Bill Text: OR SB324 | 2011 | Regular Session | Introduced
Bill Title: Relating to collection of debts; prescribing an effective date.
Spectrum: Unknown
Status: (Failed) 2011-06-30 - In committee upon adjournment. [SB324 Detail]
Download: Oregon-2011-SB324-Introduced.html
76th OREGON LEGISLATIVE ASSEMBLY--2011 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3128
Senate Bill 324
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Senate Interim Committee on
Finance and Revenue)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Authorizes collection agencies engaged by Department of Revenue
to collect delinquent taxes and to issue tax warrants, liens and
writs of attachment and garnishment. Applies to inheritance tax,
income and excise tax, timber tax, cigarette and tobacco tax, oil
and gas tax and miscellaneous taxes.
Provides that judgments for certain tax debts are not subject
to collection under Judicial Department collections and revenue
management program. Provides that judgments for specified tax
debts be collected by Department of Revenue Collections Unit.
Allows state agency to impose and collect fee of $__ for notice
of garnishment issued by agency.
Provides that Department of Revenue may transfer liability for
transit taxes or other payroll taxes to reorganized business
entity.
Allows state agency using debt collection assistance of
Department of Revenue to add maximum amount charged by Department
of Revenue for collection services to amount to be collected.
Authorizes Department of Revenue to establish collection fee to
be imposed on taxpayers that participate in installment payment
plans for personal income or corporate excise or income taxes.
Provides for refund of one-half of fee to taxpayers that complete
all payments on or before due dates for payments under plan.
Takes effect on 91st day following adjournment sine die.
A BILL FOR AN ACT
Relating to collection of debts; creating new provisions;
amending ORS 18.854, 18.855, 18.999, 118.230, 293.231, 305.330,
305.850, 314.430, 320.080, 321.570, 323.390, 323.610, 324.190
and 697.105; and prescribing an effective date.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 305.850 is amended to read:
305.850. (1) Notwithstanding any provision to the contrary in
ORS 9.320 and 305.610, the Director of the Department of Revenue
may engage the services of a collection agency to collect any
taxes, interest and penalties resulting from an assessment of
taxes or additional taxes imposed by ORS chapter 118, 310, 314,
316, 317, 318, 321 or 323 or ORS 320.005 to 320.150 and any other
tax laws administered by the Department of Revenue. The director
may engage the services of a collection agency by entering into
an agreement to pay reasonable charges on a contingent fee or
other basis.
(2) The director shall cause to be collected, in the same
manner as provided in subsection (1) of this section,
assessments, taxes and penalties due under ORS chapter 656. All
amounts collected pursuant to this subsection shall be credited
as provided in ORS 293.250.
(3) The director may assign to the collection agency, for
collection purposes only, any of the taxes, penalties, interest
and moneys due the state.
(4) The collection agency may bring such action or take such
proceedings, { + as may be necessary, + }including but not
limited to { + :
(a) + } Attachment and garnishment proceedings { - , as may be
necessary. - } { + ; and
(b) Issuing a warrant or lien as provided in ORS 314.430,
320.080, 321.570, 323.390, 323.610 or 324.190. + }
SECTION 2. ORS 118.230 is amended to read:
118.230. (1) Every tax imposed by ORS 118.005 to 118.840 is a
lien upon the property embraced in any inheritance, devise,
bequest, legacy or gift until paid, and the person to whom such
property is transferred, and the personal representatives and
trustees of every estate embracing such property are personally
liable for such tax until its payment, to the extent of the value
of such property.
(2) Taxes imposed under ORS 118.005 to 118.840 may be assessed
and collected by the Department of Revenue in the same manner as
income taxes are assessed and collected under ORS chapter 314.
The department { + or a collection agency engaged by the
department under ORS 305.850 + } may issue a warrant as provided
in ORS 314.430 and record the warrant in the County Clerk Lien
Record maintained under ORS 205.130. A warrant issued under this
section has the same force and effect as a warrant issued under
ORS 314.430.
SECTION 3. ORS 314.430 is amended to read:
314.430. (1) If any tax imposed under ORS chapter 118, 316, 317
or 318 or any portion of the tax is not paid within 30 days after
the date that the written notice and demand for payment required
under ORS 305.895 is mailed (or within five days after the tax
becomes due, in the case of the termination of the tax year by
the Department of Revenue under the provisions of ORS 314.440)
and no provision is made to secure the payment thereof by bond,
deposit or otherwise, pursuant to regulations promulgated by the
department, the department { + or a collection agency engaged by
the department under ORS 305.850 + } may issue a warrant directed
to the sheriff of any county of the state commanding the sheriff
to levy upon and sell the real and personal property of the
taxpayer found within that county, for the payment of the amount
of the tax, with the added penalties, interest, collection charge
and the sheriff's cost of executing the warrant, and to return
such warrant to the department { + or collection agency + } and
pay to it the money collected by virtue thereof by a time to be
therein specified, not less than 60 days from the date of the
warrant. A copy of the warrant shall be mailed or delivered to
the taxpayer by the department { + or collection agency + } at
the taxpayer's last-known address.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof,
and thereupon the clerk shall enter in the County Clerk Lien
Record the name of the taxpayer mentioned in the warrant, and the
amount of the tax or portion thereof and penalties for which the
warrant is issued and the date when such copy is recorded.
