2006 Alabama Code - Section 25-4-134 — Procedures for collection of delinquent contribution payments.

(a) Generally. The contributions, interest and penalties required to be paid under this chapter shall be a first and prior lien upon all property and rights to property, real or personal, of any employer subject to this chapter. The lien shall arise at the time the contribution report, or the payment of the contributions, as the case may be, was due to have been filed with or made to the Department of Industrial Relations. The director may file in the office of the judge of probate of any county in this state a certificate which shall show the name of the department for which it is filed, the amount and nature of the contributions, interest and penalties for which a lien is claimed together with any costs that may have accrued, the name of the employer against whose property a lien for such contributions, interest and penalties is claimed and the date thereof. An error in the certificate of the amount shall not invalidate the lien for the amount actually due. Such certificates shall be indexed and recorded under the same provision of law of this state relating to the filing and recording of certificates of judgment and without costs; provided, however, that such lien shall be effective as to purchasers, mortgagees and judgment creditors only from the time a certificate shall have been duly filed for record in the office of the judge of probate in the county wherein is located the property to be subjected to such lien.

Limitation on collections. No civil action by the director, described in subsections (a), (b) or (c) of this section, to collect employer contributions, interest, and penalties due under this chapter shall commence after the expiration of 10 years from the date that the contributions, interest, and penalties were due to be paid under the provisions of this chapter or the date of final determination, whichever is later.

(b) Civil actions.

(1) LIEN. The director shall insure the payment of the amount of any contributions, interest and penalties required to be paid under this chapter by filing a lien as prescribed in subsection (a) of this section against any employer who has not made such payments by the due date.

(2) ATTACHMENT, ETC. If, after due notice, an employer defaults in the payment of contributions, interest or penalties provided by this chapter, the amount due may be collected by civil suit in the name of the director, which shall include the right of attachment. Civil actions brought under this section to collect contributions, interest and penalties thereon from an employer shall be heard by the court at the earliest possible date, and shall be entitled to preference upon the calendar of the court over all other civil actions, except cases arising under Chapter 5 of this title and Article 5 of this chapter. In addition to or independently of the above remedy by civil action, the director may proceed in the manner set out hereinafter.

(3) INJUNCTION AGAINST EMPLOYMENT. After due notice an employer failing to make reports or defaulting in any payment of contribution or interest thereon, as levied under this chapter, for a period of 90 days after the date such reports or contributions are due, and who has not ceased to be an employer, as provided in Sections 25-4-130 and 25-4-131, may be enjoined from employing individuals in employment, as defined in this chapter, upon the complaint of the director filed in the circuit court of any county in which the employer has his or its headquarters or his or its primary place of doing business; and such employer so failing to make reports or to pay contributions levied hereunder shall, as part of the court judgment or order, be enjoined from employing individuals in employment until such returns shall have been made and the contributions shown by any proceedings provided by this chapter to be due thereunder shall have been paid to the director.

(4) GARNISHMENT. The director shall have authority to issue writs of garnishment directed to any sheriff of Alabama on any final assessment made by the director and upon such garnishment the sheriff shall proceed the same as though the garnishment was issued by a circuit court, and he shall make due return thereof to the director within 60 days after the issuance thereof.

(5) LEVY UPON EXECUTION. Whenever any contributions, interest and penalties required to be paid under this chapter are not paid within 30 days of the date due and upon final assessment in any of the manners provided in this section, the director is authorized to issue an execution therefor directed to any sheriff of the State of Alabama, commanding him to levy upon and sell the real and personal property of the employer against whom such execution is directed, found in his county, for the payment of contributions and interest due, together with penalties assessed. The sheriff shall, within five days after the receipt thereof, file with the clerk of the circuit court of his county a copy thereof and thereupon the circuit clerk shall enter in the judgment roll in the column of judgment debtors the name of the employer named in the execution, the amount of contributions, interest and penalties for which the execution is issued and the date when such copy is filed. The sheriff shall thereupon levy upon any property of the employer with like effect and in the manner prescribed by law in respect to executions issued upon judgments of the circuit court and the remedies of attachment and garnishment shall apply fully to such executions and the officer shall be entitled to the same fees for his services as now allowed by law for like services, to be collected in the same manner as now provided by law for like services. The sheriff shall make due return of such execution within 60 days of the issuance thereof to the director and upon such return alias executions may be issued by the director and such shall be executed in the same manner. Whenever any execution is issued by the Department of Industrial Relations for the collection of any unemployment compensation taxes owing said department by an employer, such execution, duly attested by the director of said department or his authorized agent, shall be sufficient warrant to the sheriff to whom the same is directed to levy on the property of the employer against whom said execution is directed and the sheriff shall forthwith execute such writ without demanding or requiring any indemnifying bond or other protective obligation, and the said writ of execution issued by the department for the collection of unemployment taxes due it shall be sufficient defense to any civil action for damages on any grounds other than the willful, wanton or malicious conduct of the officer making the levy. Sales under executions issued hereunder shall be held as provided by the laws of Alabama. At any such sale the director or his authorized agent shall be empowered to act on behalf of the State of Alabama in bidding at any such sale.

