Lenders Beware–Retroactive Tax Lien Trumps Recorded Mortgage [Florida]

Under Florida law, a mortgage lender’s lien against real property takes priority over later filed liens. However, under Fla.Stats. §197.122(1), ad valorem tax liens filed against Florida real property will take priority over a previously filed mortgage – such tax liens become super liens. Not great for lenders, but at least they can deal with exposure to these tax liens against their security by making sure ad valorem taxes are properly paid (e.g., through mortgage escrows and/or covenants in the mortgage to keep taxes current).

Fla.Stats. §196.161 allows a property assessor to go back 10 years and assess taxes, a penalty of 50% of taxes, and 15% interest, for taxes that the assessor lost out on if the owner of the property was improperly granted a homestead exemption. If a lien for these taxes is superior to a mortgage that has been filed prior to the filing of this lien, a mortgage lender’s risk for unpaid ad valorem taxes would be significantly increased.

In a recent case, a mortgage lender recorded a mortgage against real property in September 2007. In January 2014, the county recorded a tax lien under Fla.Stats. §196.161 against the property. In May 2015, the lender foreclosed its mortgage. The trial court held that the county’s tax lien was inferior to the lender’s mortgage lien. So far, so good for the mortgage lender.

On appeal, the county argued that Fla.Stats. §197.122(1) gives superiority to ad valorem tax liens, and thus, the special 10 year tax lien under Fla.Stats. §196.161 was superior to the lender’s mortgage lien. The lender argued that Fla.Stats. §196.161(3) gives the lender superiority – that provision provides “[p]rior to the filing of such notice of lien, any purchaser for value of the subject property shall take free and clear of such lien.” Equating itself to a purchaser, the mortgage lender argued Fla.Stats. §196.161(3) gives it the superior lien.

The appellate court noted that yes, Fla.Stats. §196.161(3) does allow BUYERS of real property to acquire real property without being subject to this 10 year lien if the tax lien is filed after the purchase. However, Fla.Stats. §196.161(3) says nothing about making the 10 year lien subordinate to previously filed liens. Thus, the super lien granted to the tax collectors under Fla.Stats. §197.122(1) trumps mortgage holders.

Mortgage holders will now need to deal with this exposure when making loans, if the property has been granted homestead status. Note that there are other ad valorem tax liens that allow a 10 year retroactive adjustment period, including Fla.Stats. §193.703 (reduction in assessment for living quarters of parents or grandparents), Fla.Stats. §196.075 (additional homestead exemption for persons 65 years or older), Fla.Stats. §196.011, and Fla.Stats. §193.155 (Save our Homes annual limitation in value increases for homestead property). So presumably, the same exposure to mortgage lenders will apply for these other potential retroactive adjustments. The last one could be especially onerous since the potential tax adjustments if the Save our Homes cap is found not to apply to a parcel of real property can be significant.

Increasing the risks to mortgage lenders will likely result in higher costs to borrowers. Perhaps the Florida legislature may want to reorder the tax lien priorities for these retroactive liens.

Miami-Dade County v. Lansdowne Mortgage LLC, 2017 WL 4655060 (3rd DCA 2017)

Possession May Be Nine-Tenths of the Law - but Watch out for the Other One-Tenth

Prudential Insurance Company of America issued a life insurance policy on the life of Russell. Russell’s wife, Sherry, was the beneficiary. The policy contained $332,000 of term life coverage and $332,000 of accidental death coverage.

Russell died on June 24, 2015. On June 26, 2015, Sherry made a claim. On January 21, 2016, Prudential settled the life portion by paying $343,240.50 into a Prudential Alliance Account in Sherry’s name. This account was an interest-bearing account, and Sherry could draw against it by check or withdrawal.

On January 26, 2016, a grand jury indicted Sherry for the murder of Russell. Between January 29 and February 3, 2016, Sherry wrote three checks withdrawing $83,855.50 from the account. On February 8, 2016, Prudential notified Sherry that it had frozen the account at a time when it held $259,616.51.

On May 25, 2016, Prudential filed an interpleader complaint in federal court to join four potential beneficiaries under the policy, presumably due to concerns under a slayer statute that disqualifies a murderer from receiving insurance benefits payable because of his or her crime. It also sought to deposit into the court registry total death benefits of $591,564.90, plus applicable interest. Importantly, Prudential made no mention to the court of the $343,240.50 already paid to Sherry’s account nor Sherry’s withdrawals from that account. It also appears that Prudential did not give notice of the court registry petition to Sherry and/or other parties. The court granted Prudential’s motion.

About three months later, Sherry filed an answer and counterclaim. She alleged that Prudential illegally took $259,616.51 from her account and placed it into the court's registry without her permission. She also alleges fraud and breach of contract related to her agreement with Prudential to place the distributed term life benefits into an account with Prudential and for her to have access and control over the account.

