PA Commonwealth Court Holds That A Sheriff’s Sale “Restarted” to Allow Completion of Sale Terms Is Subject to the Same Procedures as an Initial Sale

Posted February 8, 2017 by SALT Blawg
Categories: Pennsylvania, Philadelphia

Tags: ,

By Adam Koelsch

In an unreported opinion, on February 6, 2017, the Commonwealth Court vacated an order of the Philadelphia Court of Common Pleas, which had granted the motion of a Sheriff’s sale purchaser to intervene and to extend time to complete payment of the Sheriff’s sale purchase price.  The Commonwealth Court characterized the Purchaser’s motion as a “restart” of the Sheriff’s sale subject to the same detailed notice and hearing procedures as the initial sale.

In City of Philadelphia v. Singhal, No. 128 C.D. 2016, it was undisputed that the City of Philadelphia had properly served notice of the Sheriff’s sale upon the Owner by posting, and by certified mail at the property address and at the Owner’s registered mailing address in Philadelphia.  Although the Municipal Claims and Tax Liens Act (“MCTLA”), which governs Sheriff’s sales in the City, requires that an owner register a notice of interest in the property with the City and update the mailing address shown on the notice (53 P.S. §7193.1), the Owner had failed to amend the notice to show that she was living in Maryland.  As a result, the Owner was supposedly unaware that the property had been sold at Sheriff’s sale.

The Purchaser at the Sheriff’s sale had paid a down payment for the property, but had failed to pay the remaining amount within 30 days, causing the Sheriff to file a writ of return for the Purchaser’s failure to comply with the sale terms.

Meanwhile, the Owner had become aware of the Sheriff’s sale, had paid the remaining delinquent taxes, and had rented the property to a third-party tenant.

Thereafter, the Purchaser filed a motion to intervene and requested permission from the Court of Common Pleas to complete the terms of the sale.  The court ordered the Purchaser to serve a notice of hearing on all interested parties, which included the Owner.  Knowing that the Owner did not reside at the property, the Purchaser sent notice to the Owner only at the property, failing to send it to the Owner’s out-of-date registered address in Philadelphia.  A hearing was held without the Owner, and the Purchaser’s motion was granted, allowing him to pay the balance of the purchase price.  The Commonwealth Court noted that the lower court’s order had stated that there was “[n]o objection by the City,” which was troubling in light of the fact that the Owner had paid all of the taxes due before the hearing.

Eleven months later, the Owner filed a motion to vacate the order.  The court denied the Owner’s motion without a hearing as “untimely and procedurally improper” under 53 P.S. § 7193.3, which requires any petition to set aside a Sheriff’s sale to be filed within three months after the acknowledgement of the Sheriff’s sale deed.

On review of that denial, the Commonwealth Court characterized the Purchaser’s motion as a “restart” of the Sheriff’s sale not expressly provided for in the MCTLA.  In other words, the sale of the property had “included some improvisational aspects” beyond the relevant provisions of the governing law.  The Court, however, reasoned that at least some of the requirements set forth in the MCTLA relating to a Sheriff’s sale in the first instance — particularly, the requirements of notice to the Owner by mailing of a rule to show cause, and an inquiry by the trial court into whether the facts underlying the petition for sale are true — are likewise applicable to a “restart” sale.

Therefore, the Purchaser was required to serve notice of his motion, just as the City had done with respect to the initial Sheriff’s sale, upon the Owner at her registered address in Philadelphia.  This was despite the fact, as acknowledged by the Court, that the Owner would not have actually received the notice because she was living in Maryland.  Nevertheless, the Purchaser had failed to comply with the statutory notice requirements.

Because there was no legal authority to make the sale, the grant of an equitable remedy, such as the grant of the Owner’s untimely motion to set aside a Sheriff’s sale, was permissible.  Thus, according to the Commonwealth Court, the lower court had abused its discretion by summarily denying the motion, and thereby failing to inquire into whether the notice of motion was properly served and whether the delinquent property taxes were still outstanding.

