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Douglas County commissioners on Friday rejected consideration of a proposed ordinance that would have changed the way the Internal Revenue Service prepares property liens for filing that could have prompted a lawsuit against the county by the federal agency.
Commissioners Doug Robertson and Joe Laurance voted in favor of a motion calling for the Board of Commissioners to take no further action on the proposed ordinance submitted by the Lawmen ad hoc Steering Committee. The action essentially kills the proposal.
Commissioner Marilyn Kittelman voted against the motion offered by Robertson. She said she hadn’t been convinced to support the ordinance but said the public should be allowed to weigh in, and that wouldn’t be possible without at least scheduling it for an adoption hearing.
“We’ve heard from attorneys and we’ve heard from the people who brought the ordinance, but yet I don’t see the harm in hearing from the public,” Kittelman said.
The vote came at the end of an hourlong hearing in which the Lawman, a local activist group that claims the IRS fails to follow its own rules and regulations in attaching a lien to a piece of property for nonpayment of taxes, was allowed to press their case for the ordinance.
If enacted, the ordinance would have required an IRS agent to appear before a county recorder and personally sign each Notice of Federal Tax Lien. The agent would also have to provide a thumbprint and an IRS identification card, which would be photocopied and filed with the lien.
The IRS would also be required to file a proof of certification that the notice satisfies Oregon law.
“They are not even meeting their own stipulated minimum requirements, which is all we’re asking for in our ordinance,” Rae Copitka, a member of the Lawmen group, told the commissioners. “I think the people have the right to be not only afraid, but outraged at the practice that’s going out on here.”
Copitka was joined by Loma Wharton, chairwoman of the Lawmen group and a candidate for Douglas County clerk, in urging the commissioners to act on the ordinance. Wharton read from a booklet containing “The Constitution of the United States,” where the word “of” on the cover had been crossed out and replaced with “FOR” in heavy black pen.
Wharton has said previously that County Clerk Barbara Nielsen has allowed the IRS to record liens without following proper procedures.
Nielsen has denied the allegation, saying that she follows the same rules as all other Oregon counties and that legal opinions have agreed that the counties’ processing of liens is proper.
County Attorney Paul Meyer told the commissioners the IRS assessment and collection process “can be long and elaborate and complicated and, obviously, confusing.”
He said the county’s only role is to receive a one-page IRS Notice of Federal Tax Lien and record it.
The IRS notice identifies the taxpayer by name and address, provides a masked Social Security number for that person, the amount of unpaid taxes and a date of assessment. It also includes an IRS officer’s signature and the date and city where the notice was prepared and signed.
Meyer, who was joined at the hearing by Portland attorney Nena Cook, said the notice satisfies all federal requirements for filing of a property lien and that federal administrative rules authorizing its use have the force of law.
He noted several federal court decisions affirming the IRS’s procedures in filing tax liens. One was a 2007 case before a U.S. District Court in the District of Columbia, Spahr v. United States, where the plaintiff alleged the IRS failed to certify the Notice of Federal Tax Lien,” one of the claims the Lawmen group claims is lacking in the local process.
In the Spahr decision, U.S. District Judge Ellen Segal Huvelle dismissed the claim “because it lacks even arguable merit.” Huvelle also noted that property liens are valid when filed on Form 668, the Notice of Federal Tax Lien.
“The point of these cases is that the federal courts have consistently held that the IRS’s nonjudicial administrative collection activity, such as filing notices of federal tax liens, do not violate the Due Process Clause (of the U.S. Constitution) so long as there is a post-seizure opportunity for a hearing, and, in fact, there is one,” Meyer said.
A March 7 letter to Meyer from an IRS attorney in Portland said the agency would take legal action against the county if it enacted the Lawmen ordinance.
“There is no doubt we will lose such a lawsuit because it is our professional opinion that the IRS’s legal analysis is correct,” Meyer said.
Robertson, who last fall urged the Board of Commissioners to shelve the proposed ordinance after receiving legal advice that the county was property filing the IRS liens, said he had not been convinced the Lawmen group’s claims were valid.
The motion offered by Robertson and approved on the 2-1 vote also affirmed that Nielsen and her office are properly handling the lien notices presented to the county by the IRS.
