Session of 2000
HOUSE BILL No. 2868
By Committee on Federal and State Affairs
2-7
9 AN ACT
concerning the disposition of certain seized firearms; amending
10 K.S.A. 79-5205,
79-5211 and 79-5212 and K.S.A. 1999 Supp. 79-3235
11 and 79-3617 and
repealing the existing sections.
12
13 Be it enacted by the Legislature of the
State of Kansas:
14 Section
1. K.S.A. 1999 Supp. 79-3235 is hereby amended to read as
15 follows: 79-3235. If any tax imposed by
this act or any portion of such tax
16 is not paid within 60 days after it becomes
due, the secretary or the
17 secretary's designee shall issue a warrant
under the secretary's or the
18 secretary's designee's hand and official
seal, directed to the sheriff of any
19 county of the state, commanding the sheriff
to levy upon and sell the real
20 and personal property, other than
firearms, of the taxpayer, and to seize,
21 appraise and dispose of firearms of the
taxpayer, found within the sheriff's
22 county for the payment of the amount
thereof, with the added penalties,
23 interest and the cost of executing the
warrant and to return the warrant
24 to the secretary or the secretary's
designee and pay to the secretary or
25 the secretary's designee the money
collected by virtue of it not more than
26 60 days from the date of the warrant.
Firearms seized shall be appraised
27 and disposed of in the same manner
prescribed in K.S.A. 79-5212, and
28 amendments thereto. The sheriff,
within five days after the receipt of the
29 warrant, shall file with the clerk of the
district court of the county a copy
30 thereof, and thereupon the clerk shall
either enter in the appearance
31 docket the name of the taxpayer mentioned
in the warrant, the amount
32 of the tax or portion of it, interest and
penalties for which the warrant is
33 issued and the date such copy is filed and
note the taxpayer's name in the
34 general index. No fee shall be charged for
either entry. The amount of
35 such warrant so docketed shall thereupon
become a lien upon the title
36 to and interest in the real property of the
taxpayer against whom it is
37 issued. The sheriff shall proceed in the
same manner and with the same
38 effect as prescribed by law with respect to
executions issued against prop-
39 erty upon judgments of a court of record
and shall be entitled to the same
40 fees for services to be collected in the
same manner.
41 The court in which the
warrant is docketed shall have jurisdiction over
42 all subsequent proceedings as fully as
though a judgment had been ren-
43 dered in the court. In the discretion of
the secretary or the secretary's
2
1 designee a warrant of like terms,
force and effect may be issued and
2 directed to any officer or employee
of the secretary, and in the execution
3 thereof such officer or employee
shall have all the powers conferred by
4 law upon sheriffs, and the subsequent
proceedings thereunder shall be
5 the same as provided where the
warrant is issued directly to the sheriff.
6 The taxpayer shall have the right to
redeem the real estate within a period
7 of 18 months from the date of such
sale. If a warrant is returned, unsa-
8 tisfied in full, the secretary or the
secretary's designee shall have the same
9 remedies to enforce the claim for
taxes as if the state of Kansas had
10 recovered judgment against the taxpayer for
the amount of the tax. No
11 law exempting any goods and chattels, lands
and tenements from forced
12 sale under execution shall apply to a levy
and sale under any such warrant
13 or upon any execution issued upon any
judgment rendered in any action
14 for income taxes. Except as provided
further, the secretary or the secre-
15 tary's designee shall have the right after
a warrant has been returned
16 unsatisfied or satisfied only in part, to
issue alias warrants until the full
17 amount of the tax is collected.
18 If execution is not
issued within 10 years from the date of the docketing
19 of any such warrant, or if 10 years shall
have intervened between the date
20 of the last execution issued on such
warrant, and the time of issuing
21 another writ of execution thereon, such
warrant shall become dormant,
22 and shall cease to operate as a lien on the
real estate of the delinquent
23 taxpayer. Such dormant warrant may be
revived in like manner as dor-
24 mant judgment under the code of civil
procedure.
25 Sec.
2. K.S.A. 1999 Supp. 79-3617 is hereby amended to read as
26 follows: 79-3617. Whenever any taxpayer
liable to pay any sales or com-
27 pensating tax, refuses or neglects to pay
the tax, the amount, including
28 any interest or penalty, shall be collected
in the following manner. The
29 secretary of revenue or the secretary's
designee shall issue a warrant un-
30 der the hand of the secretary or the
secretary's designee and official seal
31 directed to the sheriff of any county of
the state commanding the sheriff
32 to levy upon and sell the real and personal
property, other than firearms,
33 of the taxpayer, and to seize, appraise
and dispose of firearms of the
34 taxpayer, found within the sheriff's
county to satisfy the tax, including
35 penalty and interest, and the cost of
executing the warrant and to return
36 such warrant to the secretary or the
secretary's designee and pay to the
37 secretary or the secretary's designee the
money collected by virtue thereof
38 not more than 90 days from the date of the
warrant. Firearms seized shall
39 be appraised and disposed of in the same
manner prescribed in K.S.A.