Thereupon the amount of the warrant so recorded shall become a
lien upon the title to and interest in property of the taxpayer
against whom it is issued in the same manner as a judgment duly
recorded. The sheriff thereupon shall proceed upon the same in
all respects, with like effect and in the same manner prescribed
by law in respect to executions issued against property upon
judgment of a court of record, and shall be entitled to the same
fees for services in executing the warrant, to be added to and
collected as a part of the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
authorized to collect taxes, and in the execution thereof the
agent shall have all the powers conferred by law upon sheriffs,
but is entitled to no fee or compensation in excess of actual
expenses paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the taxpayer as if the people of the state had
recovered judgment against the taxpayer for the amount of the
tax, and shall balance the assessment record of the taxpayer by
transferring the unpaid deficiency to the taxpayer's delinquent
record.
SECTION 4. ORS 320.080 is amended to read:
320.080. (1) If any tax or penalty imposed by ORS 320.005 to
320.150 is not paid as required by ORS 320.005 to 320.150 within
30 days after the date that the written notice and demand for
payment required under ORS 305.895 is mailed, the Department of
Revenue { + or a collection agency engaged by the department
under ORS 305.850 + } shall issue a warrant directed to the
sheriff of any county of the state commanding the sheriff to levy
upon and sell the real and personal property of the person or
persons named in the warrant and liable for the tax found within
the county, for the payment of the amount thereof with the added
penalty and the cost of executing the warrant, and to return the
warrant to the department { + or collection agency + } and pay
to it the money collected by virtue thereof by a time to be
therein specified not more than 30 days from the date of the
warrant. A copy of the warrant shall be mailed or delivered to
the taxpayer by the department { + or collection agency + } at
the taxpayer's last-known address.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof.
Thereupon the clerk shall enter in the County Clerk Lien Record
the names of the persons mentioned in the warrant, and the amount
of the tax and penalty for which the warrant is issued and the
date when such copy is recorded. Thereupon the amount of the
warrant so recorded shall become a lien upon the title to any
interest in real property or personal property of the persons
against whom it is issued in the same manner as a judgment that
creates a judgment lien under ORS chapter 18. The sheriff shall
thereupon proceed upon the same in all respects, with like effect
and in the manner prescribed by law in respect to execution
issued against property upon judgment of a court of record, and
the sheriff is entitled to the same fees for services in
executing the warrant to be collected in the same manner. If a
warrant is returned not satisfied in full, the department shall
have the same remedies to enforce the claim for taxes as if the
people of the state had recovered judgment for the amount of the
tax.
SECTION 5. ORS 321.570 is amended to read:
321.570. (1) If any tax imposed by ORS 321.005 to 321.185,
321.560 to 321.600 or 321.700 to 321.754, or any portion of the
tax, is not paid within 30 days after the date that the written
notice and demand for payment required under ORS 305.895 is
mailed, the Department of Revenue { + or a collection agency
engaged by the department under ORS 305.850 + } may issue a
warrant, directed to the sheriff of any county of the state,
commanding the sheriff to levy upon and sell the real and
personal property of the taxpayer owning the same, found within
that county, for the payment of the amount of the tax, with the
added penalties, interest and cost of executing the warrant, and
to return the warrant to the department { + or collection
agency + } and to pay to it the money collected from the sale,
within 60 days after receipt of the warrant. A copy of the
warrant shall be mailed or delivered to the taxpayer by the
department { + or collection agency + } at the taxpayer's
last-known address.
(2) The sheriff shall, within five days after the receipt of
the warrant, record a copy with the county clerk, and the clerk
shall immediately enter in the County Clerk Lien Record the name
of the taxpayer mentioned in the warrant, and the amount of the
tax or portion of the tax and penalties for which the warrant is
issued and the date when the copy is recorded. The amount of the
warrant so recorded shall become a lien upon the title to and
interest in real property of the taxpayer against which it is
issued, in the same manner as a judgment that creates a judgment
lien under ORS chapter 18. The sheriff immediately shall proceed
upon the warrant in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued
against property upon judgments of a court of record, and shall
be entitled to the same fees for services in executing the
warrant, to be added to and collected as a part of the warrant
liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
authorized to collect this tax. In the execution of the warrant,
such agent has the powers conferred by law upon sheriffs, but is
entitled to no fee or compensation in excess of actual expenses
paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the taxpayer as if the state had a recorded
judgment against the taxpayer for the amount of the tax.
SECTION 6. ORS 323.390 is amended to read:
323.390. (1) If any tax imposed by ORS 323.005 to 323.482 or
any portion of such tax is not paid within 30 days after notice
of a deficiency determination is given pursuant to ORS 323.403 or
of a tax determined under ORS 323.385, and no provision is made
to secure the payment thereof by bond, deposit or otherwise,
pursuant to regulations promulgated by the Department of Revenue,
the department { + or a collection agency engaged by the
department under ORS 305.850 + } shall:
(a) Assess a collection charge of $5 if the sum of the tax,
penalty and interest then due exceeds $10.
