2000 Conn. Super. Ct. 13734 | Conn. Super. Ct. | 2000
The present action was filed on August 18, 1998. The plaintiff seeks to foreclose two tax liens on the property. The two liens arose from the tax lists of October 1, 1993 and October 1, 1994, respectively. Certificates continuing the two tax liens were filed on May 10, 1995 and May 21, 1996, respectively. The defendant or its predecessors in interest made various payments on the outstanding taxes on the property. A March 7, 1996 payment in the amount of $45,558.78 was applied to the outstanding taxes, interest and charges from the 1989 and 1990 lists. A September 16, 1997 payment in the amount of $37,500 was applied to the outstanding taxes, interest and charges from the 1990 and 1991 lists. A February 27, 1998 payment in the amount of $50,000 was applied to the outstanding taxes, interest and charges from the 1991 and 1992 lists. Finally, a May 1, 1998 payment in the amount of $20,000 was applied to the outstanding taxes, interest and charges from the 1992 list and to a portion of the interest arising from the 1993 list. According to the plaintiff's affidavit of debt, there is still a total of $92,611.16 owing on the taxes, interest and fees arising from the 1993 and 1994 lists.
It is well-established that a motion to dismiss is the proper vehicle to raise the issue of a prior pending action. Halpern v. Board ofEducation,
CT Page 13737 "Each tax payment made to a municipality for taxes due on any specific property shall be applied by the municipality toward payment of the oldest outstanding tax levied on such property with the interest thereon; provided, if there is litigation pending between the municipality and the party liable for the oldest outstanding tax on such property concerning such oldest outstanding tax, such tax payment shall only be applied to the oldest outstanding tax on such property which is not involved in such litigation, provided this section shall not apply to tax payments tendered by third parties pursuant to contract or by operation of law."
As a preliminary matter, the defendant argues that the plaintiff should not be permitted to argue that the payments were properly applied to earlier taxes. According to the defendant, the plaintiff's application of the payments to the delinquent taxes from years prior to 1993 should have been placed in issue as a matter in avoidance of the defendant's special defense pursuant to Practice Book §
Because of the vagueness of the sixth special defense, however, the plaintiff could not be expected to plead additional facts relating to the correct application of the payments. The defendant did not plead any specific facts as to the amount or date of the payments, and the defense was therefore insufficient to fairly apprise the plaintiff of the exact nature of the defendant's claim. See Practice Book §§
The defendant argues that the payments made between March 7, 1996 and May 1, 1998 were not properly applied to the taxes, interest and fees arising from the 1989 to 1992 assessments, because the defendant is not personally liable for any taxes assessed before it owned the property. According to the defendant, the plaintiff's failure to provide evidence of valid tax liens for the years between 1989 and 1992 precludes a conclusion that the payments were properly applied to those years. General Statutes §
The defendant also cites to the exception in §
"When acting as a receiver, the following provisions shall apply with respect to the [FDIC]: CT Page 13739
"(1) The [FDIC] . . . shall be exempt from all taxation imposed by any State, county, municipality, or local taxing authority, except that any real property of the [FDIC] shall be subject to State, territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed, except that, notwithstanding the failure of any person to challenge an assessment under State law of such property's value, such value, and the tax thereon, shall be determined as of the period for which such tax is imposed.
"(2) No property of the [FDIC] shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the [FDIC], nor shall any involuntary lien attach to the property of the [FDIC]."
The defendant argues that because the FDIC held a mortgage interest in the property on May 10, 1995, the filing of the certificate continuing the tax lien was invalid. It is not clear from the language of the statute whether the phrase "property of the [FDIC]" includes property in which the FDIC holds a mortgage lien. In Old Bridge Owners CooperativeCorp. v. Township of Old Bridge,
The Old Bridge decision, however, is contrary to the policy of the FDIC itself. The official policy of the FDIC is that "a lien for taxes and interest may attach to property in which the Corporation has a lien or security interest, but the Corporation will not permit a lien or security interest held by it to be eliminated by foreclosure without the Corporation's consent." FDIC Statement of Policy Regarding the Payment of State and Local Property Taxes,
Our Supreme Court recently elaborated at length on the deference to be given to federal agencies' interpretations of federal statutes:
