1 presented by m. kim anderson robertson stromberg pedersen llp non-title tax enforcement in...

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Presented by M. Kim AndersonRobertson Stromberg Pedersen LLP

Non-Title Tax Enforcement

In Saskatchewan

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Tax Enforcement

• Method of choice – title proceedings

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Tax Enforcement

• Method of choice – title proceedings

• Other methods available and may be preferable to title proceedings

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Non-Title Proceedings

Why take non-title Proceedings?

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• Depressed resale market limits recovery on taxes

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• Resale unlikely – will deplete tax base

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• Potential environmental problems with land

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• Potential environmental problems with land

• Delay involved in taking title proceedings

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Prerequisites to Enforcement

Current taxes or only arrears?

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• Some remedies only permit collection of arrears

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• Some remedies permit collection of current taxes

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• Some remedies permit collection of current taxes

• If put to the expense of collecting arrears, why not collect current taxes as well?

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Taxes Due and Owing?

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• If collecting current taxes, be sure they are owing

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• No express provision in Act

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• Property taxes due upon mailing of notices

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• Ensure you can prove confirmation of assessment roll

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• Ensure you can prove confirmation of assessment roll

• Appeal pending – must wait appeal and confirmation on appealed properties only

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Items added to taxes

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• Be sure you are entitled to collect

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• Clear statutory authority to add to taxes

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• Enabling bylaws and resolutions all passed

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• Costs are properly documented

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• Costs are properly documented

• Necessary time frame has passed

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Demand for Payment?

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Demand for Payment?

• Not legally required

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Demand for Payment?


• May result in taxes being paid

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Demand for Payment?


• May result in taxes being paid

• Weigh advantage of having demand come from legal counsel

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Suing the Taxpayer

When should we sue?

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Suing the Taxpayer

When should we sue?

• Taxpayer has funds, but simply won’t pay

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Suing the Taxpayer

When should we sue?

• Taxpayer has funds, but simply won’t pay

• Don’t want to deplete dwindling tax base

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Suing the Taxpayer

Authority to Sue

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Suing the Taxpayer

Authority to Sue

• s. 320 - taxes due on any property are collectable by action in priority to every claim except that of the Crown

• s. 275 - taxes due to a municipality are collectable by action in priority to every claim except that of the Crown

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Suing the Taxpayer

Which Court

• Under $20,000.00 can go to Provincial Court

• Otherwise go to Queen’s Bench

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Suing the Taxpayer

Why choose Provincial Court?

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Suing the Taxpayer


• Circuit court location may be nearby

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Suing the Taxpayer


• Circuit court location may be nearby

• Can present case without assistance of a lawyer

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Suing the Taxpayer

Why choose Queen’s Bench?

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Suing the Taxpayer


• May be able to obtain default judgment

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Suing the Taxpayer


• May be able to obtain default judgment

• Use of summary procedure may limit need to attend court

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Suing the Taxpayer

Getting Underway in Provincial Court

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Suing the Taxpayer


• Prepare summary of claim with copies of all supporting documents

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Suing the Taxpayer


• Prepare summary of claim with copies of all supporting documents, and

• Transmit to nearest Provincial Court with a request to issue a summons at the nearest circuit court location

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Suing the Taxpayer



• Transmit to nearest Provincial Court with a request to issue a summons at the nearest circuit court location, or

• Take to nearest Provincial Court office and meet with clerk

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Suing the Taxpayer



• Transmit to nearest Provincial Court with a request to issue a summons at the nearest circuit court location, or

• Take to nearest Provincial Court office and meet with clerk

• Issue Summons and serve on Defendant

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Suing the Taxpayer

Provincial Court - Service of Documents

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Suing the Taxpayer


• Must serve at least ten days before return date

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Suing the Taxpayer



• May try to serve by registered mail, but taxpayer must sign acknowlegment card and return it

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Suing the Taxpayer



• May try to serve by registered mail, but taxpayer must sign acknowlegment card and return it

• Best to serve in person (use process server if you prefer)

