrual thereof, and tangible personal property of the taxpayer.
F. Issuance Of Distraint Warrant; Filing Of Lien: Said notice shall be on forms prescribed by the town manager and shall be verified by him or his duly qualified representative whose duties are the collection of such tax, and may be filed in the office of the clerk and recorder of any county in the state in which the taxpayer owns real or tangible personal property, and the filing of such notice shall create such lien on such property in the county and constitute notice thereof. After said notice has been filed, or concurrently therewith, or at any time when taxes due are unpaid, whether such notice be filed or not, the town manager may issue a distraint warrant as provided in subsection H of this section.
G. Jeopardy Assessment And Distraint:
1. Jeopardy Enforcement: If the town manager finds that collection of the tax will be jeopardized by delay in his discretion, he may declare the taxable period immediately terminated, determine the tax, and issue notice and demand for payment thereof, and having done so, that tax shall be due and payable forthwith, and the town manager may proceed immediately to collect such tax as provided in subsection F of this section.
2. Immediate Enforcement Action: In any other case wherein it appears that the revenue is in jeopardy, the town manager may immediately issue demand for payment; and, regardless of the provisions of sections 3-2-15 and 3-2-16 of this chapter, the tax shall be due and payable forthwith and, in his discretion, the town manager may proceed immediately to collect said tax as provided in subsection H of this section.
3. Security For Payment: Collection under either subsection G1 or G2 of this section may be stayed if the taxpayer gives such security for payment as shall be satisfactory to the town manager.
H. Methods Of Enforcing Collection:
1. When Distraint Issued: The town manager may issue a warrant under his own hand directed to any "sheriff" of any county of the state, commanding him to distrain, seize, and sell the personal property of the taxpayer, except such personal property as is exempt from execution and sale by any statute of this state, for the payment of the tax due together with penalties and interest accrued thereon and cost of execution.
a. When any deficiency in tax is not paid within ten (10) days from the mailing of notice of final determination assessment and demand for payment therefor and no hearing has been requested and no appeal from such deficiency assessment 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 (10) days from the mailing of assessment and 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 subsection G of this section.
2. Distraint Seizure; Advertisement Of Sale; Owner Recovers Seized Property By Purchase: 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 (18) 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 a legal newspaper within the county wherein distraint is made, or, in lieu thereof and in the discretion of the town manager the agent or sheriff shall cause such notice to be publicly posted at the courthouse of the county wherein such distraint is made, and copies thereof to be posted in at least two (2) other public places within said county. The time fixed for the sale shall not be less than ten (10) days nor more than sixty (60) 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 or sheriff if he deems it advisable, but not for a time to exceed in all ninety (90) days from the date first fixed for the sale. When any personal property is advertised for sale under distraint as aforesaid, the agent or sheriff 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 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 or sheriff conducting the sale may declare the same to be purchased by him for the town. The property so purchased may be sold by the agent or sheriff under such regulations as may be prescribed by the town manager. 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 mortgage or other evidence of right of possession.
3. Certificate Of Sale; Evidence Of Purchase: In all cases of sale, the agent or sheriff making the sale shall issue a certificate of sale to each purchaser, and such certificate shall be prima facie evidence of the right of the agent or sheriff to make such sale, and the conclusive evidence of the regularity of his proceedings in making the sale; and shall transfer to the purchaser all right, title, and interest of such delinquency in and to the property sold; and where such property consists of certificates of stock in the possession of the agent or sheriff, the certificate of sale shall be notice, when received, to any corporation, company, or association of said transfer, and said certificate of such sale shall be 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 or sheriff, the certificate of sale shall be good and valid evidence of title in the person holding the same, as against any other person. Any surplus remaining above the taxes, penalties, interest, costs, and expenses of making the seizure and of advertising the sale, shall be returned to the owner, or such other person having a legal right thereto, and on demand, the town manager shall render an account in writing of the sale.
4. Filing And Release Of Lien: Any employee, agent, or representative of the town manager to whom a warrant has been issued may file a notice of lien in such forms as the town manager may prescribe with the person in possession of any personal property or right to property belonging to the taxpayer, and if not previously recorded, the filing of such notice of lien shall operate from the date of such filing. The town manager 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. Lien Released: Any lien for taxes as shown on the records of the county clerk and recorder as herein provided, upon payment of all taxes, penalties, and interest covered thereby, shall be released by the town manager in the same manner as mortgages and judgments are released.
I. Recovery Of Unpaid Tax By Action At Law:
1. Action At Law: The town manager may also treat any such taxes, penalties, interest, or collection costs due and unpaid as a debt due the town from the taxpayer. In case of failure to pay the tax, or any portion thereof, or any penalty or interest thereon when due, the town manager may receive at law the amount of such taxes, penalties, interest, and collection costs in such county or district court of the county wherein the taxpayer resides or has his principal place of business having jurisdiction of the amounts sought to be collected. The return of the taxpayer or the assessment made by the town manager as herein provided, shall be prima facie proof of the amount due.
2. Writs Of Attachment: Such actions may be actions in attachment, and writs of attachment may be issued to the sheriff, and in any such proceedings, no bond shall be required of the town manager nor shall any sheriff require of the town manager an indemnifying bond for executing the writ of attachment, or writ of execution upon any judgment entered in such proceedings; and the town manager may prosecute appeals or writs of error, in such cases without the necessity of providing bond therefor. It shall be the duty of the town attorney, when requested by the town manager to commence action for the recovery of taxes due under this chapter, and this remedy shall be in addition to all other existing remedies or remedies provided in this chapter.
