Agriculture and Industries Chapter 80 10 17 ALABAMA DEPARTMENT OF AGRICULTURE AND INDUSTRIES PLANT INDUSTRY ADMINISTRATIVE CODE CHAPTER 80 10 17 RULES CONCERNING THE COLLECTION OF ASSESSMENTS AND PENALTIES UNDER CODE OF ALA. 1975, 2 19 120, ET SEQ., RELATING TO THE ERADICATION OF BOLL WEEVILS IN COTTON TABLE OF CONTENTS 80 10 17.01 Purpose 80 10 17.02 Boll Weevil Eradication Assessment Liens; Bonds 80 10 17.03 Lien; Effective Period 80 10 17.04 Collection After Assessment 80 10 17.05 Lien For Assessment Under Code Of Ala. 1975, 2 19 120 Et Seq. Validity And Priority Against Certain Persons 80 10 17.06 Authority Of Commissioner Seizure And Sale Of Property 80 10 17.07 Surrender Of Property Subject To Levy; "Person" Defined 80 10 17.08 Production Of Books Or Records 80 10 17.09 Sale Of Seized Property 80 10 17.10 Sale Of Perishable Goods And Cotton 80 10 17.11 Redemption Of Property 80 10 17.12 Certificate Of Sale; Deed Of Real Property 80 10 17.13 Legal Effect Of Certificate Of Sale Of Personal Property And Deed 80 10 17.14 Records Of Sales To Be Kept 80 10 17.15 Expense Of Levy And Sale 80 10 17.16 Application Of Proceeds Of Levy 80 10 17.17 Authority To Release Levy And Return Property 80 10 17.18 Delegate Authorized 80 10 17.19 Lien Compromise 80 10 17.01 Purpose. The purpose of this Chapter as set out in Code of Ala. 1975, 2 19 135, is for the Commissioner of Agriculture and Industries to adopt the following regulations approved by the Alabama Boll Weevil Eradication Foundation, Inc., to further the collection of assessments and penalties Supp. 3/31/04 10 17 1
Chapter 80 10 17 Agriculture and Industries levied against cotton growers for the purpose of the eradication of boll weevils in cotton within the State of Alabama. 80 10 17.02 Boll Weevil Eradication Assessments And Penalties; Procedures For Contesting; Liens; Bonds. (1) If the Department determines that an assessment or penalty pursuant to Code of Ala. 1975, 2 19 120, et seq., should be levied against a cotton grower, the Commissioner will so inform the cotton grower of the amount due and request payment of same by issuance of a formal Notice and Demand. This notice will require payment of the assessment or penalty within 30 days. If the cotton grower does not agree with the Department's position, the cotton grower must file in the Department a written challenge within 15 days from the date of the formal Notice and Demand. If the Department conducts a contested case hearing in the matter, a final assessment or final assessment of penalty will be entered in accordance with the decision and order of the Department. If the cotton grower does not appeal to the Department within the designated time permitted, a final assessment or final assessment of penalty will be entered by the Department. Appeals from final assessments or final assessments of penalty by the Department may be made to the appropriate Circuit Court, in accordance with procedures set forth in the Administrative Procedures Act, Code of Ala. 1975, 41 22 1, et seq. (2) If any person liable to pay any final assessment or final assessment of penalty shall neglect or refuse to pay the same within 30 days from the date of entry of such final assessment or final assessment of penalty, the amount (including any interest or additional penalty, together with any costs that may accrue in additional thereto) shall be a lien in favor of the Commissioner upon all property and rights to property, whether real or personal, tangible or intangible, including but not limited to cotton crops before or after harvesting, belonging to such person. The Department shall give notice of the lien to the cotton grower and to all cotton gins and mills where the grower may gin or sell cotton, and to the Probate Court of the county in which the land subject to the assessment Supp. 3/31/04 10 17 2
Agriculture and Industries Chapter 80 10 17 shall lie and to all cotton gins and mills operating in the State of Alabama and in bordering states where cotton crops subject to the assessment are ginned or sold. (3) Notwithstanding the foregoing, if within 30 days after the date of the notice of lien, the cotton grower may contest the lien in the appropriate Circuit Court upon filing with the Department a bond or bond equivalent permitted by law, in double the amount of the lien filed, with surety or sureties to be either a surety company authorized to do business in Alabama or such individual property owners, not less than three in number, as are recommended by the Judge of Probate in the county in which notice of lien is recorded, conditioned to pay all such assessment or penalty, together with interest, any additional penalty and any costs which may have been incurred relative thereto as may be also assessed against the cotton grower, principal in said bond. Upon the filing of such bond or its equivalent, the Commissioner or his delegate shall withdraw and release said lien filed under