2006 Minnesota Statutes

270C.67 LEVY AND DISTRAINT.
    Subdivision 1. Authority. If any tax payable to the commissioner or to the department is not
paid when due, such tax may be collected by the commissioner within five years after the date of
assessment of the tax, or if a lien has been filed, during the period the lien is enforceable, or if the
tax judgment has been filed, within the statutory period of enforcement of a valid tax judgment,
by a levy upon all property and rights to property, including any property in the possession of law
enforcement officials, of the person liable for the payment or collection of such tax or property on
which there is a lien provided in section 270C.63. For this purpose, "tax" includes any penalty,
interest, and costs, properly payable.
    Subd. 1a. Exempt property. A levy under this section is not enforceable against:
(1) a purchaser with respect to tangible personal property purchased at retail in the ordinary
course of the seller's trade or business, unless at the time of purchase the purchaser intends the
purchase to or knows the purchase will hinder, evade, or defeat the collection of a tax; or
(2) the personal property listed as exempt in sections 550.37, 550.38, and 550.39.
    Subd. 2. Writ of entry. The term "levy" includes the power of distraint and seizure by any
means; provided, no entry can be made upon the business premises or residence of a taxpayer
in order to seize property without first obtaining a writ of entry listing the property to be seized
and signed by a judge of the district court of the district in which the business premises or
residence is located.
    Subd. 3. Notice and demand; collection by levy. Before a levy is made, notice and demand
for payment of the amount due must be given to the person liable for the payment or collection
of the tax at least 30 days prior to the levy. The notice required under this subdivision must
be sent to the taxpayer's last known address and must include a brief statement that sets forth
in simple and nontechnical terms:
(1) the administrative appeals available to the taxpayer with respect to the levy and sale; and
(2) the alternatives available to the taxpayer that can prevent a levy, including installment
payment agreements under section 270C.52, subdivision 2.
    Subd. 4. Manner of execution and sale. In making the execution of the levy and in
collecting the taxes due, the commissioner shall have all of the powers provided in chapter 550
and in any other law for purposes of effecting an execution against property in this state. The sale
of property levied upon, and the time and manner of redemption therefrom, shall, to the extent not
provided in sections 270C.7101 to 270C.7109, be governed by chapter 550. The seal of the court,
subscribed by the court administrator, as provided in section 550.04, shall not be required. The
levy for collection of taxes may be made whether or not the commissioner has commenced a legal
action for collection of such taxes.
    Subd. 5. Stay of sale. (a) Where a jeopardy assessment or any other assessment has been
made by the commissioner, the property seized for collection of the tax shall not be sold until the
time has expired for filing an appeal of the assessment with the Tax Court pursuant to chapter
271. If an appeal has been filed, no sale shall be made unless the taxes remain unpaid for a
period of more than 30 days after final determination of the appeal by the Tax Court or by the
appropriate judicial forum.
(b) Notwithstanding paragraph (a), seized property may be sold if:
(1) the taxpayer consents in writing to the sale; or
(2) the commissioner determines that the property is perishable or may become greatly
reduced in price or value by keeping, or that such property cannot be kept without great expense.
(c) The Tax Court has jurisdiction to review a determination made under paragraph (b), clause
(2). Review is commenced by motion of the commissioner or the taxpayer. The order of the court
in response to the motion is reviewable in the same manner as any other decision of the Tax Court.
    Subd. 6. Probate proceedings. Where a levy has been made to collect taxes pursuant to this
section and the property seized is properly included in a formal proceeding commenced under
sections 524.3-401 to 524.3-505 and maintained under full supervision of the court, such property
shall not be sold until the probate proceedings are completed or until the court so orders.
    Subd. 7. Bond or security to release seizure. The property seized shall be returned by
the commissioner if the owner gives a surety bond equal to the appraised value of the owner's
interest in the property, as determined by the commissioner, or deposits with the commissioner
security in such form and amount as the commissioner deems necessary to insure payment of the
liability, but not more than twice the liability.
