Tax Type
Estate Tax
Description
Charge or Credit Against Estate
Topic
Payment and Refund
Date Issued
09-06-1984
[Opinion - Virginia Attorney General: 1984 at 310]
REQUEST BY: Honorable Frank Medico Member, House of Delegates
OPINION BY: Gerald L. Baliles, Attorney General
OPINION:
You have asked several questions concerning § 58-1010 of the Code of Virginia. That section provides, in pertinent part:
"Any person indebted to or having in his hands estate of a person assessed with taxes or levies may be applied to in writing by the officer for payment thereof out of such debt or estate and a payment by such person of such taxes or levies, either in whole or in part, shall entitle him to a charge or credit for so much on account of such debt or estate against the party so assessed."
First, you have expressed concern that a locality's use of § 58-1010 makes an employer liable for an employee's delinquent personal property tax and that such use does not constitute due process and is confiscatory. §58-1010 does not, in any manner, transfer an employee's liability for his personal property tax to his employer. Procedures under § 58-1010 simply provide the locality direct access to the assets (wages) of the employee taxpayer in the hands of the employer to expedite the locality's tax collection. The employer must pay to the taxing authority the amount recited in the § 58-1010 notice, only to the extent that he, the employer, is indebted to the employee for wages earned. The sample notice you enclose properly recites that payment is demanded "for so much thereof as may be in your hands on account of such . . . indebtedness."
In addition, you have asked whether a locality may use procedures under § 58-1010 to require an employer to withhold from an employee's wages amounts owed by the employee for delinquent personal property taxes. You also have asked whether § 58-1010 applies to salary earned by an employee but not yet paid by the employer. I am of the opinion that the procedures available under § 58-1010 do apply to employers who hold wages to be paid to employees, provided the locality properly avails itself of those procedures.
Finally, you have asked whether the sample notice which you enclosed properly effects collection under § 58-1010. In this regard, I am enclosing a copy of an Opinion dated September 5, 1984, which I sent to the Honorable Francis X. O'Leary, Jr., Treasurer for Arlington County. As you can see from that Opinion, because of the recent case of Harris v. Bailey, 574 F.Supp. 966 (W.D. Va. 1983),1 I suggest that localities using § 58-1010 should ensure that copies of notices are timely sent to the taxpayers, that the notices outline major exemptions, and that the notices inform the taxpayers of the procedures by which they may seek relief. To the extent that a prior Opinion of this Office, found in the 1978-1979 Report of the Attorney General at 265, conflicts with this Opinion, the prior Opinion is expressly overruled.
1 Harris v. Bailey involved an attack on Virginia garnishment laws which have since been amended to cure the defect found by the court in that case. Because of the similarity in the procedures, it is possible that the holding of that case may be applied to § 58-1010.
Attorney General's Opinion