the provisions of this regulation. However, upon a determination by the court that the said person owes all or any part of said assessment, judgment therefor shall be entered against said person and the surety or sureties on such bond; and, if not paid within 30 days from the date of the said judgment, then execution shall issue therefor against said principal and the surety or sureties on such bond. If (1) the bond hereinabove provided for is not given by the cotton grower and approved by the Commissioner, and a judgment is entered against said cotton grower, and said cotton grower duly and legally appeals therefrom within the time and in the manner provided for under these regulations, and the clerk or register of the court to which the appeal has been taken duly and legally approves the bond required for an appeal, or if (2) the said cotton grower against whom the Department entered the said assessment shall pay the said assessment within 30 days from the date thereof, then in such event, the Commissioner shall cancel or release said lien from record. 80 10 17.03 Lien; Effective Period. Unless another date is specifically fixed by law, the lien imposed by Section 2 of these regulations shall arise at the time the payment of the Supp. 3/31/04 10 17 3
Chapter 80 10 17 Agriculture and Industries assessment was due and shall continue until the liability for the amount so assessed is satisfied or becomes unenforceable by reason of lapse of time. 80 10 17.04 Collection After Assessment. Where the assessment imposed by Code of Ala. 1975, 2 19 120, et seq., has been made, such assessment may be collected by levy or by a proceeding in court. 80 10 17.05 Lien For Assessment Under Code Of Ala. 1975, 2 19 120 Et Seq. Validity And Priority Against Certain Persons. (1) Purchasers, holders of security interests, mechanic's lienors, and judgment lien creditors. The lien imposed by Section 2 of these regulations shall not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (6) has been filed by the Commissioner or his delegate, and shall not be perfected as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until the date such notice is filed. (2) Protection for certain interest even though notice filed. Even though notice of a lien imposed by Section 2 of these regulations has been filed, such lien shall not be valid: (a) SECURITIES. With respect to a security (as defined in subsection (5)(d)): Supp. 3/31/04 10 17 4
Agriculture and Industries Chapter 80 10 17 1. As against a purchaser of such security who at the time of purchase did not have actual notice or knowledge of the existence of such lien; and 2. As against a holder of a security interest in such security who, at the time such interest came into existence, did not have actual notice or knowledge of the existence of such lien. (b) MOTOR VEHICLES. With respect to a motor vehicle (as defined in subsection (5)(c)), as against a purchaser of such motor vehicle, if: 1. At the time of the purchase such purchaser did not have actual notice or knowledge of the existence of such lien; and 2. Before the purchaser obtains such notice or knowledge, he has acquired possession of such motor vehicle and has not thereafter relinquished possession of such motor vehicle to the seller or his agent. (c) PERSONAL PROPERTY PURCHASED AT RETAIL. With respect to tangible personal property purchased at retail, as against a purchaser in the ordinary course of the seller's trade or business, unless at the time of such purchase such purchaser intends such purchase to (or knows such purchase will) hinder, evade, or defeat the collection of any assessment under this title. The purchase of cotton crops is not tangible personal property purchased at retail. (d) PERSONAL PROPERTY PURCHASED IN CASUAL SALE. With respect to household goods, personal effects, or other tangible personal property (excluding cotton crops) purchased (not for resale) in a casual sale for less than $250, as against the purchaser, but only if such purchaser does not have actual notice or knowledge (A) of the existence of such lien, or (B) that this sale is one of a series of sales. (e) PERSONAL PROPERTY SUBJECT TO POSSESSORY LIEN. With respect to tangible personal property subject to a lien securing the reasonable price of the repair or improvement of such property, as against a holder of such a lien, if such holder is, and has been, continuously in possession of such property from the time such lien arose. Supp. 3/31/04 10 17 5