The court found that Prudential violated Federal Rule of Civil Procedure 67 in seeking to deposit funds into the court registry without giving notice to every party. The court vacated its earlier order and directed the distribution to Prudential of the funds previously deposited.

The court granted Prudential’s interpleader request to join the other potential beneficiaries but only as to the $332,000 of accidental death benefits that had not been previously deposited to Sherry’s account. It denied the request as to the funds that Prudential removed from Sherry’s account since there is a question of whether Prudential rightfully possessed those funds.

Prudential sought the court to discharge it from the case and to enjoin the defendants from a further suit against it. The court declined to do that because Prudential is not a disinterested stakeholder, largely because Sherry has made a plausible counterclaim for conversion and fraud.

Prudential also sought judgment on the pleadings for the conversion claim. It claimed it did not commit the tort of conversion because it did not convert the funds for its own use. The court denied that aspect, when it found a potential benefit to Prudential in the deposit of the account funds - namely, the protection against liability if Sherry instead dissipated those funds and the other beneficiaries, would found to be entitled to receive the insurance proceeds. The court also noted that if Prudential had been transparent about how it obtained the account funds it sought to deposit, the court would never have allowed them to be deposited in the registry without the approval of the other parties. Importantly it noted that “Prudential now has possession of Sherry Bailey’s allegedly converted funds and it is potentially liable for conversion.” Thus, the court is allowing Sherry’s conversion claim to proceed.

The court also allowed Sherry’s fraud claim to proceed, based on her allegations that Prudential willfully removed money from her account in violation of state law, or in the alternative committed fraud when it remove money from the account after assuring her that the money in the account would be secure and her money.

The court also denied Prudential’s request for attorneys’ fees in the interpleader under precedent that provides unlike innocent stakeholders who unwittingly come into possession of a disputed asset, an insurance company can plan for interpleader as a regular cost of business.

By freezing Sherry’s account balance and paying it into the court registry without proper notice, Prudential’s self-help to avoid the risk of double liability may have opened itself up to liability for conversion, fraud, and breach of contract. Perhaps Prudential may ultimately be successful in fending off Sherry’s claims, but the trial court at this point indicated there might be merit to those claims.

Perhaps Prudential need not have taken any action in this regard. The court notes that under the Georgia statutes, O.C.G.A. § 33-24-41 provides: “Whenever the proceeds of . . . a life . . . insurance policy . . . become payable . . . and the insurer makes payment of the proceeds . . . the payments shall fully discharge the insurer from all claims under the policy or contract unless, before payment is made, the insurer has received . . . written notice . . . [that another] person claims to be entitled to the payment or some interest in the policy or contract.” Perhaps Prudential received the requisite written notice, or there are other bars to the protection of the statute, but if not, Prudential need not have frozen and effectively seized the account to protect itself from liability to the other beneficiaries. Interestingly, Prudential tried to use this statute as a defense to Sherry’s claims. The court noted, however, that the statute protects Prudential only against claims by another claimant to the policy proceeds – not the claims being made here by Sherry.

There is a kernel of trust in the bromide “possession is nine-tenths of the law.” While it may have seized possession of Sherry’s remaining proceeds, the other one-tenth of the law may end up costing it dearly.

Prudential Ins. Co. of Am. v. Bailey, 2017 U.S. Dist. LEXIS 161097 (USDC for So. Ga., September 29, 2017)

Specificity Needed in Powers of Attorney for Information Returns

Most practitioners are familiar with the Form 2848, Power of Attorney and Declaration of Representative. This form is signed by a taxpayer and designates an eligible person to represent the taxpayer before the IRS. IRS personnel will typically not provide information or otherwise discuss a taxpayer’s circumstances with a representative until they are provided with a Form 2848.

The Form requires a description of the matters for which the representation is authorized, including, where relevant, the type of tax involved, the federal tax form number, the specific year(s) or period(s) involved, and, in estate matters, the decedent's date of death. The portion of the form where this is done looks like this:

For a given year, a taxpayer will typically fill in the type of tax in the first column, Form 1040 if individual income tax is at issue in the second column, and the year at issue in the third (e.g., “2016”). You would think that if you filled in “1040,” then the IRS would be authorized to discuss with the representative all forms filed with or attached to the Form 1040. But you would be wrong, or at least so says the IRS.

In a recent Chief Counsel Advice, the IRS advised that such a Form 1040 would not be adequate to cover civil penalties relating to the nonfiling or incomplete filing of an international information return that was or should have been attached to the Form 1040. Thus, for example, the IRS will not discuss penalty issues with a representative relating to a Form 5471, Information Return of U.S. Persons With Respect To Certain Foreign Corporations, if the Form 2848 only listed Form Form 1120. The Advice is based on Reg. § 601.503(a)(6), which requires “a clear expression of the taxpayer's intention concerning the scope of the authority granted to the recognized representative.”