(b) Issue a warrant directed to the sheriff of any county of
the state commanding the sheriff to levy upon and sell the real
and personal property of the taxpayer found within that county,
for the payment of the amount of the tax, with the added
penalties, interest, collection charge and the sheriff's cost of
executing the warrant, and to return such warrant to the
department { + or collection agency + } and pay to it the money
collected by virtue thereof by a time to be therein specified,
not less than 60 days from the date of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy thereof,
and thereupon the clerk shall enter in the County Clerk Lien
Record the name of the taxpayer mentioned in the warrant, and the
amount of the tax or portion thereof and penalties and interest
for which the warrant is issued and the date when such copy is
recorded. Thereupon the amount of the warrant so recorded shall
become a lien upon the title to and interest in property of the
taxpayer against whom it is issued in the same manner as a
judgment that creates a judgment lien under ORS chapter 18. The
sheriff thereupon shall proceed upon the same in all respects,
with like effect and in the same manner prescribed by law in
respect to executions issued against property upon judgment of a
court of record, and shall be entitled to the same fees for
services in executing the warrant, to be added to and collected
as a part of the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
authorized to collect income taxes, and in the execution thereof
the agent shall have all the powers conferred by law upon
sheriffs, but is entitled to no fee or compensation in excess of
actual expenses paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the taxpayer as if the people of the state had
recovered judgment against the taxpayer for the amount of the
tax.
SECTION 7. ORS 323.610 is amended to read:
323.610. (1) If any tax imposed under ORS 323.500 to 323.645,
or any portion of the tax, is not paid within the time provided
by law and no provision is made to secure the payment of the tax
by bond, deposit or otherwise, pursuant to rules adopted by the
Department of Revenue, the department { + or a collection agency
engaged by the department under ORS 305.850 + } may issue a
warrant directed to the sheriff of any county of the state
commanding the sheriff to levy upon and sell the real and
personal property of the taxpayer found within the county, for
the payment of the amount of the tax, with the added penalties,
interest and the sheriff's cost of executing the warrant, and to
return the warrant to the department { + or collection
agency + } and pay to it the money collected from the sale,
within 60 days after the date of receipt of the warrant.
(2) The sheriff shall, within five days after the receipt of
the warrant, record with the clerk of the county a copy of the
warrant, and the clerk shall immediately enter in the County
Clerk Lien Record the name of the taxpayer mentioned in the
warrant, the amount of the tax or portion of the tax and
penalties for which the warrant is issued and the date the copy
is recorded. The amount of the warrant so recorded shall become a
lien upon the title to and interest in real property of the
taxpayer against whom it is issued in the same manner as a
judgment that creates a judgment lien under ORS chapter 18. The
sheriff immediately shall proceed upon the warrant in all
respects, with like effect and in the same manner prescribed by
law in respect to executions issued against property upon
judgment of a court of record, and shall be entitled to the same
fees for services in executing the warrant, to be added to and
collected as a part of the warrant liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
authorized to collect the taxes imposed by ORS 323.500 to
323.645. In the execution of the warrant, the agent shall have
all the powers conferred by law upon sheriffs, but is entitled to
no fee or compensation in excess of actual expenses paid in the
performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the taxpayer as if the people of the state had
recovered judgment against the taxpayer for the amount of the
tax.
SECTION 8. ORS 324.190 is amended to read:
324.190. (1) If any tax imposed by this chapter, or any portion
of such tax, is not paid within 30 days after the date that the
written notice and demand for payment required under ORS 305.895
is mailed, the Department of Revenue { + or a collection agency
engaged by the department under ORS 305.850 + } shall issue a
warrant, directed to the sheriff of any county of the state,
commanding the sheriff to levy upon and sell the real and
personal property of the person owing the tax, found within that
county, for the payment in the amount thereof, with the added
penalties, interest and cost of executing the warrant, and to
return the warrant to the department { + or collection
agency + } and to pay to it the money collected by virtue
thereof, within 60 days after receipt of the warrant. A copy of
the warrant shall be mailed or delivered to the taxpayer by the
department { + or collection agency + } at the taxpayer's
last-known address.
(2) The sheriff shall, within five days after the receipt of
the warrant, record a copy with the county clerk, and thereupon
the clerk shall enter in the County Clerk Lien Record the name of
the person mentioned in the warrant, and the amount of the tax or
portion thereof and penalties for which the warrant is issued and
the date when the copy is recorded. Thereupon the amount of the
warrant so recorded shall become a lien upon the title to and
interest in real property of the person against which it is
issued, in the same manner as a judgment that creates a judgment
lien under ORS chapter 18. The sheriff thereupon shall proceed
upon the warrant in all respects, with like effect, and in the
same manner prescribed by law in respect to executions issued
against property upon judgments of a court of records, and shall
be entitled to the same fees for services in executing the
warrant, to be added to and collected as a part of the warrant
liability.
