Tax Type
Local Taxes
Property Tax
Description
Correction of Errors
Topic
Local Taxes Discussion
Date Issued
11-06-1987
[Opinion - Virginia Attorney General: 1987 at 556]
REQUEST BY: Honorable John T. Atkinson Treasurer for the City of Virginia Beach Municipal Center Virginia Beach, Virginia 23456-0157
OPINION BY: Mary Sue Terry, Attorney General
OPINION:
You ask whether the City of Virginia Beach may utilize the provisions of § 58.1-3971 of the Code of Virginia to remove parcels of real estate from the delinquent land books when these parcels have been determined to have been erroneously placed on those books. The Commissioner of the Revenue and City Assessor have identified parcels which do not exist but, as a result of clerical, recording errors, erroneous surveys and inaccurate deed recitals, have been assessed and placed on the delinquent land books for the years 1967 through 1982. You also ask whether alternative procedures exist to achieve this removal.
I. Applicable Statutes
Section 58.1-3971(A) provides:
The attorney shall periodically report the governing body employing him every parcel of real estate which he ascertains to be improperly placed on the delinquent land books and the governing body, upon satisfying itself of the correctness of the report, or correcting it to conform to the facts, shall certify the information to the proper clerk, and the clerk, on the order of the court of which he is clerk, shall mark his delinquent land book accordingly.
Section 58.1-3971 is a portion of Art. 4, Ch. 39 of Title 58.1 pertaining to delinquent tax lands, including the sale of these lands by the locality in which the land is located. § 58.1-3966 is in that same Article and provides, in pertinent part, that:
proceedings under this article shall be instituted and conducted in the name of the county, city or town in which the real estate lies, by such attorney as the governing body of the county, city or town employs for the purpose . . . .
The attorney referred to in § 58.1-3971(A) is the attorney employed by the governing body of the county, city or town to institute proceedings under the statute. For purposes of clarification, the word "treasurer" should be read into § 58.1-3971(A) wherever the word "clerk" appears as custodian of the records of liens on delinquent real estate since the duty of the clerk to maintain delinquent land books was shifted to the treasurer on July 1, 1985. See Ch. 131, 1985 Va. Acts 157 (amending § 58.1-3930).1 The fact that this 1985 change in the law did not also amend § 58.1-3971 appears to be a legislative oversight. The requirement in § 58.1-3971 to obtain an order of the court before striking the parcels from the records of delinquent real estate remains in effect.
Alternative procedures are found in §§ 58.1-3921 and 58.1-3924. § 58.1-3921 provides, in part:
The treasurer, after ascertaining which of the taxes and levies assessed in his county or city cannot be collected, shall, not later than August 1 in each year, make out lists as follows:
1. A list of real estate on the commissioner's land book improperly placed thereon or not ascertainable, with the amount of taxes charged thereon.
Section 58.1-3924 authorizes the following procedure for correcting errors in the land book and the delinquent real estate records:
The treasurer may, or shall at the direction of the governing body, certify to the commissioner of the revenue a copy of the list of real estate on the commissioner's land book improperly placed thereon or not ascertainable. The commissioner of the revenue shall correct his land book accordingly. The treasurer shall be given credit for the entire amount of the taxes included in the list and may destroy the tax tickets made out by him for such taxes.
When any delinquent taxes are collected, § 58.1-3930 requires the collecting officer to
transmit such payment to the treasurer, who shall give his receipt therefor and record the payment, thereby releasing the lien. Where such list is kept in a visible card index file, the treasurer may, at the time of entry of the records of payment, remove from the file the cards on which such payments have been noted; and such cards may, on certification by the Auditor of Public Accounts that the same are no longer needed for audit, be destroyed.
This section also authorizes the treasurer to maintain the delinquent real estate records in the alternative forms of a book or on a computer.
II. City May Utilize § 58.1-3971 for Removal of Parcels from Delinquent Land Records; Court Order Required
The clear language of § 58.1-3971(A) requires the following steps for removal of property improperly placed on the delinquent tax land books:
1. The attorney employed by the locality for handling the sale of delinquent tax lands is required to report periodically to the governing body of that jurisdiction all parcels of real estate he finds to be placed improperly on the delinquent land books.