While the Commonwealth Court highlighted what the Purchaser had done wrong in this case, it was not explicit about what the proper procedure would be for such a “restart” sale in the future.  For instance, the Court said nothing about the whether the Purchaser was required to post his motion and notice at the property, which is a requirement applicable to the notice of any initial Sheriff’s sale, and which was apparently not done in this case.  Whatever the proper procedure is, it requires, at minimum, a mailed notice to the registered address of the property owner, and an inquiry by the trial court as to whether the factual predicate for the sale (i.e., a tax delinquency) still exists.

The Commonwealth Court opinion is available here

Chamberlain Hrdlicka Attorneys Submit Supreme Court Amicus Brief in High-Profile Tax Retroactivity Case

Posted January 14, 2017 by SALT Blawg
Categories: SALT, U.S. Supreme Court

Tags: , , ,

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Just a few weeks ago, Chamberlain Hrdlicka attorneys Stewart M. Weintraub and Adam M. Koelsch, together with Peter L. Faber of McDermott, Will & Emery LLP, filed in the U.S. Supreme Court an amicus brief on behalf of the American College of Tax Counsel in support of the petitioners challenging the Michigan Court of Appeals’ September 2015 decision in Gillette Commercial Operations N. Am. v. Dep’t of Treasury.

In the amicus, the attorneys argued that the Court of Appeals  had misapplied the holding of the Supreme Court in United States v. Carlton in order to sustain a retroactive repeal of tax legislation relied upon by the state. According to the attorneys, that retroactive repeal, stretching seven years into the past, violates the Due Process Clause of the U.S. Constitution.

The petitions had been scheduled for a conference on January 19.  The Court removed the petitions, as well as the petition submitted in the case of Dot Foods, Inc. v. State of Washington, from the conference calendar and ordered Michigan to respond to the petitions by March 13.  Dot Foods, Inc. is another retroactivity case in which Weintraub and Faber had raised similar due process arguments in an amicus brief submitted for the College.

In light of these actions, it is possible that the Court may be interested in reviewing these cases. If the Court were to grant certiorari, it is hoped that the subsequent opinion would provide some much needed guidance regarding the ability of state legislatures to enact retroactive tax changes.

A copy of the Brief is available here.

Philadelphia RAR Overpayments – Not for the Faint of Heart

Posted January 12, 2017 by Stewart Weintraub
Categories: Pennsylvania, SALT

Tags: , , , , , , ,

Chamberlain Hrdlicka’s SALT Practice Chair, Stewart Weintraub, recently wrote an article about Philadelphia RAR Overpayments for the Journal of Multistate Taxation and Incentives.

His article, “Philadelphia RAR Overpayments – Not for the Faint of Heart,” discusses a recent Philadelphia case in which a statute of limitations barring a refund did not prohibit credits against future taxes.

Stewart outlined the Philadelphia Business Income and Receipts Tax (BIRT) structure, the facts of the case, the statute of limitations issues and the case’s conclusion. The article explores the possibility of broader implications.

Reference the full article here.

Stewart M. Weintraub Honored with National Professional Tax Organization’s ‘Special Award’

Posted July 15, 2014 by SALT Blawg
Categories: Pennsylvania

IPT President Arlene Klika presents tax attorney Stewart M. Weintraub with the Special Award from the Institute for Professionals in Taxation on July 1, 2014. The award recognizes Weintraub’s many years of leadership in service to the organization.

IPT President Arlene Klika presents tax attorney Stewart M. Weintraub with the Special Award from the Institute for Professionals in Taxation on July 1, 2014. The award recognizes Weintraub’s many years of leadership in service to the organization.

Institute for Professionals in Taxation honors Chamberlain Hrdlicka attorney for years of leadership

PHILADELPHIA (July 2014) – The Philadelphia office of Chamberlain Hrdlicka is proud to announce that shareholder Stewart M. Weintraub has been recognized by the Institute for Professionals in Taxation® (IPT) with its Special Award for his dedication and service to the organization. The award was presented on July 1, 2014 at the Institute’s Annual Conference in Phoenix, Arizona.