(3) In the discretion of the department a warrant of like
terms, force and effect may be issued and directed to any agent
of the department authorized by it to collect this tax. In the
execution of the warrant, such agent has the powers conferred by
law upon sheriffs, but is entitled to no fee or compensation in
excess of actual expenses paid in the performance of such duty.
(4) If a warrant is returned not satisfied in full, the
department shall have the same remedies to enforce the claim for
taxes against the owner as if the state had a recorded judgment
against the owner for the amount of the tax.
SECTION 9. ORS 18.854 is amended to read:
18.854. (1) Any state agency { + or collection agency + }
authorized to issue warrants to collect taxes and debts owed to
the State of Oregon, including but not limited to warrants issued
pursuant to ORS 179.655, 184.644, 267.385, 293.250, 314.430,
316.207, 320.080, 321.570, 323.390, 411.703, 657.396, 657.642,
657.646, 705.175 and 825.504, or any county tax collector
authorized to issue warrants to collect taxes and debts owed to
the county pursuant to ORS 311.625, may garnish property of a
debtor in the possession, control or custody of a person other
than the debtor by delivering to the person all of the following:
(a) A notice of garnishment;
(b) A warrant, or a true copy of a warrant;
(c) The items specified in ORS 18.650 (1)(b) to (d); and
(d) Any garnishee's search fee payable as provided in ORS
18.790.
(2) A notice of garnishment may be issued by any person
designated by the state agency { + , by the collection agency + }
or by the county tax collector. A warrant need not be recorded in
the County Clerk Lien Record as a condition of issuing a notice
of garnishment under the provisions of this section. The
provisions of ORS 18.800 do not apply to a notice of garnishment.
(3) If any of the items described in subsection (1) of this
section are not delivered to the garnishee, a notice of
garnishment shall not be effective to garnish any property of the
debtor, and the garnishee shall not be required to respond to the
garnishment and may proceed to deal with any property of the
debtor as though the notice of garnishment had not been issued.
(4) Notwithstanding ORS 18.652, a notice of garnishment and the
other items required by subsection (1) of this section may be
delivered in person by any employee of the state agency { + , of
the collection agency + } or of the county tax collector
authorized by the agency or the county to deliver the notice of
garnishment, or by certified mail, return receipt requested. The
employee need not be covered by the errors and omissions
insurance required in ORS 18.652.
(5) Notwithstanding any provision of ORS 18.600 to 18.850, a
debt calculation form need not be prepared or delivered for any
notice of garnishment.
(6) Notwithstanding ORS 18.792, the duty of a garnishee to
deliver any property of the debtor that may be contained in a
safe deposit box that is in the garnishee's possession, control
or custody at the time of delivery of the notice of garnishment
to the garnishee is conditioned upon the state agency { + , the
collection agency + } or the county tax collector first paying to
the garnishee, in addition to the search fee provided for in ORS
18.790, all reasonable costs incurred by the garnishee in gaining
entry to the safe deposit box. The costs shall be paid to the
garnishee by the state agency { + , the collection agency + } or
the county tax collector at least five days before the date the
state agency { + , the collection agency + } or the county tax
collector takes possession of the property in the safe deposit
box. If the state agency { + , the collection agency + } or the
county tax collector fails to pay such costs to the garnishee
within 20 days after the delivery of the garnishee response, the
garnishment shall not be effective to garnish any property of the
debtor that may be contained in the safe deposit box and the
garnishee may proceed to deal with the safe deposit box and its
contents as though the notice of garnishment had not been issued.
Nothing in this subsection limits the rights of a state
agency { + , collection agency + } or county tax collector to
reach the contents of any safe deposit box in any manner
otherwise provided by law.
(7) Except as provided in this section and ORS 18.855 and
18.857, all provisions of ORS 18.600 to 18.850 apply to notices
of garnishment. The state agency { + , collection agency + } or
county tax collector shall modify the forms provided in ORS
18.600 to 18.850 as necessary to allow use of those forms for
notices of garnishment. The form of the notice of garnishment
must clearly indicate that the document is a notice of
garnishment and must reflect the date of all warrants on which
the notice of garnishment is based.
(8) The Attorney General may adopt model forms for notices of
garnishment and other documents issued by state agencies and
county tax collectors under this section and ORS 18.855 and
18.857. There is a presumption, as described in ORS 40.120, that
any state agency { + , collection agency + } or county tax
collector that uses a model form adopted by the Attorney General
under this subsection has complied with the requirements of ORS
18.600 to 18.850, and with the provisions of this section and ORS
18.855 and 18.857, with respect to the form of notices of
garnishment.
SECTION 10. { + Section 11 of this 2011 Act is added to and
made a part of ORS 1.194 to 1.200. + }
SECTION 11. { + (1) Judgments described in subsection (2) of
this section are not subject to the provisions of ORS 1.194 to
1.200 or 1.202, and are not subject to collection under ORS
1.204. Upon entry of a judgment described in subsection (2) of
this section, the debt may be collected by the Department of
Revenue under ORS 293.250 or as otherwise provided by law.