(c) Assessments.

(1) ASSESSMENT OF CONTRIBUTIONS AND PENALTIES DUE.

a. If an employer fails to make and file with the department any report as and when required by the terms and provisions of this chapter or by any rule and regulation of the director for the purpose of determining the amount of contributions due by said employer under this chapter, the director may issue a written notice by registered or certified mail to such employer, addressed to his last known address or place of business, to make such report or reports forthwith, and if such employer fails or refuses to make such report within 15 days from the date of such notice, then the director shall make a report for such employer upon such information as he may reasonably obtain, and shall assess the contributions and penalties due thereon and interest at the rate of one percent per month, or fraction thereof, from the date such contributions were due.

b. If an employer who has made and filed with the department any report required and such report is signed by the employer or his duly authorized representative but he has not paid, or has not paid in the correct amount, any contribution due within 30 days from the date due, then the director shall assess the correct amount of contributions due to be paid, along with penalties due thereon and interest at the rate of one percent per month, or fraction thereof, from the date such contributions were due, without any further notice or hearing as is provided for in subdivision (2) of this subsection (c) and such assessment shall be final unless an appeal is taken as is provided in subdivision (3) of this subsection (c).

c. If any report which is filed is deemed by the director to be incorrect, incomplete or insufficient, the director may issue a written notice by registered or certified mail to such employer, addressed to his last known address or place of business, to make such report correct, complete or sufficient forthwith, and if such employer fails or refuses to do so within 15 days from the date of such notice, then the director shall make such corrections or completions upon such information as he may reasonably obtain and shall, without further notice or hearing, assess the contribution and penalties due thereon and interest at the rate of one percent per month or fraction thereof from the date such contributions were due and such assessment shall be final unless an appeal is taken as is provided in subdivision (3) of this subsection (c).

(2) NOTICE OF ASSESSMENT AND HEARING: REVISION OF ASSESSMENT.

a. Whenever the director shall make an assessment against an employer as provided in this section, the director shall notify the employer by registered or certified mail of the amount of such assessment and shall notify the employer to appear before him on a day named not less than 15 days from the date of such notice and show cause why such assessment should not be made final. Such appearance may be made by agent or attorney. If no showing is made on or before the date fixed in said notice or if such showing is not sufficient in the judgment of the director, such assessment shall be made final in the amount originally fixed or in such other amount as is determined by the director to be correct. If, upon such hearing, the director finds the amount due to be different from that originally assessed, he shall make the assessment final in the correct amount and in all cases shall notify the employer of the assessment as finally fixed. A notice by the United States registered or certified mail addressed to the employer's last known address or place of business shall be sufficient. Any assessment made by the director shall be prima facie correct upon appeal.

b. If, after the assessment has become final, the employer files the report for the period covered by the assessment and the report is substantiated by reasonable evidence, the director may, for good cause and at his discretion correct the assessment, either upward or downward, provided the report and substantiation is filed with him not later than four years after the date on which the report originally became due.

