The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)
STATE OF MICHIGAN
JENNIFER M. GRANHOLM, ATTORNEY GENERAL
RECORDS AND RECORDATION:
REGISTER OF DEEDS:
Register of deeds duty to accept and file notice of federal tax lien
A county register of deeds must accept and file a notice of federal tax lien when submitted by the United States Internal Revenue Service in the form specified by the Secretary of the Treasury and accompanied by the requisite filing fee.
Opinion No. 7067
November 29, 2000
Honorable Larry DeVuyst
You have asked whether a county register of deeds must accept and file a notice of federal tax lien when submitted by the United States Internal Revenue Service and accompanied by the requisite filing fee.
Const 1963, art 7, § 4, provides for the office of county register of deeds "whose duties and powers shall be provided by law." The powers and duties assigned to this office are ministerial, not discretionary, in nature. Youngblood v US, 141 F2d 912, 913 (CA 6, 1944). The county register of deeds must accept for filing or recording all deeds or other instruments affecting title to real or personal property for which the law provides as long as (i) the instruments satisfy the legal requirements for form and (ii) the requisite filing or recording fees are paid. Van Husan v Heames, 96 Mich 504; 56 NW 22 (1893).
The Internal Revenue Code, 26 USC 6323(f)(1), requires that the Internal Revenue Service (IRS) file its notices of tax lien in a state (county or local government) office designated by state law. If no such office is authorized by the state, these notices must be filed with the clerk of the federal district court for the judicial district in which the property subject to the lien is situated.
In Michigan, the duty of a county register of deeds to accept and file a notice of federal tax lien when submitted by federal tax collecting officers was first imposed by 1923 PA 104. That act required acceptance and filing of a federal tax lien if the appropriate registration fee was paid and the notice of lien recited the name and address of the taxpayer, and the amount and nature of the tax assessment. 1925 PA 13 amended 1923 PA 104 to require that the notice of federal tax lien contain "a description of the land upon which a lien is claimed . . . ." Section 1.
In 1 OAG, 1955, No 1965, p 96 (March 4, 1955), the Attorney General concluded that a county register of deeds was not required to accept for filing a federal notice of tax lien that failed to contain, as required by Michigan statute, a description of real property to which the federal tax lien was intended to apply. That opinion relied upon Youngblood v US, supra, which held that the requirement for the inclusion of a property description in the notice of tax lien was reasonable. In US v Union Central Life Ins Co, 368 US 291, 296; 82 S Ct 349; 7 L Ed 2d 294 (1961), however, the Supreme Court disagreed with Youngblood and held that only Congress, not the states themselves, could authorize the states to prescribe requirements for the notice of tax lien form and that Congress provided no such authority.1 Since OAG, No 1965, supra, relied on Youngblood, supra, and Youngblood is no longer the law, the opinion reached in OAG, No 1965 is no longer valid either.
1923 PA 104 was repealed by 1956 PA 107, which adopted the Uniform Federal Tax Lien Registration Act. 1956 PA 107 did not require that the notice of federal tax lien contain a description of real property to which the tax lien was intended to apply. 1956 PA 107, section 2, merely imposed a duty upon a county register of deeds, upon presentation of a notice of federal tax lien plus the requisite filing fee, to list the taxpayer's name and address, and the amount of the tax, in an alphabetical federal tax lien index.
Later, the Legislature adopted two uniform federal tax lien registration acts, namely 1967 PA 162 and 1983 PA 102. The current statute, the Uniform Federal Lien Registration Act (UFLRA), 1983 PA 102, MCL 211.661 et seq; MSA 7.753(1) et seq, requires a county register of deeds to accept notices of federal liens and to file them alphabetically or enter them in an alphabetical index "showing the name and address of the person named in the notice, the date and time of receipt, the title and address of the official or entity certifying the lien, and the total amount appearing on the notice of lien." Section 5(1).2
Certification by the appropriate federal officer responsible for filing notices of federal liens "entitles the notices . . . to be filed and any other attestation, certification or acknowledgment is not necessary" (section 4), upon payment of the appropriate fee for filing and indexing the notice of lien. Section 6(1)(a). Where a statutory duty is clearly expressed as this duty is, it must be obeyed as written by the Legislature. Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
Congress has addressed the form of the notice of federal tax lien by providing that "[t]he form and content of the notice [of lien] shall be prescribed by the Secretary of the Treasury. Such notice shall be valid notwithstanding any other provision of law regarding the form or content of a notice of lien." 26 USC 6323(f)(3). The current form of notice used by the Treasury Secretary bears the signature, written, digitized or electronic, of a federal officer or other person authorized by law to "sign" the notice. The notice recites that the United States asserts a lien against the property of the named taxpayer. Nothing more is required. A county register of deeds is not required or authorized by law to determine or require proof of the authority of the signator to sign the notices. A county register of deeds has neither the duty nor the authority to judge the legality, accuracy or legal force of instruments offered for filing or recording. OAG, 1928-1930, pp 884, 885 (June 11, 1930). A register of deeds must record documents which comply with statutory requirements, whenever the documents are offered for recording, together with tender of the requisite recording fee. 1 OAG, 1955, No 2065, p 576 (November 1, 1955).3
It is my opinion, therefore, that a county register of deeds must accept and file a notice of federal tax lien when submitted by the United States Internal Revenue Service in the form specified by the Secretary of the Treasury and accompanied by the requisite filing fee.
JENNIFER M. GRANHOLM
1 The form of the notice of tax lien utilized by the IRS has not historically, nor does it currently, include descriptions of real property.
2 A separate file or index of federal liens is no longer required. The index maintained by the register of deeds must be alphabetic and may be computerized. MCL 565.28; MSA 26.546.
3 However, a person who encumbers property through the recording of a document without lawful cause with intent to harass or intimidate is subject to both civil damages and criminal penalties. MCL 600.2907a; MSA 27A.2907a.