Chapter 80 10 17 Agriculture and Industries (f) REAL PROPERTY TAX. With respect to real property, as against a holder of a lien upon such property, if such lien is entitled to priority over security interests in such property which are prior in time, and such lien secures payment of ad valorem tax. (g) REAL PROPERTY SUBJECT TO A MECHANIC'S LIEN FOR CERTAIN REPAIRS AND IMPROVEMENTS. With respect to real property subject to a lien for repair or improvement as against a mechanic's lienor but not to exceed $5,000 (h) CERTAIN INSURANCE CONTRACTS. With respect to a life insurance, endowment, or annuity contract, as against the organization which is the insurer under such contract, at any time: 1. Before such organization had actual notice or knowledge of the existence of such lien; or 2. After such organization had such notice or knowledge, with respect to advances required to be made automatically to maintain such contract in force under an agreement entered into before such organization had such notice or knowledge. (3) Priority of interest and expenses. If the lien imposed by Section 2 of these regulations is not valid as against a lien or security interest, the priority of such lien or security interest shall extend to: (a) Any interest or carrying charges upon the obligation secured; (b) The reasonable charges and expenses of an indenture trustee or agent holding the security interest for the benefit of the holder of the security interest; (c) The reasonable expenses, including reasonable compensation for attorneys, actually incurred in collecting or enforcing the obligation secured; (d) The reasonable costs of insuring, preserving, or repairing the property to which the lien or security interest relates; (e) The reasonable costs of insuring payment of the obligation secured; and Supp. 3/31/04 10 17 6
Agriculture and Industries Chapter 80 10 17 (f) Amounts paid to satisfy any lien on the property to which the lien or security interest relates, but only if the lien so satisfied is entitled to priority over the lien imposed by Section 4 of these regulations, to the extent that any such item has the same priority as the lien or security interest to which it relates. (4) Place for filing; form. (a) PLACE FOR FILING. The notice referred to in subsection (1) shall be filed: (b) REAL PROPERTY. In the case of real property, in the probate office of the county in which the property subject to the lien is situated; and (c) PERSONAL PROPERTY. In the case of personal property, including, but not limited to cotton crops, whether tangible or intangible, in the office (i) in which a financing statement would be filed to perfect a security interest with respect to such property pursuant to the Alabama Uniform Commercial Code, or (ii) of the Secretary of State, if a financing statement would not be required to be filed to perfect a security interest with respect to such property; provided, however, if the property is a motor vehicle (as defined under subdivision (5)(c) of this section), the assessment lien shall be perfected in the same manner as a security interest is required to be perfected with respect to such motor vehicle. (d) FORM. The form and content of the notice referred to in subsection (a) shall be prescribed by the Commissioner or his delegate. Such notice shall be valid notwithstanding any other provision of law regarding the form or content of a notice of lien. (5) Definitions. For purposes of this section, the following terms shall have the following meanings, respectively, unless the context clearly indicates otherwise: (a) SECURITY INTEREST. Any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time, the property is in existence and the interest has become protected against a subsequent judgment lien arising out Supp. 3/31/04 10 17 7
Chapter 80 10 17 Agriculture and Industries of an unsecured obligation, and (B) to the extent that, at such time, the holder has parted with money or money's worth. (b) MECHANIC'S LIENOR. Any person who has a lien on real property (or on the proceeds of a contract relating to real property) for services, labor, or materials furnished in connection with the construction or improvement of such property. For purposes of the preceding sentence, a person has a lien on the earliest date such lien becomes valid against subsequent purchasers without actual notice, but not before he begins to furnish the services, labor, or materials. (c) MOTOR VEHICLE. A self propelled vehicle which is registered for highway use under the laws of any state or foreign country. (d) SECURITY. Any bond, debenture, note, or certificate or other evidence of indebtedness, issued by a corporation or a government or political subdivision thereof, with interest coupons or in registered form, share of stock, voting trust certificate, or any certificate of interest or participation in, certificate of deposit or receipt for, temporary or interim certificate for, or warrant or right to subscribe to or purchase, any of the foregoing; negotiable instrument; or money. (e) ASSESSMENT LIEN FILING. The filing of notice (referred to in subsection (1)) of the lien imposed by Section 2 of these regulations. (f) PURCHASER. A person who, for adequate and full consideration in money or money's worth, acquires an interest (other than a lien or security interest) in property which is valid against subsequent purchasers without actual notice. In applying the preceding sentence for purposes of subsection (1) of this section: 1. A lease of property; 2. A written executory contract to purchase or lease property; 3. An option to purchase or lease property or any interest therein; or Supp. 3/31/04 10 17 8
