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Attorney General Marty Jackley

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OFFICIAL OPINION NO. 71-45, Filing fees for Federal tax lien wherein the property subject to such lien is not designated. SDCL 44-7-8

STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

October 12, 1971

Jon Mattson
States Attorney, Lawrence County
Deadwood, South Dakota 57732

OFFICIAL OPINION NO. 71-45

Filing fees for Federal tax lien wherein the property subject to such lien is not designated. SDCL 44-7-8

Dear Mr. Mattson:

You have requested my official opinion in answer to the question as to what is the proper fee for the clerk of court to charge for filing a Federal tax lien, when the Federal Government officials do not designate whether they are claiming a lien upon real property only, personal property owner, or any designated property.

In 1967-68 AGR 400 my predecessor discussed the filing fees for Federal Tax liens at length. I advise you to read such opinion as a basic background to the problem. I have noted an error in such opinion in citing the Federal statutes involved, namely, that in the text reference is made to "16" USCA Sections 6321, 6322 and 6323, and the proper citing of the Federal statute appears to be 26 USCA Sections 6321,6322 and 6323. It should be noted that these statutes have not been changed since such opinion was written.

You will notice in the concluding paragraph that my predecessor urged the Federal authorities, in filing such Federal liens, to designate the extent of the property subject to such lien whenever such was possible, so that the South Dakota clerk of courts could properly determine the filing fee.

I agree with the premise of such prior opinion. However, as the question did not seem to be asked or answered, I would further clarify and affirm such opinion with this further qualification and direction.

Inasmuch as the Federal authorities may claim a lien upon realty and personal property in view of 26 USCA 6321, in the absence of any limiting declaration as to the extent to which such lien is claimed, it will be presumed that the lien is to affect both the real property and the tangible and in tangible personal property of such designated lien debtor.

In such a case, the proper fee for filing and indexing such notice of lien is $2.80 ($1.80 for the lien upon real property; $1.00 for the tax lien upon personal property.)

Respectfully submitted,

Gordon Mydland
Attorney General