(2) The provisions of this section apply to judgments for
taxes, penalties and other amounts that are payable to the state
and that arise out of the administration of tax laws by the
department, including judgments in criminal actions brought to
enforce the tax laws. + }
SECTION 12. { + Section 11 of this 2011 Act applies only to
judgments entered on or after the effective date of this 2011
Act. + }
SECTION 13. ORS 18.855 is amended to read:
18.855. (1) Notwithstanding ORS 18.607, a notice of garnishment
issued by a state agency need not contain the name of a court
whose authority is invoked.
(2) State agencies shall make such modifications as are
necessary in the wage exemption calculation form provided by ORS
18.840 if a notice of garnishment is issued for a debt due for a
state tax that is subject to the provisions of ORS 18.385 (6).
(3) Notwithstanding ORS 18.625, but subject to ORS 18.618 (2),
a notice of garnishment issued by a state agency acts to garnish
all wages earned by the debtor by reason of services to the
garnishee until the full amount of the debt is paid or until the
notice of garnishment is released by the state agency or by court
order. A notice of garnishment issued by a state agency must
contain language reasonably designed to notify the garnishee of
the provisions of this subsection.
(4) Notwithstanding ORS 18.690, a garnishee who receives a
notice of garnishment issued by a state agency need not deliver a
copy of the garnishee response to the clerk of the court, but
must deliver the original of the response to the state agency.
(5) Notwithstanding ORS 18.700, a challenge to a notice of
garnishment issued by a state agency must be delivered in person
or by first class mail to the state agency within the time
specified by ORS 18.700 (2). Upon receiving a challenge, the
state agency shall provide notice of the challenge in the manner
provided by ORS 18.702. Upon a sheriff receiving notice under ORS
18.702, the sheriff shall proceed as provided by ORS 18.760,
except that upon determination of the challenge by an
administrative law judge, the sheriff shall proceed as directed
by the judge. Within 14 days after receiving the challenge, the
state agency must either concede the challenge or give the person
making the challenge opportunity for hearing. If the person
making the challenge requests a hearing, the agency shall
immediately refer the challenge to the Office of Administrative
Hearings established under ORS 183.605. The hearing shall be
conducted as soon as possible. Notwithstanding ORS 183.315, the
hearing shall be conducted as a contested case hearing. An issue
that was decided in a previous hearing, or for which the debtor
was previously afforded an opportunity for hearing, may not be
reconsidered.
(6) If a state agency is issuing a notice of garnishment for
collection of a state tax, and the state agency has reason to
believe that the debtor intends to leave the state or do any
other act that would jeopardize collection of the tax, the state
agency may issue a special notice of garnishment. Any earnings,
as defined in ORS 18.375, garnished under a special notice of
garnishment are not subject to a claim of exemption under ORS
18.385. A special notice of garnishment issued under this
subsection garnishes only that property of the debtor that is in
the garnishee's possession, control or custody at the time the
special notice is delivered, including debts not yet due, and all
wages owed by the garnishee to the debtor at the time the special
notice is delivered. A special notice of garnishment does not act
to garnish wages earned by the debtor by reason of services
rendered to the garnishee after the delivery of the special
notice of garnishment.
(7) A special notice of garnishment issued under subsection (6)
of this section shall contain a statement indicating that it is a
special notice of garnishment under subsection (6) of this
section and a statement reflecting the provisions of subsection
(6) of this section. Notwithstanding ORS 18.854 (1), a wage
exemption calculation form shall not be delivered to the
garnishee with a special notice of garnishment.
{ + (8) A state agency may impose and collect a fee of
$__ for every notice of garnishment issued by the agency. + }
SECTION 14. ORS 18.999 is amended to read:
18.999. This section establishes the right of a plaintiff to
recover certain moneys the plaintiff has expended to recover a
debt under ORS 18.854 or to enforce a judgment and establishes
procedures for that recovery. The following apply to this
section:
(1) When a plaintiff receives moneys under a garnishment,
attachment or payment, the plaintiff may proceed as follows:
(a) Before crediting the total amount of moneys received
against the judgment or debt, the plaintiff may recover and keep
from the total amount received under the garnishment, attachment
or payment any moneys allowed to be recovered under this section.
(b) After recovering moneys as allowed under paragraph (a) of
this subsection, the plaintiff shall credit the remainder of the
moneys received against the judgment or debt as provided by law.
(2) Moneys recovered under subsection (1)(a) of this section
shall not be considered moneys paid on and to be credited against
the original judgment or debt sought to be enforced. No
additional judgment is necessary to recover moneys in the manner
provided in subsection (1)(a) of this section.
(3) The only moneys a plaintiff may recover under subsection
(1)(a) of this section are those described in subsection (4) of
this section that the plaintiff has paid to enforce the existing
specific judgment or debt that the specific garnishment or
attachment was issued to enforce or upon which the payment was
received. Moneys recoverable under subsection (1)(a) of this
section remain recoverable and, except as provided under
subsection (8) of this section, may be recovered from moneys
received by the plaintiff under subsequent garnishments,
attachments or payments on the same specific judgment or debt.