Agriculture and Industries Chapter 80 10 17 4. An option to renew or extend a lease of property, which is not a lien or security interest shall be treated as an interest in property. (6) Special rules. (a) ACTUAL NOTICE OR KNOWLEDGE. For purposes of this article, an organization shall be deemed for purposes of a particular transaction to have actual notice or knowledge of any fact from the time such fact is brought to the attention of the individual conducting such transaction, and in any event for the time such fact would have been brought to such individual's attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routine. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his regular duties or unless he has reason to know of the transaction and that the transaction would be materially affected by the information. (b) SUBROGATION. Where one person is subrogated to the rights of another with respect to a lien or interest, such person shall be subrogated to such rights for purposes of any lien imposed by Section 2 of these regulations. (c) DISCLOSURE OF AMOUNT OF OUTSTANDING LIEN. If a notice of lien has been filed pursuant to subsection (4), the commissioner or his delegate is authorized to provide by regulations the extent to which, and the conditions under which, information as to the amount of the outstanding obligation secured by the lien may be disclosed. 80 10 17.06 Authority Of Commissioner Seizure And Sale Of Property. (1) Authority of Commissioner or delegate. If any person liable to pay any boll weevil eradication assessment neglects or refuses to pay the same or fails to appeal such Supp. 3/31/04 10 17 9
Chapter 80 10 17 Agriculture and Industries assessment within 30 days, it shall be lawful for the Commissioner to collect such assessment (and such further sum as shall be sufficient to cover the expenses of the levy) as herein provided or as otherwise provided by law. The Commissioner may levy upon all property and rights for property, including, but not limited to cotton crops before or after harvesting, belonging to such person or on which there is a lien as provided in this chapter for the payment of such assessment. If the Commissioner or his delegate makes a finding that the collection of such assessment is in jeopardy, notice and demand for immediate payment of such assessment may be made and, upon failure or refusal to pay such assessment, collection thereof by levy shall be lawful without regard to the 30 day period provided in this chapter. (2) Seizure and sale of property. The term "levy" as used in these regulations includes the power of distraint and seizure by any lawful means. Except as otherwise provided in subsection (5) of this section, a levy shall extend only to property possessed and obligations existing at the time thereof. In any case in which the Commissioner may levy upon property or rights to property, he may seize and sell such property or rights to property (whether real or personal, tangible or intangible, including but not limited to cotton crops before or after harvesting), as prescribed by law. The Department may become the purchaser of any property seized by bidding up to the amount of the assessment and accrued interest plus any costs associated with such sale. The amount of any successful bid by the Department, less costs, shall be credited to the amount owing on the unpaid final assessments. If the Department shall become the purchaser of any property at such sale, then the Department may resell the property by either public auction or public sale under sealed bids. (3) Successive seizures. Whenever any property or right to property upon which levy has been made by virtue of subsection (1) is not sufficient to satisfy the claim of the Commissioner for which levy is made, the Commissioner or his delegate may, thereafter, and as often as may be necessary, proceed to levy in like manner upon any other property liable to levy of the person against whom such claim exists, until the amount due from him, together with all expenses, is fully paid. (4) Requirement of notice before levy. (a) IN GENERAL. Levy may be made under subsection (1) upon the salary or wages or other property of any person Supp. 3/31/04 10 17 10