The IPT’s Special Award is presented to members who have contributed significantly to a special project, activity, or achievement of the Institute. Weintraub was honored for his service as co-chair of numerous American Bar Association / IPT Advanced Income Tax, Property Tax and Sales/Use Tax Seminars. For years, Weintraub co-chaired each of the three individual conferences, and then became the first overall chair of the conferences, combined.

“We are grateful to Stewart for his leadership and hard work, year after year, helping to bring these seminars to fruition,” said IPT President Arlene Klika. “The co-sponsorship of these programs enhances the credibility and quality of the programs and the stature of both the ABA and IPT as providers of top-flight state and local tax education.”

Since being admitted to the Pennsylvania bar in 1971, Weintraub has focused his practice upon state and local taxation. From audits through trials and appeals to the appellate courts, Weintraub represents clients in all aspects of state and local tax compliance and litigation. His practice also includes helping clients plan and structure transactions so that all state and local tax obligations are minimized.

Weintraub began his career with the City of Philadelphia Law Department where he rose to be chief of tax litigation and where he served as chief counsel of former Mayor William Green’s Tax Reform Commission. In 2003, Weintraub was appointed to serve as a member of a new voter-approved Tax Reform Commission. He also has held leadership positions for the American Bar Association and the Philadelphia Bar Association and has chaired or co-chaired the state and local tax committee for the Greater Philadelphia Chamber of Commerce since 1983. Now in private practice, Weintraub has been a shareholder at Chamberlain Hrdlicka since 2010.

In 2014, Weintraub was honored with a Lifetime Achievement award by The Legal Intelligencer, an ALM publication. Weintraub lives in Cherry Hill, N.J.

About Chamberlain Hrdlicka – Chamberlain Hrdlicka is a diversified business law firm with offices in Houston, Atlanta, Philadelphia, Denver and San Antonio. The firm represents both public and private companies as well as individuals and family-owned businesses across the nation. In addition to tax planning and tax controversy, the firm offers corporate, securities and finance, employment law and employee benefits, energy law, estate planning and administration, intellectual property, international and immigration law, commercial and business litigation, real estate and construction law.

Stewart Weintraub Receives Lifetime Achievement Award from The Legal Intelligencer

Posted June 9, 2014 by SALT Blawg
Categories: Pennsylvania, SALT, SALT Update

Tags: , , , ,

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Chamberlain Hrdlicka tax attorney honored by ALM Media publication

PHILADELPHIA (June 2014) – The Philadelphia office of Chamberlain, Hrdlicka, White, Williams & Aughtry is proud to announce that shareholder Stewart M. Weintraub has been honored with a Lifetime Achievement Award from The Legal Intelligencer, a publication of ALM Media. Presented at a celebratory dinner on May 29, 2014, the award honors a select number of Pennsylvania’s most influential lawyers and jurists.

The Legal Intelligencer selected individuals who have helped to shape the law in Pennsylvania, whether through their work on the bench, their prowess in a courtroom or their dedication to assisting those in need of legal services. The attorney must have had a distinct impact on the legal profession in the state and must still be practicing law.

A well-known and respected state and local tax attorney, Weintraub has been a leader in both the Pennsylvania and the national legal community for more than 40 years.

“I want to thank The Legal Intelligencer and ALM for this recognition,” Weintraub said. “I could not do what I do without the help and support of my family and my firm. I am honored that one of the legal community’s leading publications believes the work I do day to day is considered so meritorious that it should be recognized.”

Since being admitted to the Pennsylvania bar in 1971, Weintraub has focused his practice upon state and local taxation. From audits through trials and appeals to the appellate courts, Weintraub represents clients in all aspects of state and local tax compliance and litigation. His practice also includes helping clients’ plan and structure transactions so that all state and local tax obligations are minimized.