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Suing the Taxpayer

Provincial Court - Procedure

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Suing the Taxpayer


• Case management conference usually held

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Suing the Taxpayer



• Defendant does not attend – judgment entered

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Suing the Taxpayer




• Defendant does attend – “privileged” settlement discussion with a judge

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Suing the Taxpayer




• Defendant does attend – “privileged” settlement discussion with a judge

• No settlement – trial date set

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Suing the Taxpayer

Provincial Court - Trial Preparation

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Suing the Taxpayer


• Prepare for possible objections by taxpayer

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Suing the Taxpayer



• Claiming the wrong amount

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Suing the Taxpayer




• Assessment is incorrect

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Suing the Taxpayer




• Assessment is incorrect

• Didn’t get notice

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Suing the Taxpayer

Provincial Court - Document Preparation

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Suing the Taxpayer


• Prepare certified copy of tax roll - s. 277 states it is proof of taxes owing

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Suing the Taxpayer



• Prepare certified copy of any ledger account associated with claim

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Suing the Taxpayer




• Prepare certified copy of assessment roll and of confirmation

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Suing the Taxpayer




• Prepare certified copy of assessment roll and of confirmation

• Prepare certified copy of tax notice and certificate of mailing under s. 258

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Suing the Taxpayer


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Suing the Taxpayer


• Prepare copy of any relevant correspondence

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Suing the Taxpayer



• Review documents so you are fully familiar

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Suing the Taxpayer



• Review documents so you are fully familiar

• Prepare three copies of each – one for each party and one for the Court

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Suing the Taxpayer

Provincial Court - Trial Procedure

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Suing the Taxpayer


• Appear early – advise the clerk you are present

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Suing the Taxpayer



• Tell the judge the nature of your claim and the amount claimed

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Suing the Taxpayer




• Take the stand and present the certified copy of the tax roll and any associated ledger account.

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Suing the Taxpayer




• Take the stand and present the certified copy of the tax roll and any associated ledger account.

• Testify positively as to the amount owing

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Suing the Taxpayer

Provincial Court - Resources

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Suing the Taxpayer


• Review the information at www.sasklawcourts.ca

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Suing the Taxpayer



• Consider having legal counsel prepare and instruct you the first time you sue for taxes with a view to learning the “how-tos”

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Suing the Taxpayer



• Consider having legal counsel prepare and instruct you the first time you sue for taxes with a view to learning the “how-tos”

• If your comfort level requires – use your legal counsel

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Suing the Taxpayer

Queen’ Bench - Procedure

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Suing the Taxpayer


• No Defence filed within 20 days – enter default judgment

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Suing the Taxpayer



• Defence entered – proceed to meditation session

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Suing the Taxpayer




• Apply for summary judgment

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Suing the Taxpayer




• Apply for summary judgment

• If summary judgment not granted, prepare documents and move to trial

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Suing the Taxpayer

Judgment

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Suing the Taxpayer

Judgment

• 30 days after judgment granted in Provincial Court – present to Queen’s Bench for Registration

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Suing the Taxpayer

Judgment


• No registration required if judgment granted in Queen’s Bench

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Suing the Taxpayer

Judgment


• No registration required if judgment granted in Queen’s Bench

• Appeal will Stay Judgment

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Suing the Taxpayer

Enforcement

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Suing the Taxpayer

Enforcement

• Garnishee Summons – attach debt owing or wages

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Suing the Taxpayer

Enforcement


• Seizure under Writ of Execution

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Suing the Taxpayer

Enforcement


• Seizure under Writ of Execution

• Process may change soon – The Enforcement of Money Judgments Act

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Direct Collection from Tenant

• s. 321(1) – Tenant occupies property on which taxes are owing – direct collection permitted

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• Send notice to owner of intention to proceed

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• After 14 days, send notice to tenant

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• Municipality may pay for heat, insurance and other items.

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• Municipality may pay for heat, insurance and other items.