Agriculture and Industries Chapter 80 10 17 with respect to any unpaid assessment only after the Commissioner has notified such person in writing of his intention to make such levy by means of a formal Notice and Demand as set forth in Section 2 of these Regulations. (b) THIRTY DAY REQUIREMENT. The notice required under subdivision (a) shall be served in any one of the following methods: 1. Given in person; 2. Left at the dwelling or usual place of business of such person; or 3. Sent by certified or registered mail to such person's last known address; no less than 30 days before the day of the levy. (c) JEOPARDY. Subdivision (a) shall not apply to a levy if the Commissioner has made a finding under the last sentence of subsection (1) that the collection of assessment is in jeopardy. (5) Continuing levy on salary and wages. (a) EFFECT OF LEVY. The effect of a levy on salary or wages payable to or received by a cotton grower shall be continuous from the date such levy is first made until the liability out of which such levy arose is satisfied; provided, however, that no such levy made shall be more than 25 percent of the total wages or salary due the cotton grower. (b) RELEASE AND NOTICE OF RELEASE. With respect to a levy described in subdivision (a), the Commissioner shall within 10 days release the levy when the liability out of which such levy arose is satisfied and shall promptly notify the person upon whom such levy was made that such levy has been released. (6) Special rule for levies on banks. Any financial institution (as defined in Code of Ala. 1975, 40 16 1) shall be allowed 21 days following the date of service to comply with a levy served by or on behalf of the Department. Supp. 3/31/04 10 17 11
Chapter 80 10 17 Agriculture and Industries 80 10 17.07 Surrender Of Property Subject To Levy; "Person" Defined. (1) Requirement. Except as otherwise provided in subsection (2), 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 shall, upon demand of the Commissioner or his delegate, surrender such property or rights (or discharge such obligation) to the Commissioner or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process. (2) Enforcement of levy. (a) EXTENT OF PERSONAL LIABILITY. Any person who fails or refuses to surrender any property or rights to property, subject to levy, upon demand by the Commissioner, shall be liable in his own person and estate to the Commissioner in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the assessment for the collection of which such levy has been made, together with costs and interest on such sum at an annual rate established by law from the date of such levy (or, in the case of a levy described in subsection (5) of Section 6 of these regulations, from the date such person would otherwise have been obligated to pay over such amounts to the cotton grower). Any amount (other than costs and the 10 percent penalty provided in subdivision (6) below) recovered under this subdivision shall be credited against the assessment amount for the collection of which such levy was made. (b) PENALTY FOR VIOLATION. In addition to the personal liability imposed by subdivision (a), if any person required to surrender property or rights to property fails or refuses to surrender such property or rights to property without reasonable cause, such person shall be liable for a penalty equal to 10 percent of the amount recoverable from the property under his control. No part of such penalty shall be credited against the assessment amount for the collection of which such levy was made. Supp. 3/31/04 10 17 12
Agriculture and Industries Chapter 80 10 17 (3) 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 or his delegate, surrenders such property or rights to property (or discharges such obligation) to the Commissioner or his delegate, or who pays a liability under subdivision (2)(a), shall be discharged from any obligation or liability to the delinquent cotton grower with respect to such property or rights to property arising from such surrender or payment. (4) "Person" defined. The term "person" as used in subsection (1) includes an officer of a corporation or a member of a partnership, who as such officer or member is under a duty to surrender the property or rights to property, or to discharge the obligation. 80 10 17.08 Production Of Books Or Records. If a levy has been made on any property, or right to property, any person having custody or control of any books or records containing evidence or statements relating to the property or rights to property subject to levy, shall, upon demand of the Commissioner or his delegate, exhibit such books or records to the Commissioner or his delegate. 80 10 17.09 Sale Of Seized Property. (1) Notice of seizure. As soon as practicable after seizure of property, notice in writing shall be given by the Commissioner or his delegate to the owner of the property (or, in the case of personal property, the possessor thereof), or shall be left at his usual place of abode or business. If the owner cannot be readily located, or has no dwelling or place Supp. 3/31/04 10 17 13
