Colorado Springs City Code § 2.7.1201 FORECLOSURE BY DISTRAINT
2.7.1201: FORECLOSURE BY DISTRAINT:
Liens created hereunder may be foreclosed by seizing under distraint warrant and selling so much of the merchandise, furniture and fixtures, tools and equipment, or other property not otherwise excluded, as may be necessary to discharge the liens.
A. When Distraint Issued: When any of the subparagraphs of this subsection are met, the Director may issue a warrant directed to any employee, agent, or representative of the Department of Finance, sometimes referred to collectively as "Agent" or "Revenue Collector", commanding to distrain, seize, and sell the personal property of the taxpayer except the personal property as is exempt from execution and sale by any statute of this State for the payment of the tax due together with penalties and interest accrued thereon and costs of execution.
1. When any deficiency in tax is not paid within twenty (20) days from the mailing or service of notice of determination, assessment and demand for payment therefor and no hearing has been requested and no appeal from the deficiency assessment has been docketed with any District Court of this State within the period; or
2. When any other amount of tax, penalty or interest is not paid within twenty (20) days from the mailing or service of assessment and demand for payment thereof; or
3. Immediately upon making of a jeopardy assessment or of the issuance of a demand for payment, as provided in section 2.7.1202 of this part.
B. Warrant: The Director may apply to any Judge of the Municipal Court for a warrant authorizing the Director, to search for and seize property located within the City limits for the purpose of enforcing the collection of sales and use taxes. Municipal Court Judges shall issue the warrant after the Director demonstrates that:
1. The premises to which entry is sought contain property that is subject to levy and sale for taxes due; and
2. At least one of the preconditions of subsection A of this section has been satisfied, provided that if the Director has declared a jeopardy assessment under section 2.7.1202 of this part, he sets forth the reasons that collection of the tax will be jeopardized.
3. The procedures to be followed in issuing and executing a warrant pursuant to this subsection shall comply with rule 241(C) and (D) of the Colorado Municipal Court Rules of Procedure, provided that an officer authorized by law under rule 241(C) and (B) shall include the Director.
4. The taxpayer may contest a warrant previously issued under the procedure provided by rule 241(E) of the Colorado Municipal Court Rules of Procedure, except that no proceeding to contest the warrant may be brought after five (5) days prior to the date fixed for sale of the distrained property.
C. Notice Of Distraint Seizure: The agent charged with the collection shall make or cause to be made an account of the goods or effects distrained, a copy of which, signed by the agent making the distraint, shall be left with the owner or possessor, at the owner's or possessor's usual place of abode with a family member over the age of eighteen (18) years, or at the owner's or possessor's usual place of business with a stenographer, bookkeeper, chief clerk, or if the taxpayer is a corporation, shall be left with any officer, manager, general agent or agent for process, with a note of the sum demanded and the time and place of sale; and shall forthwith cause to be published a notice of the time and place of sale, together with a description of the property to be sold, in some newspaper within the county wherein distraint is made or, in lieu thereof and in the discretion of the Director, the agent shall cause the notice to be publicly posted at the courthouse of the county wherein the distraint is made and copies thereof to be posted in at least two (2) other public places within the county.
D. Procedure For Sale: The time fixed for the sale shall be not less than ten (10) days nor more than sixty (60) days from the date of notification to the owner or possessor of the property and the publication or posting of the notices. The sale may be adjourned from time to time by the agent if he deems it advisable but not for a time to exceed in all ninety (90) days from the date first fixed for the sale. When any personal property is advertised for sale under distraint as aforesaid, the agent making the seizure shall proceed to sell the property at public auction, offering the same at not less than a fair minimum price including the expenses of making the seizure and of advertising the sale, and if the amount bid for the property at the sale is not equal to the fair minimum price so fixed, the agent conducting the sale may declare the same to be purchased by the agent for the City. The property so purchased may be sold by the agent under the regulations as may be prescribed by the Director.
E. Recovery Of Property By Owner: In any case of distraint for the payment of taxes, the goods, chattels or effects so distrained shall be restored to the owner or possessor if, prior to the sale, the amount due is paid together with the fees and other charges, or may be redeemed by any person holding a security interest or other evidence of right of possession.
F. Certificate Of Sale; Evidence Of Purchase: In all cases of sale, the agent making the sale shall issue a certificate of sale to each consumer, and the certificate shall be prima facie evidence of the right of the agent to make the sale and conclusive evidence of the regularity of the proceedings in making the sale; and shall transfer to the consumer all right, title and interest of the delinquent taxpayer in and to the property sold; and where the property consists of certificate of stock in the possession of the agent, the certificate of sale shall be notice, when received, to any corporation, company, or association of the transfer, and the certificate of the sale shall be authority for the corporation, company, or association to record the transfer on its books and records; and where the subject of sale is securities or other evidences of debt, in the possession of the agent, the certificate of sale shall be good and valid evidence of title in the person holding the same as against any other person. Any surplus remaining above the taxes, penalties, interest, costs and expenses of making the seizure and of advertising the sale, shall be returned to the owner or the other person having a legal right thereto, and, on demand, the Director shall render an account in writing of the sale. (1968 Code §3-102; Ord. 76-168; Ord. 86-55; Ord. 91-161; Ord. 01-42)