§ 105-368. Procedure for attachment and garnishment. - North Carolina Statutes

§105‑368.  Procedure for attachment and garnishment.

(a)        Subject to theprovisions of G.S. 105‑356 governing the priority of the lien acquired,the tax collector may attach wages and other compensation, rents, bankdeposits, the proceeds of property subject to levy, or any other intangiblepersonal property, including property held in the Escheat Fund, in thecircumstances and to the extent prescribed in G.S. 105‑366(b), (c), and(d).

In the case of property duethe taxpayer or to become due to him within the current calendar year, theperson owing the property to the taxpayer or having the property in hispossession shall be liable for the taxes to the extent of the amount he owes orhas in his possession.  However, when wages or other compensation for personalservices is attached, the garnishee shall not pay to the tax collector morethan ten percent (10%) of such compensation for any one pay period.

(b)        To proceed underthis section, the tax collector shall serve or cause to be served upon thetaxpayer and the person owing or having in his possession the wages, rents,debts or other property sought to be attached a notice as provided by thissubsection.  The notice may be personally served by any deputy or employee ofthe tax collector or by any officer having authority to serve summonses, or maybe served in any manner provided in Rule 4 of the North Carolina Rules of CivilProcedure.  The notice shall contain:

(1)        The name of thetaxpayer, and if known his Social Security number or federal tax identificationnumber and his address.

(2)        The amount of thetaxes, penalties, interest, and costs (including the fees allowed by thissection) and the year or years for which the taxes were imposed.

(3)        The name of thetaxing unit or units by which the taxes were levied.

(4)        A brief descriptionof the property sought to be attached.

(5)        A copy of theapplicable law, that is, G.S. 105‑366 and 105‑368.  Noticesconcerning two or more taxpayers may be combined if they are to be served uponthe same garnishee, but the taxes, penalties, interest, and costs chargedagainst each taxpayer must be set forth separately.

(c)        If the garnisheehas no defense to offer or no setoff against the taxpayer, he shall within 10days after service of the notice answer it by sending to the tax collector byregistered or certified mail a statement to that effect, and if the amountdemanded by the tax collector is then due to the taxpayer or subject to hisdemand, the garnishee shall remit it to the tax collector with his statement;but if the amount due to the taxpayer or subject to his demand is to mature inthe future, the garnishee's statement shall set forth that fact, and the demandshall be paid to the tax collector upon maturity.  Any payment by the garnisheeunder the provisions of this subsection (c) shall completely satisfy anyliability therefor on his part to the taxpayer.

(d)        If the garnisheehas a defense or setoff against the taxpayer, he shall state it in writingunder oath, and, within 10 days after service of the garnishment notice, heshall send two copies of his statement to the tax collector by registered orcertified mail.  If the tax collector admits the defense or setoff, he shall soadvise the garnishee in writing within 10 days after receipt of the garnishee'sstatement, and the attachment or garnishment shall thereupon be discharged tothe amount required by the defense or setoff, and any amount attached orgarnished which is not affected by the defense or setoff shall be remitted tothe tax collector as provided in subsection (c), above.

If the tax collector does notadmit the defense or setoff, he shall set forth in writing his objectionsthereto and send a copy thereof to the garnishee within 10 days after receiptof the garnishee's statement, or within such further time as may be agreed onby the garnishee, and at the same time the tax collector shall file a copy ofthe notice of garnishment, a copy of the garnishee's statement, and a copy ofthe tax collector's objections thereto in the appropriate division of the GeneralCourt of Justice of the county in which the garnishee resides or does business,where the issues made shall be tried as in civil actions.

(e)        If the garnisheehas not responded to the notice of garnishment as required by subsections (c)and (d), above, within 15 days after service of the notice, the tax collectormay file in the appropriate division of the General Court of Justice of thecounty in which the garnishee resides a copy of the notice of garnishment,accompanied by a written statement that the garnishee has not responded theretoand a request for judgment, and the issues shall be tried as in civil actions.

(f)         The taxpayer mayraise any defenses to the attachment or garnishment that he may have in themanner provided in subsection (d), above, for the garnishee.

(g)        The fee for servinga notice of garnishment shall be the same as that charged in a civil action. If judgment is entered in favor of the taxing unit by default or after hearing,the garnishee shall become liable for the taxes, penalties, and interest due bythe taxpayer, plus the fees and costs of the action, but payment shall not berequired from amounts which are not to become due to the taxpayer until theyactually come due.  The garnishee may satisfy the judgment upon paying theamount thereof, and if he fails to do so, execution may issue as provided bylaw.  From any judgment or order entered, either the taxing unit or thegarnishee may appeal as provided by law.  If, before or after judgment,adequate security is filed for the payment of the taxes, penalties, interest,and costs, the tax collector may release the attachment or garnishment, orexecution may be stayed at the request of the tax collector pending appeal, butthe final judgment shall be paid or enforced as above provided.  If judgment isrendered against the taxing unit, it shall pay the fees and costs of theaction.  All fees collected by officers shall be disposed of in the same manneras other fees collected by such officers.

(h)        Tax collectors mayproceed against the wages, salary, or other compensation of officials andemployees of this State and its agencies, instrumentalities, and politicalsubdivisions in the manner provided in this section.  If the taxpayer is anemployee of the State, the notice of attachment shall be served upon him andupon the head or chief fiscal officer of the department, agency,instrumentality, or institution by which he is employed.  If the taxpayer is anemployee of a political subdivision of the State (county, municipality, etc.), thenotice of attachment shall be served upon him and upon the officer charged withmaking up the payrolls of the political subdivision by which he is employed. All deductions from the wages or salary of a taxpayer made pursuant to thissubsection (h) and remitted to the tax collector shall, pro tanto, constitute asatisfaction of the salary or wages due the taxpayer.

(i)         (1)        Anyperson who, after written demand therefor, refuses to give the tax collector orassessor a list of the names and addresses of all of his employees who may beliable for taxes, shall be guilty of a Class 1 misdemeanor.

(2)        Any tax collector orassessor who receives, upon his written demand, any list of employees may notrelease or furnish that list or any copy thereof, or disclose any name orinformation thereon, to any other person, and may not use that list in anymanner or for any purpose not directly related to and in furtherance of thecollection and foreclosure of taxes.  Any tax collector or assessor whoviolates or allows the violation of this subdivision (i)(2) shall be guilty ofa Class 1 misdemeanor. (1939, c. 310, s. 1713; 1951, c. 1141, s. 1; 1955, cc.1263, 1264; 1957, c. 1414, ss. 2‑4; 1969, c. 305, c. 1029, s. 1; 1971, c.806, s. 1; 1979, c. 103, ss. 3, 4; 1979, 2nd Sess., c. 1085, s. 2; 1981, c. 76,s. 1; 1987, c. 45, s. 1; 1989, c. 580, s. 2; 1993, c. 539, s. 724; 1994, Ex.Sess., c. 24, s. 14(c).)