3. Civil Action To Enforce Lien: In any case where there has been a refusal or neglect to pay any tax due the town of Winter Park and statement or notice shall have been filed, which under law, creates a lien upon any real property for such tax, the town manager may cause a civil action to be filed in the district court of the county in which is situated any real property which is subject to said lien, to enforce the lien of the town of Winter Park for such tax upon the real property situated in the county or in any other county in the state which may be subject to such lien or to subject any real property or any right, title, or interest in real property to the payment of such tax. The court shall decree a sale of such real property and distribute the proceeds of such sale, according to the findings of such court in respect to the interest of the parties and of the town of Winter Park the proceedings in such action and the manner of sale, the period for and manner of redemption from such sale and the execution of deed of conveyance shall be in accordance with the law and practice relating to foreclosures of mortgages upon real property. In any such action, the court may appoint a receiver of the real property involved in such action if equity so requires.
J. Party Defendant: In any action affecting the title to real estate or the ownership or rights to possession of personal property, the town of Winter Park may be made a party defendant for the purpose of obtaining an adjudication of determination of its lien upon the property involved therein, and in any such action service of summons upon the town manager or any other person permitted by law, shall be sufficient service and binding upon the town of Winter Park.
K. Certificate Of Discharge; Partial; Values Determined:
1. Certificate Of Discharge Subject To Lien: If any property, real or personal, under the law, shall be subject to a lien for the payment of any tax due the town of Winter Park, the town manager may issue a certificate of discharge of any part of the property subject to the lien if he finds that the taxes have been paid in relationship to the fair market value of such property.
2. Certificate Of Discharge At Part Of Property: If any property, real or personal, under the law, shall be subject to a lien for the payment of any tax due to the town of Winter Park the town manager may issue certificate of discharge of any part of the property subject to the lien if there be paid over to the town manager, in part, satisfaction of the liability in respect to such tax an amount determined by the town manager which shall not be less than the value, as determined by him, of the interest of the town of Winter Park, in the part to be so discharged.
3. How Values Determined: In determining such values, the town manager shall give consideration to the fair market value of the part to be so discharged and to such lien thereon as have priority to the lien of the town of Winter Park.
4. Certificate Of Release Conclusive: A certificate of release or of partial discharge issued under subsection K1 of this section shall be held conclusive in order that the lien of the town of Winter Park upon the property release therein is extinguished, but shall not extinguish, nor release, any portion of the lien nor property not specified in the release.
L. Summons To Court For Violation Of Code: The town manager or his duly authorized agent may, at the discretion of the town manager summons to Winter Park municipal court any person who may be in violation of this chapter as set forth in section 3-2-18 of this chapter and elsewhere herein. (See subsection 3-2-13H of this chapter for special penalty.)
M. Closing Agreements:
1. Satisfaction Of Liability: For the purpose of facilitating the settlement and distribution of estates, trusts, receiverships, other fiduciary relationships, and corporations in the process of dissolution or which have been dissolved, the town manager may agree with the fiduciary or director upon the amount of taxes due from the decedent, or from the decedent's estate, the trust, receivership, or other fiduciary relationship, or corporation, for any of his or its taxable periods, under the provisions of the taxes covered by this chapter and except upon a showing of fraud, malfeasance or misrepresentation of a material fact, payment in accordance with such agreement shall be full satisfaction of the taxes for the taxable periods to which the agreement related.
2. Personal Liability: Except as provided in subsection M4 of this section, any personal representative of a decedent, or of the estate of a decedent, or any trustee, receiver, or other person acting in a fiduciary capacity, or any director of a corporation in the process of dissolution or which has been dissolved, who distributes the estate or fund in his control without having first paid any taxes covered by this chapter due from such decedent, decedent's estate, trust estate, receivership, or corporation, covered by this chapter and which may be assessed within the time limited by this chapter.
3. Notification Of Liability: The distributee of a decedent's estate, or a trust estate or fund or the stockholder of any dissolved corporation who receives any of the property of such decedent's estate, trust estate, fund, or corporation, shall be liable to the extent of the decedent, trust estate, fund, or corporation, covered by this chapter and which may be assessed within the time limited by this chapter. Notice to such distributee or stockholder shall be given in the same manner and within the time limit which would have been applicable had there been no distribution.
4. Limitation Of Liability:
a. In case the tax imposed by this chapter is due from a decedent, or his estate, or by a corporation, in order for personal liability under subsection M2 of this section to remain in effect, determination of the tax due shall be made and notice and demand therefor shall issue within eighteen (18) months after written request for such determination, filed after the filing of the decedent's final return or filed after the filing of the return of the decedent's estate with respect to which such request is applicable, by any personal representative of such decedent, or by the corporation, filed after the filing of its return; but a request under this provision shall not extend the period of limitation otherwise applicable.
b. This subsection M4 will not apply in the case of a corporation unless:
(1) Such request notifies the town manager that the corporation contemplates dissolution at or before the expiration of such eighteen (18) month period;
(2) The dissolution is begun in good faith before the expiration of such eighteen (18) month period; and
(3) The dissolution is completed.
c. Upon the expiration of said eighteen (18) month period, without determination being made and notice and demand being issued, the personal representative or representatives of the decedent, and the directors of the corporation no longer will be liable under the provisions of subsection M2 of this section. (Ord. 225, Series of 1994)