Chapter 80 10 17 Agriculture and Industries of business within the State, the notice may be mailed to his last known address. Such notice shall specify the sum demanded and shall contain, in the case of real property, a description with reasonable certainty of the property seized. (2) Notice of sale. The Commissioner or his delegate shall, as soon as practicable after the seizure of the property give notice to the owner, in the manner prescribed in subsection (1), and shall cause a notification to be published in some newspaper published or generally circulated within the county wherein such seizure is made, or if there be no newspaper published or generally circulated in such county, shall post such notice at the post office nearest the place where the seizure is made, and in not less than two other public places. Such notice shall specify the property to be sold, including both a legal description and a readily understandable layman's description, and the time, place, manner, and conditions of the sale thereof. (3) Sale of indivisible property. If any property liable to levy is not divisible, so as to enable the Commissioner or his delegate by sale of a part thereof to raise the whole amount of the assessment and expenses, the whole of such property shall be sold. Such indivisible property shall include only property in which the cotton grower has at least 50 percent interest. (4) Time and place of sale. All sales shall be held between the hours of 9:00 A.M. and 5:00 P.M. In sale of personal property, the notice and advertisement of sale must be published at least 14 days prior to sale, but only one publication shall be necessary. In sales of real property, the publication in the newspaper must be once a week for three successive weeks prior to the sale. (5) Manner and conditions of sale. (a) MINIMUM PRICE. Before the sale the Commissioner or his delegate may determine a minimum price for which the property shall be sold, and if such minimum price is determined, and if no person offers for such property at the sale the amount of the minimum price, the property shall be declared to be purchased at such price for the Commissioner; otherwise the property shall be declared to be sold to the highest bidder. Supp. 3/31/04 10 17 14
Agriculture and Industries Chapter 80 10 17 (b) ADDITIONAL RULES APPLICABLE TO SALE. The Commissioner or his delegate shall by regulations prescribe the manner and other conditions of the sale of property seized by levy. If one or more alternative methods or conditions are permitted by regulations, the commissioner or his delegate shall select the alternatives applicable to the sale. Such regulations shall provide: 1. That the sale shall not be conducted in any manner other than: (i) (ii) By public auction; or By public sale under sealed bids. (iii) In the case of the seizure of several items of property, whether such items shall be offered separately, in groups, or in the aggregate; and whether such property shall be offered both separately (or in groups) and in the aggregate, and sold under whichever method produces the highest aggregate amount. (iv) Whether the announcement of the minimum price determined by the commissioner or his delegate may be delayed until the receipt of the highest bid. (v) Whether payment in full shall be required at the time of acceptance of a bid, or whether a part of such payment may be deferred for such period (not to exceed one month) as may be determined by the Commissioner or his delegate to be appropriate. (vi) The extent to which methods (including advertising) in addition to those prescribed in subsection (2) may be used in giving notice of the sale. (vii) Under what circumstances the Commissioner or his delegate may adjourn the sale from time to time (but such adjournments shall not be for a period to exceed in all one month). (c) PAYMENT OF AMOUNT BID. If payment in full is required at the time of acceptance of a bid and is not then and there paid, the Commissioner or his delegate shall forthwith proceed to again sell the property in the manner provided in this subsection. If the conditions of the sale permit part of the payment to be deferred, and if such part is not paid within Supp. 3/31/04 10 17 15
Chapter 80 10 17 Agriculture and Industries the prescribed period, suit may be instituted against the purchaser for the purchase price or such part thereof as has not been paid, together with interest at the rate applicable to liabilities due the Department from the date of the sale; or, in the discretion of the Commissioner or his delegate, the sale may be declared to be null and void for failure to make full payment of the purchase price and the property may again be advertised and sold as provided in subsections (2) and (3) of this section. In the event of such readvertisement and sale any new purchaser shall receive such property or rights to property free and clear of any claim or right of the former defaulting purchaser, of any nature whatsoever, and the amount paid upon the bid price by such defaulting purchaser shall be forfeited. 