• You can reach reporter John Sowell at 957-4209 or by e-mail at jsowell@newsreview.info.
Commissioners Doug Robertson and Joe Laurance voted in favor of a motion calling for the Board of Commissioners to take no further action on the proposed ordinance submitted by the Lawmen ad hoc Steering Committee. The action essentially kills the proposal.
Commissioner Marilyn Kittelman voted against the motion offered by Robertson. She said she hadn’t been convinced to support the ordinance but said the public should be allowed to weigh in, and that wouldn’t be possible without at least scheduling it for an adoption hearing.
“We’ve heard from attorneys and we’ve heard from the people who brought the ordinance, but yet I don’t see the harm in hearing from the public,” Kittelman said.
The vote came at the end of an hourlong hearing in which the Lawman, a local activist group that claims the IRS fails to follow its own rules and regulations in attaching a lien to a piece of property for nonpayment of taxes, was allowed to press their case for the ordinance.
If enacted, the ordinance would have required an IRS agent to appear before a county recorder and personally sign each Notice of Federal Tax Lien. The agent would also have to provide a thumbprint and an IRS identification card, which would be photocopied and filed with the lien.
The IRS would also be required to file a proof of certification that the notice satisfies Oregon law.
“They are not even meeting their own stipulated minimum requirements, which is all we’re asking for in our ordinance,” Rae Copitka, a member of the Lawmen group, told the commissioners. “I think the people have the right to be not only afraid, but outraged at the practice that’s going out on here.”
Copitka was joined by Loma Wharton, chairwoman of the Lawmen group and a candidate for Douglas County clerk, in urging the commissioners to act on the ordinance. Wharton read from a booklet containing “The Constitution of the United States,” where the word “of” on the cover had been crossed out and replaced with “FOR” in heavy black pen.
Wharton has said previously that County Clerk Barbara Nielsen has allowed the IRS to record liens without following proper procedures.
Nielsen has denied the allegation, saying that she follows the same rules as all other Oregon counties and that legal opinions have agreed that the counties’ processing of liens is proper.
County Attorney Paul Meyer told the commissioners the IRS assessment and collection process “can be long and elaborate and complicated and, obviously, confusing.”
He said the county’s only role is to receive a one-page IRS Notice of Federal Tax Lien and record it.
The IRS notice identifies the taxpayer by name and address, provides a masked Social Security number for that person, the amount of unpaid taxes and a date of assessment. It also includes an IRS officer’s signature and the date and city where the notice was prepared and signed.
Meyer, who was joined at the hearing by Portland attorney Nena Cook, said the notice satisfies all federal requirements for filing of a property lien and that federal administrative rules authorizing its use have the force of law.
He noted several federal court decisions affirming the IRS’s procedures in filing tax liens. One was a 2007 case before a U.S. District Court in the District of Columbia, Spahr v. United States, where the plaintiff alleged the IRS failed to certify the Notice of Federal Tax Lien,” one of the claims the Lawmen group claims is lacking in the local process.
In the Spahr decision, U.S. District Judge Ellen Segal Huvelle dismissed the claim “because it lacks even arguable merit.” Huvelle also noted that property liens are valid when filed on Form 668, the Notice of Federal Tax Lien.
“The point of these cases is that the federal courts have consistently held that the IRS’s nonjudicial administrative collection activity, such as filing notices of federal tax liens, do not violate the Due Process Clause (of the U.S. Constitution) so long as there is a post-seizure opportunity for a hearing, and, in fact, there is one,” Meyer said.
A March 7 letter to Meyer from an IRS attorney in Portland said the agency would take legal action against the county if it enacted the Lawmen ordinance.
“There is no doubt we will lose such a lawsuit because it is our professional opinion that the IRS’s legal analysis is correct,” Meyer said.
Robertson, who last fall urged the Board of Commissioners to shelve the proposed ordinance after receiving legal advice that the county was property filing the IRS liens, said he had not been convinced the Lawmen group’s claims were valid.
The motion offered by Robertson and approved on the 2-1 vote also affirmed that Nielsen and her office are properly handling the lien notices presented to the county by the IRS.
• You can reach reporter John Sowell at 957-4209 or by e-mail at jsowell@newsreview.info.
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