(4) This section allows the recovery only of the following:
(a) Statutorily established moneys that meet the requirements
under subsection (3) of this section, as follows:
(A) Garnishee's search fees under ORS 18.790.
(B) Fees for delivery of writs of garnishment under ORS 18.652.
(C) Circuit court fees as provided under ORS 21.325.
(D) County court fees as provided under ORS 5.125.
(E) County clerk recording fees as provided in ORS 205.320.
(F) Actual fees or disbursements made under ORS 21.410.
(G) Costs of execution as provided in ORS 105.112.
(H) Fees paid to an attorney for issuing a garnishment in an
amount not to exceed $18 for each garnishment.
(I) Costs of an execution sale as described in ORS 18.950 (2).
(J) Fees paid under ORS 21.125 for motions and responses to
motions filed after entry of a judgment.
{ + (K) Fees for notices of garnishment imposed under ORS
18.855 (8). + }
(b) Interest on the amounts specified in paragraph (a) of this
subsection at the rate provided for judgments in ORS 82.010 for
the period of time beginning with the expenditure of the amount
and ending upon recovery of the amount under this section.
(5) The plaintiff shall be responsible for doing all of the
following:
(a) Maintaining a precise accounting of moneys recovered under
subsection (1)(a) of this section and making the accounting
available for any proceeding relating to that judgment or debt.
(b) Providing reasonable notice to the defendant of moneys the
plaintiff recovers under subsection (1)(a) of this section.
(6) Moneys recovered under subsection (1)(a) of this section
remain subject to all other provisions of law relating to
payments, or garnished or attached moneys including, but not
limited to, those relating to exemption, claim of exemption,
overpayment and holding periods.
(7) Nothing in this section limits the right of a plaintiff to
recover moneys described in this section or other moneys in any
manner otherwise allowed by law.
(8) A writ of garnishment or attachment is not valid if issued
solely to recover moneys recoverable under subsection (1)(a) of
this section unless the right to collect the moneys is first
reduced to a judgment or to a debt enforceable under ORS 18.854.
SECTION 15. ORS 18.999, as amended by section 7, chapter 659,
Oregon Laws 2009, is amended to read:
18.999. This section establishes the right of a plaintiff to
recover certain moneys the plaintiff has expended to recover a
debt under ORS 18.854 or to enforce a judgment and establishes
procedures for that recovery. The following apply to this
section:
(1) When a plaintiff receives moneys under a garnishment,
attachment or payment, the plaintiff may proceed as follows:
(a) Before crediting the total amount of moneys received
against the judgment or debt, the plaintiff may recover and keep
from the total amount received under the garnishment, attachment
or payment any moneys allowed to be recovered under this section.
(b) After recovering moneys as allowed under paragraph (a) of
this subsection, the plaintiff shall credit the remainder of the
moneys received against the judgment or debt as provided by law.
(2) Moneys recovered under subsection (1)(a) of this section
shall not be considered moneys paid on and to be credited against
the original judgment or debt sought to be enforced. No
additional judgment is necessary to recover moneys in the manner
provided in subsection (1)(a) of this section.
(3) The only moneys a plaintiff may recover under subsection
(1)(a) of this section are those described in subsection (4) of
this section that the plaintiff has paid to enforce the existing
specific judgment or debt that the specific garnishment or
attachment was issued to enforce or upon which the payment was
received. Moneys recoverable under subsection (1)(a) of this
section remain recoverable and, except as provided under
subsection (8) of this section, may be recovered from moneys
received by the plaintiff under subsequent garnishments,
attachments or payments on the same specific judgment or debt.
(4) This section allows the recovery only of the following:
(a) Statutorily established moneys that meet the requirements
under subsection (3) of this section, as follows:
(A) Garnishee's search fees under ORS 18.790.
(B) Fees for delivery of writs of garnishment under ORS 18.652.
(C) Circuit court fees as provided under ORS 21.325.
(D) County court fees as provided under ORS 5.125.
(E) County clerk recording fees as provided in ORS 205.320.
(F) Actual fees or disbursements made under ORS 21.410.
(G) Costs of execution as provided in ORS 105.112.
(H) Fees paid to an attorney for issuing a garnishment in an
amount not to exceed $12 for each garnishment.
(I) Costs of an execution sale as described in ORS 18.950 (2).
(J) Fees paid under ORS 21.125 for motions and responses to
motions filed after entry of a judgment.
{ + (K) Fees for notices of garnishment imposed under ORS
18.855 (8). + }
(b) Interest on the amounts specified in paragraph (a) of this
subsection at the rate provided for judgments in ORS 82.010 for
the period of time beginning with the expenditure of the amount
and ending upon recovery of the amount under this section.
(5) The plaintiff shall be responsible for doing all of the
following:
(a) Maintaining a precise accounting of moneys recovered under
subsection (1)(a) of this section and making the accounting
available for any proceeding relating to that judgment or debt.
(b) Providing reasonable notice to the defendant of moneys the
plaintiff recovers under subsection (1)(a) of this section.