80 10 17.10 Sale Of Perishable Goods And Cotton. (1) If the Commissioner or his delegate determines that cotton or any other property seized is liable to perish or become greatly reduced in price or value by keeping, or that such property cannot be kept without great expense, he shall appraise the value of such property and: (a) Return to owner. If the owner of the property can be readily found, the Commissioner or his delegate shall give him notice of such determination of the appraised value of the property. The property shall be returned to the owner if, within such time as may be specified in the notice, the owner: 1. Pays to the commissioner or his delegate an amount equal to the appraised value; or 2. Gives bond in such form, with such sureties, and in such amount as the commissioner or his delegate shall prescribe, to pay the appraised amount at such time as the commissioner or his delegate determines to be appropriate in the circumstances. (b) Immediate sale. If the owner does not pay such amount or furnish such bond in accordance with this section, the commissioner or his delegate may as soon as practicable make Supp. 3/31/04 10 17 16
Agriculture and Industries Chapter 80 10 17 public sale of the property in accordance with such regulations or in such manner as may be prescribed by the commissioner or his delegate. 80 10 17.11 Redemption Of Property. (1) Before sale. Any person whose property has been levied upon hereunder shall have the right to pay the amount due, together with the expenses of the proceeding, if any, to the commissioner or his delegate at any time prior to the sale thereof, and upon such payment the commissioner or his delegate shall restore such property to him, and all further proceedings in connection with the levy on such property shall cease from the time of such payment. (2) Redemption of real estate after sale. (a) PERIOD. The owners of any real property sold as provided in Section 9 of these regulations, their heirs, executors, or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the property sold, or any particular tract of such property, at any time within one year after the sale thereof. Real property purchased by the Commissioner at said sale may be redeemed from the Commissioner at any time within one year after the sale thereof. (b) PRICE. Such property or tract of property shall be permitted to be redeemed upon payment to the purchaser, or in case he cannot be found in the county in which the property to be redeemed is situated, then to the Commissioner or his delegate, for the use of the purchaser, his heirs, or assigns, the amount paid by such purchaser and interest thereon at the current rate of interest per annum as last published and charged on delinquent taxes by the Internal Revenue Service. Where the Commissioner was purchaser, the assessment amount must be paid in full in addition to the costs, penalties and interest in order to redeem. Supp. 3/31/04 10 17 17
Chapter 80 10 17 Agriculture and Industries (3) Record. When any lands sold are redeemed as provided in this section, the Commissioner or his delegate shall cause entry of the fact to be made upon the record mentioned in Section 14 of these regulations, and such entry shall be evidence of such redemption. (4) Redemption of personal property. There may be no redemption of personal property. 80 10 17.12 Certificate Of Sale; Deed Of Real Property. (1) Certificate of sale. In the case of personal property sold as provided in Section 9 of these regulations, the Commissioner or his delegate shall give to the purchaser a certificate of sale upon payment in full of the purchase price. (2) Deed to real property. In the case of any real property sold as provided in Section 9 of these regulations and not redeemed in the manner and within the time provided in Section 11 of these regulations, the Commissioner or his delegate shall execute to the purchaser of such real property at such sale, upon his surrender of the certificate of sale, a deed of the real property so purchased by him, reciting the facts set forth in the certificate. (3) Real property purchased by State of Alabama. If real property is declared purchased by the State of Alabama at a sale pursuant to Section 9 of these regulations, the Commissioner or his delegate shall at the proper time execute a deed therefor, and without delay cause such deed to be duly recorded in the probate office of the county in which the property is located. Supp. 3/31/04 10 17 18