    Subd. 8. Injunction. Notwithstanding any other provision to the contrary, if a levy or sale
pursuant to this section would irreparably injure rights in property which the court determines to
be superior to rights of the state in such property, the district court may grant an injunction to
prohibit the enforcement of such levy or to prohibit such sale.
    Subd. 9. Optional remedy. Any action taken by the commissioner pursuant to this section
shall not constitute an election by the state to pursue a remedy to the exclusion of any other
remedy.
    Subd. 10. Equitable relief. After the commissioner has seized the property of any person,
that person may, upon giving 48 hours notice to the commissioner and to the court, bring a claim
for equitable relief before the district court for the release of the property to the taxpayer upon
such terms and conditions as the court may deem equitable.
    Subd. 11. Levy and sale by sheriff. If any tax payable to the commissioner or to the
department is not paid as provided in subdivision 3, the commissioner may, within the time
periods provided in subdivision 1 for collection of taxes, delegate the authority granted by
subdivision 1, by means of issuing a warrant to the sheriff of any county of the state commanding
the sheriff, as agent for the commissioner, to levy upon and sell the real and personal property of
the person liable for the payment or collection of the tax and to levy upon the rights to property of
that person within the county, or to levy upon and seize any property within the county on which
there is a lien provided in section 270C.63, and to return the warrant to the commissioner and
pay to the commissioner the money collected by virtue thereof by a time to be therein specified
not less than 60 days from the date of the warrant. The sheriff shall proceed thereunder to levy
upon and seize any property of the person and to levy upon the rights to property of the person
within the county (except the person's homestead or that property which is exempt from execution
pursuant to section 550.37), or to levy upon and seize any property within the county on which
there is a lien provided in section 270C.63. For purposes of the preceding sentence, "tax" includes
any penalty, interest, and costs, properly payable. The sheriff shall then sell so much of the
property levied upon as is required to satisfy the taxes, interest, and penalties, together with the
sheriff's costs; but the sales, and the time and manner of redemption therefrom, shall, to the extent
not provided in sections 270C.7101 to 270C.7109, be governed by chapter 550. The proceeds of
the sales, less the sheriff's costs, shall be turned over to the commissioner, who shall then apply
the proceeds as provided in section 270C.7108.
    Subd. 12. Priority of levy. Notwithstanding section 52.12, a levy by the commissioner
made pursuant to the provisions of this section upon a taxpayer's funds on deposit in a financial
institution located in this state, shall have priority over any unexercised right of setoff of the
financial institution to apply the levied funds toward the balance of an outstanding loan or
loans owed by the taxpayer to the financial institution. A claim by the financial institution that
it exercised its right to setoff prior to the levy by the commissioner must be substantiated by
evidence of the date of the setoff, and shall be verified by the sworn statement of a responsible
corporate officer of the financial institution. Furthermore, for purposes of determining the priority
of any levy made under this section, the levy shall be treated as if it were an execution made
pursuant to chapter 550.
    Subd. 13. Effect of honoring levy. Any person in possession of (or obligated with respect
to) property or rights to property subject to levy upon which a levy has been made who, upon
demand by the commissioner, surrenders the property or rights to property (or who pays a liability
under section 270C.70, subdivision 1) shall be discharged from any obligation or liability to the
person liable for the payment or collection of the delinquent tax with respect to the property
or rights to property so surrendered or paid.
    Subd. 14. Notice of levy. Notwithstanding any other provision of law to the contrary, the
notice of any levy authorized by this section may be served by mail or by delivery by an agent of
the department.
    Subd. 15. Uneconomical levy. No levy may be made on property if the amount of the
expenses that the commissioner estimates would be incurred by the department with respect to
the levy and sale of the property exceeds the fair market value of the property at the anticipated
time of levy.
    Subd. 16. Levy on appearance date of subpoena. No levy may be made on the property of
a person on the day on which the person, or an officer or employee of the person, is required to
appear in response to a subpoena issued by the commissioner to collect unpaid taxes, unless the
commissioner determines that the collection of the tax is in jeopardy.
History: 2005 c 151 art 1 s 73; 2006 c 259 art 8 s 5,6