"Although it is not controlling, the interpretation of a federal agency is entitled to substantial deference. Chevron U.S.A., inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 ,844-45 ,104 S. Ct. 2778 ,81 L. Ed. 2d 694 , reh. denied,468 U.S. 1227 ,105 S. Ct. 28 ,82 L. Ed. 2d 921 (1984) (Chevron). The Chevron analysis requires us first to determine CT Page 13740 "whether the intent of Congress is clear as to the precise question at issue. . . . If, by employing traditional tools of statutory construction . . . we determine that Congress' intent is clear, that is the end of the matter. . . ." (Citations omitted; internal quotation marks omitted.) Regions Hospital v. Shalala,522 U.S. 448 ,457 ,118 S. Ct. 909 ,139 L. Ed. 2d 895 (1998); Chevron, supra, 842-43. "If a statute's meaning is plain, the [agency that administers the program] and reviewing courts must give effect to the unambiguously expressed intent of Congress.' (Internal quotation marks omitted.) Holly Farms Corp. v. National Labor Relations Board,517 U.S. 392 ,398 ,116 S. Ct. 1396 ,134 L. Ed. 2d 593 (1996); Chevron, supra, 842-43. This is step one review under Chevron."Step two review under Chevron informs us that: "[i]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. . . . If the agency's reading fills a gap or defines a term in a reasonable way in light of [Congressional] design, we give that reading controlling weight, even if it is not the answer the court would have reached if the question initially had arisen in a judicial proceeding.' (Citation omitted; internal quotation marks omitted.) Regions Hospital v. Shalala, supra, 522 U.S. 457; Chevron, supra, 467 U.S. 843. "[W]e must sustain the [agency's] approach so long as it is based on a permissible construction of the statute.' (Internal quotation marks omitted.) Auer v. Robbins,
519 U.S. 452 ,457 ,117 S. Ct. 905 ,137 L. Ed. 2d 79 (1997); Chevron, supra, 843. "When the legislative prescription is not free from ambiguity . . . [c]ourts . . . must respect the judgment of the agency empowered to apply the law to varying fact patterns . . . even if the issue with nearly equal reason [might] be resolved one way rather than another. . . .' (Citations omitted; internal quotation marks omitted.) Holly Farms Corp. v. National Labor Relations Board, supra, 517 U.S. 398-99."
Bell Atlantic Mobile, Inc. v. Dept. of Public Utility Control,
Because
Furthermore, a recent opinion of this court likewise concluded that a tax lien may attach to real property despite a mortgage lien held by the FDIC as receiver. In 37 Huntington Street v. Hartford, Superior Court, judicial district of Hartford, Docket No. 590607 (February 10, 2000,Wagner, J.T.R.) (26 Conn.L.Rptr. 525-27), the court noted the Supreme Court's statement in Red Rooster Construction Co. v. River Associates,Inc.,
Because a tax lien attaches not to a mortgage interest but to the real property itself and because of the official policy of the FDIC, the court agrees with the plaintiff that
The issue of whether 18% percent interest under General Statutes §
"Whether a charge constitutes a penalty for purposes of § 1825(b)(3) is a federal question informed by state law. . . . The Superior Court of Connecticut has construed §
12-146 and held that assessments of the kind at issue in this case are not in the nature of penalties because, among other reasons, the 80% rate `was imposed primarily to ensure that municipalities receive fair compensation for delayed payment of taxes in light of fluctuating market rates, inflation, and collection costs.' [Monroe v. 837 Main Street Corp.,45 Conn. Super. Ct. 283 ,292 (1997)]."Informed by state law, we are inclined to agree with the [Monroe] court's conclusion.
"The purpose of a penalty (in the present context) is to serve as an incentive to prompt payment. . . . Obviously, a percentage surcharge in any amount on an unpaid obligation can be characterized as an inducement to payment, and the higher the surcharge, the greater the inducement. In this case, it is safe to say that the assessment is not a penalty to the extent, if any, that it compensates the [municipality] for the loss of use of money caused by nonpayment."
The court went on to conclude that the burden was on the landowner to prove that the 18% interest operated, at least in part, as a penalty. Because the landowner failed to offer evidence to that effect, the court held that it was liable to pay the charge in full. Id. Similarly, the burden in the present case is on the defendant to prove its special defense. The defendant, however, has offered no evidence showing to what extent the 18% interest operates to induce payment, rather than to CT Page 13743 compensate the plaintiff. Consequently,
Although the defendant has not specified which of the eight provisions of
Furthermore, the defendant has cited to no case authority for the proposition that a tax lien may not be filed against property subject to a mortgage when the mortgage guarantor has filed for bankruptcy. None of the cases upon which the defendant relies is on point. The defendant cites In re St. Amamt,
The defendant also relies on a Connecticut case, First ConstitutionBank v. Flanders, Superior Court, judicial district of New Haven, Docket No. 3101 64 (March 22, 1995, Celotto, S.T.R.) (
"[T]he St. Amant court determined that the passing of a judgment lienor's law day constituted a violation of the stay imposed pursuant to §§ 362(a)(2), (3) and (4). In the present case, although §§ 362(a) (3) and (4) do not stay the passing of Flanders' law day, the passing of Flanders' law day is "the enforcement against the debtor . . . of a judgment obtained before the commencement' of Flanders' bankruptcy case pursuant to § 362(a)(2). Hence the passing of Flanders' law day was stayed by his chapter 13 bankruptcy petition."
Similarly, in the present case § 362(a)(3) and (4) are inapplicable because the bankruptcy debtors did not have an ownership interest in the property. Furthermore, the defendant in the present case is challenging the creation and filing of tax liens rather than a mortgage foreclosure action. Unlike the Flanders case, therefore,
Hendel, J.