40 79-5212, and amendments thereto. The
sheriff shall, within five days, after
41 the receipt of the warrant file with the
clerk of the district court of the
42 county a copy thereof, and thereupon the
clerk shall either enter in the
43 appearance docket the name of the taxpayer
mentioned in the warrant,
3
1 the amount of the tax or portion of
it, interest and penalties for which
2 the warrant is issued and the date
such copy is filed and note the tax-
3 payer's name in the general index. No
fee shall be charged for either such
4 entry. The amount of such warrant so
docketed shall thereupon become
5 a lien upon the title to, and
interest in, the real property of the taxpayer
6 against whom it is issued. The
sheriff shall proceed in the same manner
7 and with the same effect as
prescribed by law with respect to executions
8 issued against property upon
judgments of a court of record, and shall be
9 entitled to the same fees for
services.
10 The court in which the
warrant is docketed shall have jurisdiction over
11 all subsequent proceedings as fully as
though a judgment had been ren-
12 dered in the court. A warrant of similar
terms, force and effect may be
13 issued by the secretary or the secretary's
designee and directed to any
14 officer or employee of the secretary or the
secretary's designee, and in
15 the execution thereof such officer or
employee shall have all the powers
16 conferred by law upon sheriffs with respect
to executions issued against
17 property upon judgments of a court of
record and the subsequent pro-
18 ceedings thereunder shall be the same as
provided where the warrant is
19 issued directly to the sheriff. The
taxpayer shall have the right to redeem
20 the real estate within a period of 18
months from the date of such sale.
21 If a warrant is returned, unsatisfied in
full, the secretary or the secretary's
22 designee shall have the same remedies to
enforce the claim for taxes as
23 if the state of Kansas had recovered
judgment against the taxpayer for
24 the amount of the tax. No law exempting any
goods and chattels, land
25 and tenements from forced sale under
execution shall apply to a levy and
26 sale under any of the warrants or upon any
execution issued upon any
27 judgment rendered in any action for sales
or compensating taxes. Except
28 as provided further, the secretary or the
secretary's designee shall have
29 the right after a warrant has been returned
unsatisfied, or satisfied only
30 in part, to issue alias warrants until the
full amount of the tax is collected.
31 No costs incurred by the sheriff or the
clerk of the court shall be charged
32 to the secretary or the secretary's
designee.
33 If execution is not
issued within 10 years from the date of the docketing
34 of any such warrant, or if 10 years shall
have intervened between the date
35 of the last execution issued on such
warrant, and the time of issuing
36 another writ of execution thereon, such
warrant shall become dormant,
37 and shall cease to operate as a lien on the
real estate of the delinquent
38 taxpayer. Such dormant warrant may be
revived in like manner as dor-
39 mant judgments under the code of civil
procedure.
40 Sec.
3. K.S.A. 79-5205 is hereby amended to read as follows:
79-
41 5205. (a) At such time as the director of
taxation shall determine that a
42 dealer has not paid the tax as provided by
K.S.A. 79-5204, and amend-
43 ments thereto, the director may immediately
assess a tax based on per-
4
1 sonal knowledge or information
available to the director of taxation; mail
2 to the taxpayer at the taxpayer's
last known address or serve in person, a
3 written notice of the amount of tax,
penalties and interest; and demand
4 its immediate payment. If payment is
not immediately made, because
5 collection of every assessment made
hereunder is presumed to be in jeop-
6 ardy due to the nature of the
commodity being taxed, the director may
7 immediately collect the tax,
penalties and interest in any manner provided
8 by K.S.A. 79-5212, and amendments
thereto.
9 (b) The
taxpayer may appeal the assessment within 15 days from the
10 date of mailing of the notice or the date
of personal service of the notice
11 given pursuant to subsection (a), by
requesting in writing a hearing by
12 the director on the correctness of the
assessment. The hearing shall be
13 conducted in accordance with the provisions
of the Kansas administrative
14 procedure act. An appeal of the assessment
shall not stay the collection
15 of the assessment but shall stay the sale
of real or personal property or
16 the disposal of firearms seized
pursuant to K.S.A. 79-5212 until the di-
17 rector rules on the correctness of the
assessment.