Is the IRS taking too narrow a reading? Maybe, but it is what is, and practitioners should endeavor to list all applicable information returns that may be relevant to the purpose of the Form 2848. It is not a disaster if the Form 2848 is too narrow since a new Form 2848 that covers the requisite forms can always be obtained and submitted. It is highly unlikely that a court will ever adjudicate this issue, so unless the IRS changes its mind it looks like taxpayers are stuck with this interpretation.

The Advice also notes that the designation of a Form 1040 or Form 1120 likewise does not give authorization to issues relating to information returns that are NOT attached to the income tax return.

What if the Form 2848 says “Form 1040” and the Description section says “Income, and all civil penalties?” In the past, this was allowable, but the Advice advises that changes in the instructions and the form require specificity such that discussions of tax, civil penalties, payment and interest can only be had as to the specific form listed.  What if the Description says “Form 1040, and all information returns required to be filed therewith?” No answer to that one yet.

Ding, Dong, the Witch is Dead

--Here lies the remains of the Code §2704 Proposed Regulations. RIP, 2016-2017--

As part of President Trump’s mandated review of federal regulations, the Secretary of Treasury has issued a report specifically recommending the elimination of the Code §2704 Proposed Regulations. While these regulations may reappear in revised form someday, it is highly unlikely that the current version will ever be finalized.

Of less general import, the Secretary also recommended the withdrawal of proposed regulations under Section 103 defining a political subdivision.

Other regulations were not targeted in their entirety – instead the Secretary recommended only partial revocation. These are:

-Final Regulations under Section 7602 on the Participation of a Person Described in Section 6103(n) in a Summons Interview

-Regulations under Section 707 and Section 752 on Treatment of Partnership Liabilities

-Final and Temporary Regulations under Section 385 on the Treatment of Certain Interests in Corporations as Stock or Indebtedness

Lastly, the Secretary recommended substantial revisions to these regulations:

-Final Regulations under Section 367 on the Treatment of Certain Transfers of Property to Foreign Corporations

-Temporary Regulations under Section 337(d) on Certain Transfers of Property to Regulated Investment Companies (RICs) and Real Estate Investment Trusts (REITs)

-Final Regulations under Section 987 on Income and Currency Gain or Loss With Respect to a Section 987 Qualified Business Unit

Second Report to the President on Identifying and Reducing Tax Regulatory Burdens, October 2, 2017

What Happens to Monetary Penalties When Convicted Defendant Dies with Pending Appeals?

This was the question in a recent Second Circuit Court of Appeals case. The defendant was convicted of securities fraud, mail and wire fraud and obstruction of justice, and entered into a negotiated guilty plea to criminal tax charges. Asset forfeiture, a fine, and a restitution order resulted, among other consequences. Bail bond had also been forfeited, due to violations of the bail order. At the time of death, appeals were pending on the criminal convictions.

The case involved the rare application of the abatement ab initio doctrine. This doctrine provides that when a convicted defendant dies while his direct appeal is pending, his death abates not only the appeal but also all proceedings in the prosecution from its inception.The effect is to leave the defendant as if he had never been indicted or convicted. This doctrine is rooted in the interests of finality and just punishment. Finality requires that a defendant not stand convicted without resolution of the merits of an appeal, and recognition of the purposes of just punishment leads to the conclusion that to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served.

The court addressed the impact of the ab initio doctrine to the following aspects of the case:

Convictions. The defendants convictions were abated, except those for which no appeal was pending. Since the defendant pled guilty to the tax evasion counts and waived his right to appeal, those did not abate.

Restitution. Other courts have split on the question whether restitution obligations abate at death, since it is usually more in the nature of making the victim whole and less about punishment. Those courts allowing abatement do so because restitution depends on a valid, final conviction, which does not occur due to the pending appeal. Others that hold that restitution does not abate do so because they consider restitution to be compensatory, not punitive in nature. The Second Circuit sided on the side of abatement at death and voided the restitution obligations. The opinion discussed whether if restitution had already been paid, then the payment and punishment would have been complete and irretreivable and thus could not be abated. However, it did not decide this issue since the restitution payments were stayed during the pendency of the appeal and thus had not been “paid.”.

Bail Bond Forfeiture. If the ab initio doctrine wipes out the conviction, is a bail bond forfeiture also eliminated? The court ruled no. The court indicated that the bail bond forfeiture was not part of the conviction but related to a violation of a civil contractual agreement – that is, it was a civil matter and nota criminal matter. Since the ab initio doctrine is a criminal doctrine, it does not apply to the bail bond forfeiture.

U.S. v. Brooks, 2017 WL 4158790 (2nd Cir. 2017)