(6) Moneys recovered under subsection (1)(a) of this section
remain subject to all other provisions of law relating to
payments, or garnished or attached moneys including, but not
limited to, those relating to exemption, claim of exemption,
overpayment and holding periods.
(7) Nothing in this section limits the right of a plaintiff to
recover moneys described in this section or other moneys in any
manner otherwise allowed by law.
(8) A writ of garnishment or attachment is not valid if issued
solely to recover moneys recoverable under subsection (1)(a) of
this section unless the right to collect the moneys is first
reduced to a judgment or to a debt enforceable under ORS 18.854.
SECTION 16. { + The amendments to ORS 18.855 and 18.999 by
sections 13, 14 and 15 of this 2011 Act apply only to notices of
garnishment issued on or after the effective date of this 2011
Act. + }
SECTION 17. ORS 305.330 is amended to read:
305.330. (1) As used in this section, 'reorganized business
entity':
(a) Means a business entity that, while operating substantially
the same business as another entity that incurred a liability for
taxes, interest or penalties { - administered by the Department
of Revenue - } , has been converted to a different form of
business entity from that of the entity that incurred the
liability or has changed ownership from that of the entity that
incurred the liability; and
(b) Does not include a business entity that is converted to a
different form or that has changed ownership solely because of a
transfer of assets or because of a transfer of an interest of an
investor who has no right to manage the business entity,
including, but not limited to, the interest of:
(A) A person that is solely a minority shareholder in a
corporation;
(B) A member of a manager-managed limited liability company; or
(C) A limited partner of a limited partnership that does not
participate in the control of the business of the limited
partnership.
(2) The Department { + of Revenue + } may transfer the
liability for taxes, interest or penalties { - that are
administered and collected by the department - } from the
business entity that incurred the liability to a reorganized
business entity and may assess those amounts against the
reorganized business entity. { + Liabilities that may be
transferred under this section include the following taxes and
any associated interest or penalties:
(a) Taxes that are administered and collected by the
department.
(b) Any tax imposed under ORS 267.385 or other payroll tax. + }
(3) Factors the department may consider when determining if a
business entity is a reorganized business entity include, but are
not limited to, whether the business entity:
(a) Operates from the same physical location as did the
taxpayer owing the debt.
(b) Provides the same services or manufactures the same
products as did the taxpayer owing the debt.
(c) Has one or more of the same:
(A) Corporate directors or officers as did the taxpayer owing
the debt.
(B) Owners or holders of a direct or indirect interest in the
business entity as did the taxpayer owing the debt.
(4) Following the determination to transfer a liability to a
reorganized business entity under subsections (2) and (3) of this
section and notwithstanding ORS 314.835, 314.840 or 314.991, the
department shall send a notice of liability to the reorganized
business entity stating the amount owed by the reorganized
business entity.
(5) Within 30 days from the date of notice of liability given
under subsection (4) of this section, the reorganized business
entity shall:
(a) Pay the liability stated in the notice and any other
penalty or interest related to that liability; or
(b) Advise the department in writing of objections to the
notice of liability and, if desired, request a conference. A
conference requested under this paragraph shall be governed by
those provisions of ORS 305.265 that govern a conference
requested from a notice of deficiency under ORS 305.265.
Notwithstanding ORS 314.835, 314.840 or 314.991, the department
may disclose any information to the reorganized business entity
that the department would be authorized to disclose to the
business entity that incurred the liability.
(6) After a determination of the issues raised in written
objections made under subsection (5) of this section or after a
conference, if a conference was requested, the department shall
mail the reorganized business entity a letter affirming,
canceling or adjusting the notice of liability. If the entity
remains liable for an outstanding amount under this section, the
letter shall be considered a notice of assessment and, within 90
days from the date the letter is mailed, the entity shall:
(a) Pay the amount set forth in the notice of assessment; or
(b) Appeal to the Oregon Tax Court in the manner provided for
an appeal from a notice of assessment.
(7) If neither payment nor written objections to the notice of
liability sent under subsection (4) of this section is received
by the department within 30 days after the date of the notice of
liability, the notice of liability becomes final. The reorganized
business entity may appeal the notice to the tax court within 90
days after the date the notice became final, in the manner
provided for an appeal from a notice of assessment.
SECTION 18. ORS 293.231 is amended to read:
293.231. (1) Except as provided in subsections (4) to (9) of
this section, a state agency, unless otherwise prohibited by law,
shall offer for assignment every liquidated and delinquent
account to a private collection agency or to the Department of
Revenue as provided in ORS 293.250 not later than:
(a) Ninety days from the date the account was liquidated if no
payment has been received on the account within the 90-day
period; or
(b) Ninety days from the date of receipt of the most recent
payment on the account.
(2) Nothing in subsection (1) of this section prohibits a state
agency from offering for assignment a liquidated and delinquent
account to a private collection agency at any time within the
90-day period.
(3) If, after a reasonable time, the private collection agency
is unable to collect the account, the private collection agency
shall notify the state agency that assigned the account that it
has been unable to collect the account and shall relinquish the
account to the state agency. A private collection agency that
collects an account under this section shall be held to the same
standard of confidentiality, service and courtesy imposed on the
state agency that assigned the account.