• Tenant does not pay – municipality may distrain on tenant (does not apply to residential tenancy)

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Recovery from Insurance Proceeds

• s. 322(1) – improvements are damaged or destroyed and taxes unpaid – may collect from insurer

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• Send notice to insurer and preserve proof of service

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• Payment not made – may bring lawsuit against insurer

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• Claim only sustainable for amount not used to rebuild or repair

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• Claim only sustainable for amount not used to rebuild or repair

• Claim likely not sustainable against contents insurance, and likely cannot be made for taxes on land (only improvements)

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Distress

• s. 325 – taxes unpaid for 30 days after mailing of tax notice – municipality may issue warrant to bailiff

• S. 333 – may distrain for licence fees if unpaid for 14 days

• If there is reason to believe the goods to be seized will be removed from the municipality before 30/14 days expire, may apply to a justice of the peace for an order authorizing earlier seizure

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Distress

Under s. 324 – the municipality may distrain on the following:

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Distress


• Goods belonging to the taxpayer, wherever those goods may be found within the municipality;

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Distress



• Goods in the possession of the taxpayer, wherever those goods may be found within the municipality; and

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Distress



• Goods in the possession of the taxpayer, wherever those goods may be found within the municipality; and

• Goods found on the property with respect to which the tax has been levied and that are owned by or in the possession of any occupant of the premises, other than a tenant.

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Distress

The municipality may not distrain on the following:

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Distress


• Goods that are the subject of a valid and subsisting lien in favor of a vendor (the interest of the taxpayer, or other occupant may still be seized subject to the vendor's interest)

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Distress



• The vendor's or lessor's share of a crop

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Distress




• An animal not belonging to the taxpayer or to any occupant of the premises (unless the person is related)

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Distress




• An animal not belonging to the taxpayer or to any occupant of the premises (unless the person is related)

• Goods in the possession of the taxpayer only for storing and warehousing, or for sale on commission

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Distress

Priorities –

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Distress

Priorities -

• Municipal distress appears to have priority over a “chattel mortgage”

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Distress

Priorities -


• Municipal distress appears to be subject to the priority of a “conditional sale”

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Distress

Priorities -



• Municipal distress has priority over distress by the landlord

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Distress

Priorities -



• Municipal distress has priority over distress by the landlord

• Search the PPR prior to seizing

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Distress

Notice and Sale

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Distress

Notice and Sale

• Must provide written notice of sale

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Distress

Notice and Sale


• Sale governed by s. 330

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Distress

Notice and Sale:



• Costs recoverable only on tariff under The Distress Act

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Distress

Notice and Sale:



• Costs recoverable only on tariff under The Distress Act

• May release part of goods without compromising claim

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Distress

Following Hidden Goods:

• If goods have been fraudulently and clandstinely removed, may follow, break and enter in order to seize.

• Very technical remedy – get legal advice

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Goods in Hands of Others

• s. 355 – applies where goods have been seized by sheriff, bailiff, liquidator, receiver, trustee in bankruptcy

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• applies where goods or proceeds still in hands of third party

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• Municipality may serve written notice

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• Municipality may serve written notice

• Notice binds goods and proceeds – amount of taxes to be paid in priority to other claims except for fees of sheriff or bailiff, and amounts owing to the Crown

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Collection – Oil or Gas Wells

• s. 355 – tax unpaid after year end on resource production equipment of an oil or gas well – can collect from anyone who purchases oil or gas originating on that well

• Send written notice to purchaser and preserve proof of service

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Removed Improvements

• s. 356 – tax unpaid on land or improvements located thereon – improvements not to be removed from the municipality or demolished

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• If removed, may locate the improvement, sever from land and restore to its former location

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• If removed, may locate the improvement, sever from land and restore to its former location

• Alternatively, may distrain on improvement and sell for unpaid taxes and costs

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Sharing Expenses

• Subject to express limitations, may recover costs

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Sharing Expenses


• s. 309– if costs are not recoverable in full, reasonable costs may be apportioned between municipality and other taxing authorities

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Sharing Expenses



• Apportionment to be on a pro-rata basis

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Sharing Expenses



• Apportionment to be on a pro-rata basis

• Cannot include amounts paid to compensate municipal employee

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Non-Title Enforcement

• Select your remedy carefully

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• Ensure that the sum sought is accurate

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• Satisfy pre-conditions

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• Satisfy pre-conditions

• Prepare necessary documentation

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For information on non-title proceedings or other muncipal matters, contact M. Kim Anderson at [email protected]

1 presented by m. kim anderson robertson stromberg pedersen llp non-title tax enforcement in...

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enforcement current

taxes resale unlikely

nontitle proceedings

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