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Town of Hudson v. Martin-Kahill Ford Lincoln Mercury Inc.

Filed: October 20, 1981.

TOWN OF HUDSON
v.
MARTIN-KAHILL FORD LINCOLN MERCURY, INC. AND NORTH CAROLINA NATIONAL BANK



Appeal by defendant from Owens, Judge. Judgment entered 11 February 1981 in Superior Court, Caldwell County. Heard in the Court of Appeals 25 September 1981.

Martin (Harry C.), Judge. Judges Martin (Robert M.) and Becton concur.

Martin

It is Martin-Kahill's contention that the garnishment of its bank account at North Carolina National Bank, without prior notice or hearing, violated its due process and equal protection rights as guaranteed by the constitutions of the United States and the state of North Carolina.

Defendant has cited numerous federal cases as authority for the proposition that a fundamental requirement of due process in any proceeding is "notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 313, 94 L. Ed. 865, 873 (1950). We are also cited to that line of cases which holds that to meet due process requirements a hearing must be afforded before a citizen is deprived of any significant property interest. North Georgia Finishing v. Di-Chem, 419 U.S. 601, 42 L. Ed. 2d 751 (1975); Mitchell v. W.T. Grant Co., 416 U.S. 600, 40 L. Ed. 2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556 (1972); Sniadach v. Family Finance Corp., 395 U.S. 337, 23 L. Ed. 2d 349 (1969).

However, under certain circumstances federal and state statutes permitting the seizure of property without a prior hearing have been held constitutional. Mackey v. Montrym, 443 U.S. 1, 61 L. Ed. 2d 321 (1979); Dixon v. Love, 431 U.S. 105, 52 L. Ed. 2d 172 (1977); Commissioner v. Shapiro, 424 U.S. 614, 47 L. Ed. 2d 278 (1976); Mitchell, supra; Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 75 L. Ed. 1289 (1930); Enterprises, Inc. v. Dept. of Motor Vehicles, 290 N.C. 450, 226 S.E.2d 336 (1976); Kirkpatrick v. Currie, Comr. of Revenue, 250 N.C. 213, 108 S.E.2d 209 (1959); Properties, Inc. v. Ko-Ko Mart, Inc., 28 N.C. App. 532, 222 S.E.2d 267, disc. rev. denied, 289 N.C. 615 (1976). These cases distinguish themselves because the statutory procedures afforded adequate safeguards when considered in the context of the governmental interests involved. Thus, in resolving any claimed violation of procedural due process, a balance must be struck between the respective interests of the individual and the governmental entity seeking the remedy. Goss v. Lopez, 419 U.S. 565, 42 L. Ed. 2d 725 (1975). Our cases have consistently recognized that the government's interest in collecting its revenues weighs heavily in favor of summary proceedings. Shapiro, supra; Fuentes, supra; Phillips, supra.

Focusing our attention now on the present case, we note initially that the statutory scheme provided under N.C.G.S. 105-366 and -368 is designed, in pertinent part, to assist local tax collectors in the recovery of property taxes due as a result of bulk sale transactions. These provisions outline in detail the procedures to be followed by buyers, sellers, and the taxing authority:

§ 105-366. Remedies against personal property. -- (a) . . . All tax collectors shall have authority to proceed against personal property to enforce the collection of taxes as provided in this section and in G.S. 105-367 and 105-368. . . .

(b) Remedies after Taxes are Due. -- [T]he tax collector may levy upon and sell or attach the following property for failure to pay taxes:

(5) The stock of goods or fixtures of a wholesale or retail merchant . . . in the hands of a purchaser or transferee thereof, or any other personal property of the purchaser or transferee of such property,

if the taxes on the goods or fixtures remain unpaid 30 days after the date of the sale or transfer, but in such a case the levy or attachment must be made within six months of the sale or transfer.

§ 105-368. Procedure for attachment and garnishment. -- (a) [T]he tax collector may attach wages and other compensation, rents, bank deposits, the proceeds of property subject to levy, or any other intangible personal property in the circumstances and ...


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