18 (c) The tax,
penalties and interest assessed by the director of taxation
19 are presumed to be valid and correctly
determined and assessed. The
20 burden is upon the taxpayer to show their
incorrectness or invalidity. Any
21 statement filed by the director of taxation
with the court or any other
22 certificate by the director of taxation of
the amount of tax, penalties and
23 interest determined or assessed is
admissible in evidence and is prima
24 facie evidence of the facts it
contains.
25 (d) In making an
assessment pursuant to subsection (a), the director
26 of taxation may consider but shall not be
bound by a plea agreement or
27 judicial determination made in any criminal
case.
28 Sec.
4. K.S.A. 79-5211 is hereby amended to read as follows:
79-
29 5211. All moneys received from the
collection of taxes imposed under the
30 provisions of K.S.A. 79-5201 et
seq., and amendments thereto, and 25%
31 of all moneys collected from assessments of
delinquent taxes and penalties
32 imposed thereunder, shall be remitted to
the state treasurer who shall
33 deposit the entire amount thereof in the
state treasury and credit the
34 same to the state general fund. The
appraised value of a firearm seized
35 pursuant to K.S.A. 79-5212, and
amendments thereto, which is applied
36 to a taxpayer's liability shall not be
considered as a collection of moneys
37 under this section. The director of
taxation shall remit 75% of all moneys
38 received from the collection of assessments
of delinquent taxes and pen-
39 alties imposed pursuant to the provisions
of K.S.A. 79-5201 et seq., and
40 amendments thereto, as follows: (a) If the
law enforcement agency which
41 conducted the investigation is a county
agency, the entire amount shall
42 be deposited in the county treasury and
credited to a special law enforce-
43 ment trust fund for use solely for law
enforcement and criminal prose-
5
1 cution purposes; (b) if the law
enforcement agency which conducted the
2 investigation is a city agency, the
entire amount shall be deposited in the
3 city treasury and credited to a
special law enforcement trust fund for use
4 solely for law enforcement and
criminal prosecution purposes; and (c) if
5 more than one law enforcement agency
is substantially involved in the
6 investigative process, the amount
shall be distributed equally among the
7 city, county and state law
enforcement agencies involved and credited to
8 the appropriate county and city
special law enforcement trust funds and
9 state law enforcement agency funds
unless an alternate distribution is
10 mutually agreed upon by the law enforcement
agencies involved and sub-
11 mitted in writing to the director of
taxation. Funds received by city and
12 county treasurers shall not be considered
to be a source of revenue to
13 meet normal operating expenses of law
enforcement agencies.
14 Sec.
5. K.S.A. 79-5212 is hereby amended to read as follows:
79-
15 5212. (a) Whenever a taxpayer liable to pay
any tax, penalty or interest
16 assessed pursuant to K.S.A. 79-5205, and
amendments thereto, refuses
17 or neglects to immediately pay the amount
due, the director of taxation
18 may issue one or more warrants for the
immediate collection of the
19 amount due, directed to the sheriff of any
county of the state commanding
20 the sheriff to seize and sell the real and
personal property, other than
21 firearms, of the taxpayer, and to
seize, appraise and dispose of firearms
22 of the taxpayer, found within the
sheriff's county to satisfy the amount
23 specified on the warrant and the cost of
executing the warrant. The di-
24 rector of taxation may also issue one or
more warrants directed to any
25 employee of the department of revenue
commanding the employee to
26 seize and sell the real and personal
property, other than firearms, of the
27 taxpayer, and to seize, appraise and
dispose of firearms of the taxpayer,
28 found anywhere within the state of Kansas
to satisfy the amount specified
29 on the warrant and the cost of executing
the warrant. A copy of the
30 warrant shall also be mailed to the
taxpayer at the taxpayer's last known
31 address or served upon the taxpayer in
person.
32 (b) The sheriff
or department of revenue employee shall proceed to
33 execute upon the warrant in the same manner
as provided for attachment
34 orders by K.S.A. 60-706, 60-707 and 60-710,
and amendments thereto,
35 except as otherwise provided herein. In the
execution of a warrant issued
36 to a department of revenue employee, the
employee shall have all of the
37 powers conferred by law upon sheriffs. Any
law enforcement officer may
38 assist in the execution of a warrant if
requested to do so by a department
39 of revenue employee.
40 (c) No law
exempting any goods and chattels, land and tenements
41 from forced sale under execution shall
apply to a seizure and sale, or in
42 the case of firearms, disposal,
under any warrant.
43 (d) A third party
holding funds or other personal property of the
6
1 taxpayer shall immediately, or as
soon thereafter as possible, after service
2 of the warrant on such third party,
deliver such funds or other personal
3 property to the sheriff or department
of revenue employee, who shall
4 then deliver such to the director of
taxation or the director's designee for
5 deposit toward the balance due on the
taxpayer's assessment.