Agriculture and Industries Chapter 80 10 17 80 10 17.13 Legal Effect Of Certificate Of Sale Of Personal Property And Deed Of Real Property. The Legal Effect of a Certificate of Sale of personal property and a deed of real property under these regulations shall have the same effect as a tax lien under Code of Ala. 1975, 40 29 30. 80 10 17.14 Records Of Sales To Be Kept. The Commissioner or his delegate shall keep a record of all sales of real property sold under Section 9 of these regulations and of redemptions of such property. The record shall set forth the assessment for which the sale was made, the dates of seizure and sale, the amount of the expenses, the name of purchaser and the date of the deed. A deed to the Commissioner by virtue of its purchase at the sale shall be promptly recorded in the probate office of the county or counties where the property is located. 80 10 17.15 Expense Of Levy And Sale. The Commissioner or his delegate shall determine the expenses to be allowed in all cases of levy and sale, which expenses shall be actual expenses directly related to the sale. The fee for a professional auctioneer that may be employed at the discretion of the commissioner or his delegate shall be considered an expense of the levy and sale. The fee for an attorney that may be employed at the discretion of the commissioner or his delegate also shall be considered an expense of the levy and sale. The overhead cost directly allocable to work relating to the levy and sale performed by an attorney regularly employed with the Commissioner shall be considered an expense of the levy and sale. Supp. 3/31/04 10 17 19
Chapter 80 10 17 Agriculture and Industries 80 10 17.16 Application Of Proceeds Of Levy. (1) Collection of liability. Any money realized by proceedings under this article (whether by seizure, by surrender under Section 7 of these regulations, except pursuant to subsection (2)(b) thereof, or by sale of seized property) or by sale of property redeemed by the Commissioner (if the interest of the Commissioner in such property was a lien arising under the provisions of Code of Ala. 1975, 2 19 120, et seq.) shall be applied as follows: (a) EXPENSE OF LEVY AND SALE. First, against the expenses of the proceedings; (b) SPECIFIC ASSESSMENT AMOUNT ON SEIZED PROPERTY. If the property seized and sold is subject to an assessment imposed under Code of Ala. 1975, 2 19 120 et seq., which has not been paid, the amount remaining after applying subdivision (a) shall then be applied against such assessment amount, including any penalty and interest; (c) LIABILITY OF DELINQUENT COTTON GROWER. The amount, if any, remaining after applying subdivisions (a) and (b) shall then be applied against the liability in respect of which the levy was made or the sale was conducted. (2) Surplus proceeds. Any surplus proceeds remaining after the application of subsection (1) shall be refunded by the Commissioner or his delegate to the person or persons legally entitled thereto. 80 10 17.17 Authority To Release Levy And Return Property. (1) Release of levy. It shall be lawful for the Commissioner or his delegate to release the levy, and any liens, Supp. 3/31/04 10 17 20
Agriculture and Industries Chapter 80 10 17 upon all or part of the property or rights to property levied upon, where the Commissioner or his delegate, within their discretion, determines that such action will facilitate the collection of the liability or for other good reason that the levy should be released, but such release shall not operate to prevent any subsequent levy. (2) Return of property. If the Commissioner determines that property has been wrongfully levied upon, it shall be lawful for the commissioner to return: (a) The specific property levied upon; (b) An amount of money equal to the amount of money levied upon; or (c) An amount of money equal to the fair market value of the property levied upon and the reasonable cost of a judicial determination of the existence of a wrongful levy. (d) Interest. Interest shall be allowed and paid at an annual rate established by law: 1. In a case described in subsection (2)(b), from the date the Commissioner receives the money to a date (to be determined by the Commissioner) preceding the date of return by not more than 30 days; or 2. In a case described in subsection (2)(c), from the date of the sale of the property to a date (to be determined by the Commissioner) preceding the date of return by not more than 30 days. 80 10 17.18 Delegate Authorized. The Commissioner may designate a delegate, to engage in collection activities consistent with these regulations on the Commissioner s behalf. If the delegate is not an employee of the Department of Agriculture and Industries, said delegate whether or not an independent contractor or specially designated Deputy Attorney General, shall be an attorney licensed to practice in the State Supp. 3/31/04 10 17 21
Chapter 80 10 17 Agriculture and Industries of Alabama. The delegate s collection fees and expenses shall be considered an expense of the levy and sale. 80 10 17.19 Lien Compromise. The Commissioner or his delegate may not agree to accept less than the assessment lien amount unless there exists a substantial risk that failing to accept a lesser amount would prevent collection of any amount pertaining to the lien. Provided, however, that the Commissioner or his delegate shall not compromise said lien without first receiving approval by the Board of Directors of the Alabama Boll Weevil Eradication Foundation. Supp. 3/31/04 10 17 22