Franchise Tax Board Liens – Part One

The FTB is authorized to impose liens on taxpayer's property to recover tax debts. A lien is a charge on taxpayer's personal or real property to satisfy tax debt or duty. Once lien encumbers the property, taxpayer generally can not sell it or or transfer through escrow as long as lien exists. FTB files liens if a non-compliant taxpayer or business entity has a delinquent liability. California Revenue and Taxation Code Section 19221 provides that if a tax liability is not paid at the time that it becomes “due and payable” and due process is served; an enforceable state tax lien is created for the amount of the tax liability. Since the lien arises by operation of law, it is called a “statutory lien.” Revenue and Taxation Code Section 19221 also defines when a tax liability becomes “due and payable” for purposes of creating a state tax lien also known as the statutory lien date. The conditions vary for different types of FTB assessments. The general rule is that state tax lien arises on the date the amount is established on the records of FTB (or other department, like EDD for the amount of any liability disclosed on a return filed before the date payment is due and after payment is due). The state lien can also arise on the date a Jeopardy Assessment notice is mailed to taxpayer for issued amounts determined by the Jeopardy Assessment.

Note: the Franchise Tax Board, Internal Revenue Service, Board of Equalization, and the Employment Development Department have an agreement to compare statutory lien dates to determine priority for payment on competing liens. It means that if liens by several departments are imposed on taxpayers property, the first lien to be satisfied will be lien with the earliest date. The remaining property will be used to satisfy second lien with a later date, and so on. Government Code section 7170.5 provides that between competing state tax liens, or as between a state tax lien and a federal lien, the lien that first comes into existence (based on the statutory lien date) has priority over the lien that later comes into existence. The priority is not affected by the recording or filing of a Notice of State Tax Lien (NSTL) by FTB.

Here are methods to determine major statutory lien dates:

-For returns self-assessed by the taxpayer, it is the posting date of return in the respective department (FTB, EDD, Board of Equalization).

- For a Notice of Proposed Assessment by FTB – the date assessment becomes final (the legal effective date). Usually it is 60 days after the issuance of the Notice, unless it is protested by taxpayer.

- For a protested Notice of Proposed Assessment – 30 days after the Notice of Action is issued.

- For Jeopardy Assessments – the date the notice is mailed or issued.