6 (e) The
sheriff or department of revenue employee shall make return
7 of such warrant to the director of
taxation within 60 days from the date
8 of the warrant. If property is
seized, then the sheriff or department of
9 revenue employee shall also make
return of such warrant to the clerk of
10 the district court in the county where the
property was seized.
11 (f)
(1) If the taxpayer fails to appeal the assessment as
provided by
12 subsection (b) of K.S.A. 79-5205, and
amendments thereto, or if the tax-
13 payer requests a hearing and a final order
has been entered by the director
14 of taxation as to the correctness of the
assessment, then the sheriff or
15 department of revenue employee shall sell
the seized property, other than
16 firearms, at public auction. The
provisions of K.S.A. 60-2406, and amend-
17 ments thereto, shall apply to liens against
the property being sold. Notice
18 of the sale of personal property shall be
given in accordance with K.S.A.
19 60-2409, and amendments thereto. Notice of
the sale of real property
20 shall be given in accordance with K.S.A.
60-2410, and amendments
21 thereto. The taxpayer shall have the right
to redeem real property within
22 a period of six months from the date of the
sale.
23 (2) In the
case of firearms, the director of taxation shall obtain an
24 appraisal of value performed by a
federally licensed firearms dealer or an
25 employee thereof. Such value shall be
credited against the taxpayer's out-
26 standing liability. Subsequent to such
appraisal and credit against the
27 taxpayer's outstanding liability, the
director shall dispose of such firearm
28 or firearms as follows:
29 (A) If the
firearm or firearms may have historical significance and
30 the Kansas state historical society
requests such firearm or firearms, the
31 director shall transfer the firearm or
firearms to the society;
32 (B) if the
city or county law enforcement agency where the firearm
33 or firearms was seized requests such
firearm or firearms, the director shall
34 transfer the firearm or firearms to such
city or county law enforcement
35 agency; or
36 (C) the
director shall cause such firearm or firearms to be
destroyed.
37 At least 30 days
prior to the destruction of such firearm or firearms
38 pursuant to this subsection, the
director shall give written notice by mail
39 to the taxpayer at the taxpayer's last
known address of the appraised value
40 of such firearm or firearms and the date
that the director intends to de-
41 stroy such firearm or firearms. The
director shall also mail a copy of such
42 notice to such city or county law
enforcement agency for any firearm or
43 firearms that do not have historical
significance and the Kansas state
7
1 historical society for any firearm
or firearms that may have historical
2 significance. The taxpayer may
appeal the appraised value of any such
3 firearm or firearms by filing a
written request of a hearing before the
4 district court in which the tax
warrant used to seize such firearm or fire-
5 arms was filed. Such request must
be filed with the district court within
6 15 days after such notice to the
taxpayer was mailed by the director. If
7 no appeal is filed with the
district court within the 15 days, or if upon
8 appeal the district court rules
against the taxpayer, then the director shall
9 transfer such firearm or firearms
to such city or county law enforcement
10 agency or the Kansas state historical
society upon written request received
11 prior to the destruction of such firearm
or firearms. If no such request is
12 received as provided in this subsection,
the director shall destroy such
13 firearm or firearms.
14 (g) The director
of taxation may also direct the sheriff or department
15 of revenue employee to file any warrant
issued pursuant to subsection (a)
16 with the clerk of the district court of any
county in Kansas, and thereupon
17 the clerk shall enter in the appearance
docket the name of the taxpayer
18 mentioned in the warrant, the amount of the
tax or portion of it, interest
19 and penalties for which the warrant is
issued and the date such copy is
20 filed and note the taxpayer's name in the
general index. No fee shall be
21 charged for such entry. The amount of such
warrant shall thereupon
22 become a lien upon the title to, and
interest in, the real property of the
23 taxpayer located within such county.
Thereupon, the director of taxation
24 shall have the same remedies to collect the
amount of the tax, penalty
25 and interest, as if the state of Kansas had
recovered judgment against the
26 taxpayer, including immediately garnishing
the wages or other property
27 of the taxpayer pursuant to K.S.A. 60-716
et seq., and amendments
28 thereto. Such remedies shall be in addition
to the other collection rem-
29 edies provided herein.
30 (h) The director
of taxation shall have the right at any time to issue
31 alias warrants until the full amount of the
tax, penalty and interest is
32 collected.
33 Sec. 6. K.S.A. 79-5205, 79-5211
and 79-5212 and K.S.A. 1999 Supp.
34 79-3235 and 79-3617 are hereby
repealed.
35 Sec. 7. This act shall
take effect and be in force from and after its
36 publication in the statute book.