2. The governing body must certify the attorney's information to the local treasurer, provided that body is satisfied of the correctness of the report or corrects it to conform to the facts.
3. The treasurer, upon order of the court within the jurisdiction which he serves, is then to mark his delinquent land records accordingly.2
It is necessarily implied in step 3 that an appropriate legal proceeding will be initiated upon which the court may issue an order directing the local treasurer to strike from the delinquent land records real estate erroneously placed thereon. This proceeding would be instituted in the name of the locality by the attorney employed for such purposes as provided in § 58.1-3966.
III. Alternative Procedures Associated with Preparation of Certified Lists of Uncollectible Taxes Authorize Correction of Land Book and Delinquent Real Estate Records
Assuming that the procedures under § 58.1-3971 might not be available to remove parcels of real estate from the delinquent land books, you ask whether there are alternative procedures to accomplish the same result. § 58.1-3921 requires the treasurer to identify real estate which was originally improperly placed on the land book. The listing identifying this property may then be certified by the treasurer to the commissioner of the revenue under § 58.1-3924 and the land book corrected accordingly. This latter statute, in turn, requires the treasurer to be given credit for the entire amount of taxes included in the list and authorizes him to destroy any tax tickets made out based upon such erroneous listings. This procedure does not, however, expressly grant authority to correct delinquent real estate records except the tax tickets associated with that delinquent real estate.
Under the recently amended provisions of § 58.1-3930, the treasurer is now the custodian of all delinquent real estate records.3 § 58.1-3930 requires the treasurer to record all payments received and, thereby, to release the lien. The credit which must be given to the treasurer for all real estate erroneously recorded in the land book is the equivalent of payment. Reading §§ 58.1-3921, 58.1-3924 and 58.1-3930 together, it is my opinion that the credit to the treasurer for improper entries in the land book is the equivalent of payment and that such credit must be recorded by the treasurer on the delinquent real estate records in his custody. This procedure effectively removes erroneously placed parcels of real estate from the delinquent land books.4
IV. Two Procedures Effectively Authorize Removal of Erroneously Recorded Parcels in Delinquent Land Book
Based on the above, it is my opinion that the City of Virginia Beach may utilize § 58.1-3971 to initiate the process to remove parcels of real estate erroneously placed on the delinquent land records by certifying the report of the attorney employed to handle the sale of delinquent tax lands to the local treasurer. Thereafter, the treasurer, upon order of the court, must strike such lands from the delinquent land records.
Alternatively, the procedures associated with preparation of lists of uncollectible taxes authorized by §§ 58.1-3921 and 58.1-3924, read in conjunction with the procedure for recording payments of delinquent taxes under § 58.1-3930, enable the commissioner of the revenue to correct his land book and the treasurer to correct his delinquent real estate records whether they are recorded in books, visible card index files or computers.
1 See also 1984-1985 Att'y Gen. Ann. Rep. 307 (clerk of the circuit court should transfer the delinquent real estate tax liens to the local treasurer's office as of July 1, 1985, so that thereafter all such records can be kept in one place).
2 As a matter of policy, the treasurer should send a copy of the court's order to the commissioner of the revenue and clerk in his locality so that those officials may correct their land records. See § 58.1-3313 and 1985-1986 Att'y Gen. Ann. Rep. 298 concerning the authority of the commissioner of the revenue to change the land book to indicate that a parcel on his books does not exist, and § 17-45 and 1983-1984 Att'y Gen. Ann. Rep. 39 concerning the authority of a clerk, upon an order of the court, to expunge or remove instruments recorded in his office.
3 While the treasurer is now given the option of maintaining delinquent real estate tax records by book, computer or visible card index file, your letter indicates that you have in your custody the delinquent land books originally held by the clerk of the circuit court for the years 1967 through 1982.
4 Since § 58.1-3921 refers only to the land book for the most recent year for which real estate taxes have been assessed, this conclusion assumes that the lands at issue have not otherwise been removed from that book. See, e.g., § 58.1-3313 (mandates that commissioners of the revenue correct mistakes in their land books).
Attorney General's Opinion