(4) If a state agency assigns a liquidated and delinquent
account to the Department of Revenue as provided in ORS 293.250,
the department shall have six months from the date of assignment
to collect a payment. If the department does not collect a
payment within that six-month period or if six months have
elapsed since the date of receipt of the most recent payment on
the account, the department shall notify the state agency. The
state agency shall then immediately offer for assignment the debt
to a private collection agency.
(5) The provisions of subsection (1) of this section do not
apply to a liquidated and delinquent account that is prohibited
by state or federal law or regulation from assignment or
collection.
(6) The Oregon Department of Administrative Services may adopt
rules exempting specified kinds of liquidated and delinquent
accounts from the time periods established in subsections (1),
(2) and (4) of this section.
(7) The Oregon Department of Administrative Services shall
adopt rules exempting liquidated and delinquent accounts that
originate in the Department of Revenue or the Employment
Department from the time periods established in subsections (1),
(2) and (4) of this section.
(8) A liquidated and delinquent account that is subject to
assignment under this section shall be assigned to a private
collection agency if more than one year has elapsed without a
payment on the account.
(9) Notwithstanding subsection (1) of this section, a state
agency may, at its discretion, choose not to offer for assignment
to a private collection agency a liquidated and delinquent
account that:
(a) Is secured by a consensual security interest in real or
personal property;
(b) Is a court-ordered judgment that includes restitution or a
payment to the Department of Justice Crime Victims' Assistance
Section;
(c) Is in litigation, including bankruptcy, arbitration and
mediation;
(d) Is a student loan owed by a student who is attending
school;
(e) Is owed to a state agency by a local or state government or
by the federal government;
(f) Is owed by a debtor who is hospitalized in a state hospital
as defined in ORS 162.135 or who is on public assistance as
defined in ORS 411.010;
(g) Is owed by a debtor who is imprisoned;
(h) Is less than $100, including penalties; or
(i) Would result in loss of federal funding if assigned.
(10) Nothing in this section prohibits a state agency from
collecting a tax offset after a liquidated and delinquent account
is assigned to a private collection agency.
(11) For the purposes of this section, a state agency shall be
deemed to have offered for assignment an account if:
(a) The terms of the offer are of a type generally acceptable
within the collections industry for the type of account offered
for assignment; and
(b) The offer is made to a private collection agency that
engages in collecting on accounts of the type sought to be
assigned or is made generally available to private collection
agencies through a bid or request for proposal process.
(12) A state agency { - that retains a private collection
agency under this section - } may add a fee to the amount of the
liquidated and delinquent account { - as provided in ORS
697.105 - } . A fee may not be added under this subsection unless
the state agency has provided notice to the debtor:
(a) Of the existence of the debt;
(b) That the debt may be assigned { - to a private collection
agency - } for collection; and
(c) Of the amount of the fee that may be added to the debt
under this subsection.
(13) Except as provided by federal law, the state agency may
not add a fee under subsection (12) of this section that
exceeds { + :
(a) + } The collection fee of the private collection
agency { + , if the state agency has retained a private
collection agency to collect the liquidated and delinquent
account; or
(b) The maximum charge for the cost of assistance retained by
the Department of Revenue under ORS 293.250 (3)(a), if the state
agency assigns the liquidated and delinquent account to the
Department of Revenue under ORS 293.250 + }.
SECTION 19. ORS 697.105 is amended to read:
697.105. (1) Except as provided in ORS 1.202 { - and
293.231 - } , if a public body, as defined in ORS 174.109, uses a
private collection agency to collect a debt owed to the public
body, the public body may add a reasonable fee to the amount of
the debt, payable by the debtor, to compensate the public body,
in whole or in part, for the collection agency fee incurred or to
be incurred.
(2) A fee may not be added under subsection (1) of this section
unless the public body has provided notice to the debtor:
(a) Of the existence of the debt;
(b) That the debt may be assigned to a private collection
agency for collection; and
(c) Of the amount of the fee that may be added to the debt
under subsection (1) of this section.
(3) Except as provided by federal law, the public body may not
add a fee under this section that exceeds the collection fee of
the private collection agency.
SECTION 20. { + Section 21 of this 2011 Act is added to and
made a part of ORS chapter 314. + }
SECTION 21. { + (1) The Department of Revenue may by rule
establish and charge a reasonable collection fee, not to exceed $
___ , to be imposed on taxpayers that participate in an
installment payment plan for taxes due under this chapter or ORS
chapter 316, 317 or 318.
(2) The fee shall be added to the taxpayer's total tax
liability and shall be in addition to any penalty provided under
ORS 314.400 or other law.
(3) If a taxpayer participating in an installment payment plan
for taxes due under this chapter or ORS chapter 316, 317 or 318
completes all payments under the plan on or before the dates on
which payments are due, one-half of the amount of the collection
fee imposed on the taxpayer shall be refunded to the
taxpayer. + }
SECTION 22. { + This 2011 Act takes effect on the 91st day
after the date on which the 2011 session of the Seventy-sixth
Legislative Assembly adjourns sine die. + }
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