Weintraub began his career with the City of Philadelphia Law Department where he rose to be chief of tax litigation and where he served as chief counsel of former Mayor William Green’s Tax Reform Commission. In 2003, Weintraub was appointed to serve as a member of a new voter-approved Tax Reform Commission. He also has held leadership positions for the American Bar Association and the Philadelphia Bar Association and has chaired or co-chaired the state and local tax committee for the Greater Philadelphia Chamber of Commerce since 1983. Now in private practice, Weintraub has been a shareholder at Chamberlain Hrdlicka since 2010.

About Chamberlain Hrdlicka – Chamberlain Hrdlicka is a diversified business law firm with offices in Houston, Atlanta, Philadelphia, Denver and San Antonio. The firm represents both public and private companies as well as individuals and family-owned businesses across the nation. In addition to tax planning and tax controversy, the firm offers corporate, securities and finance, employment law and employee benefits, energy law, estate planning and administration, intellectual property, international and immigration law, commercial and business litigation, real estate and construction law.

ABA/IPT State and Local Tax Seminars – March 31st through April 4th in New Orleans, Louisiana

Posted March 6, 2014 by SALT Blawg
Categories: Louisiana

Tags: ,

 by Jennifer Weidler

The ABA Section of Taxation and the Institute for Professionals in Taxation will be holding a week-long opportunity for practitioners to receive CLE and CPE credit while learning about current state and local tax issues facing different businesses and industries.  The seminars will be held in New Orleans, Louisiana.  According to the ABA/IPT, the seminars are designed for, “attorneys, accountants, tax directors, state and local tax managers, government tax officials, appraisers, property tax managers, commercial and industrial property managers, and others interested in state and local income, sales, use, and ad valorem taxation.”  The seminars will take place from March 31, 2014 through April 4, 2014.  Each seminar is one and one-half days: the Income Tax Seminar will be held from March 31st through April 1st; the Sales/Use Tax Seminar will be held from April 1st through April 2nd; and the Property Tax Seminar will be held from April 3rd through April 4th.

Stewart M. Weintraub, shareholder and Chair of the SALT practice at Chamberlain Hrdlicka, is the Overall Chair for the three ABA/IPT Seminars.  During the Income Tax program Mr. Weintraub will be moderating a panel discussing “When to Settle – Audit Strategies to Avoid Litigation” and during the Property Tax program he will be a panelist discussing Current Developments in Property Tax.

For more information about the seminars, see the brochure: https://meetings.abanet.org/meeting/tax/IPT14/media/2014%20ABA-IPT%20Brochure.pdf

For general and hotel information and to register for the program, see: http://meetings.abanet.org/meeting/tax/IPT14/

Upcoming Event: Stewart Weintraub to Participate in ABA Tax Section Panel discussing State and Local Tax Issues Regarding Sale of a Business

Posted August 29, 2012 by Stewart Weintraub
Categories: Event

  by Stewart Weintraub

I am pleased to share with you that I will be speaking at the upcoming meeting of the ABA Tax Section State & Local Tax Committee, in Boston MA.  The panel presentation is titled: “Selling Your Business: Where’s Our Share?  State Taxes on the Sale of an Interstate Business or Subsidiary,”.

From AmericanBar.org:

“The panel will discuss the key SALT issues that arise from the sale of a business or a subsidiary, including stock sales that are treated as asset sales under IRC Section 338. The panel will review how these transactions were treated under UDITPA’s business income definition and under current state laws that vary from UDITPA, including a discussion of the key cases and pending litigation.  The panel will also address apportionment factor treatment, including pending changes in apportionment definitions and rules under consideration by the Multistate Tax Commission and how they might impact how proceeds from the sale of a business or subsidiary would be treated.”

The ABA Section of Taxation and the Trust and Estate Law Division of the ABA Section of Real Property, Trust and Estate Law holds the 2012 Joint Fall CLE Meeting to bring attorneys together to discuss important tax policies, regulations and future expectations within the trust and estate practice.

If you are interested, I hope you will attend my panel. You may register at this link here.