(3) APPEAL FROM ASSESSMENTS.

a. Whenever any employer who has protested an assessment by the director under the provisions of paragraph a. of subdivision (2) of this subsection (c), is dissatisfied with the assessment as finally made, he may appeal as provided in this subdivision.

b. If an employer against whom an assessment is made by the director is dissatisfied with the final assessment as fixed by the director under any of the provisions of subdivision (1) of this subsection (c) and duly protests the fixing of the same, he may appeal from said final assessment to the Circuit Court of Montgomery County, or to the circuit court of the county in which the employer resides or has his principal place of business, if the employer has within the state a permanent residence, at the option of the employer, by filing notice of appeal with the director and with the register of the circuit court of the county to which appeal shall be taken, within 30 days of the date of the final assessment made and entered on the minutes of the department, and in addition thereto by giving bond conditioned to pay all costs, to be filed with and approved by the register or clerk of the court to which the appeal shall be taken. The employer shall pay the assessment so made before the appeal is filed, or the court shall upon motion dismiss such appeal, unless at the time of taking the appeal the employer has executed a supersedeas bond with sufficient sureties to be approved by the register or clerk of the court to which the appeal shall be taken in double the amount of contributions, interest and penalties, payable to the director, conditioned to pay all contributions, interest, penalties and costs found to be due the Department of Industrial Relations. In such appeal, the employer shall be styled the appellant and the director shall be styled the appellee. The assessment made by the director shall be prima facie correct, and the burden shall be on the employer to show that such assessment is incorrect. The circuit court, or Court of Civil Appeals or the Supreme Court of Alabama on appeal, may, if it be of the opinion from all the evidence that the assessment as made is either too high or too low, fix the amount of such assessment. The court shall hear such appeals according to its own rules and methods of procedure so far as practicable and shall decide all questions both as to legality of the assessment and the amount thereof. No court shall have the power to enjoin the payment of any contributions, interest or penalty due on such assessment so appealed or to suspend the payment thereof. From the judgment of the circuit court, the employer or the director may appeal to the Court of Civil Appeals if the amount involved, exclusive of interest and costs, does not exceed $10,000.00, or to the Supreme Court of Alabama if said amount exceeds $10,000.00, within 30 days of the rendition of the judgment upon giving such security for the cost of such appeal as approved by the register or clerk of the circuit court from which the appeal shall be taken. If upon such appeal the assessment made by the director is reduced, the court, upon proof of payment of said contributions, interest and penalties, shall ascertain and recite such fact in the judgment and shall ascertain and determine by its judgment and order the amount of contributions, interest and penalties which was invalid and the director shall thereupon refund to the employer the amount so ascertained by the court to be invalid.

(4) COLLECTION OF ASSESSMENTS. If contributions, interest or penalties are not paid within 15 days from the date of final assessment where no appeal is taken, or within 15 days of the date upon which any decision is issued upon an appeal is made final, the director shall take any action to collect as he may be authorized by any of the provisions of this section.

(d) Bonds.

(1) SURETY BOND OR CASH DEPOSIT FROM CONTRACTOR. Any contractor primarily engaged in contract construction who is or becomes an employer, as defined by this chapter, and who is or becomes delinquent for any contributions due under this chapter may be required to post with the director a blanket surety bond by a licensed surety company authorized to do business in the State of Alabama in any amount which the director shall determine to be sufficient for the payment of all unemployment compensation taxes which will be due to the state for a period of not less than one year by virtue of its operations. In the alternative, said contractor may file a surety bond with respect to each contract. Further, in lieu of such security bond, he or it may deposit with the director in cash an amount equal thereto. These deposits shall be held by the director in a special deposit fund account established for that purpose; provided further, no bond or cash deposit shall be required for an amount to exceed $10,000.00 unless in the opinion of the director a larger amount is necessary.

(2) WITHHOLDING OF LICENSE FROM CONTRACTOR. The Alabama State Licensing Board for General Contractors or any other licensing agency of the State of Alabama is hereby authorized to, and upon petition by the director shall, withhold any license from any contractor subject to the provisions of this section until the provisions of this subsection (d) have been complied with.

(3) RELEASE OF CONTRACTOR. Any "employer" contractor shall cease to be subject to the provisions of this subsection (d) after he or it has been an employer as defined in this chapter within this state for a period of 12 calendar quarters and has paid all contributions due under the provisions of this chapter. Any employer who ceases to be subject to the provisions of this subsection (d) as provided in this subdivision or was excepted under the provisions of subdivision (1) of this subsection (d) and who later became delinquent for any contributions shall again become subject to such provisions until he or it again becomes eligible for release in accordance with the provisions of this subsection (d). When any contractor ceases operations or is otherwise released from the requirements under this section, he or it shall be entitled to have his or its bond cancelled or cash deposit refunded upon payment of all contributions, interest and penalties due under the provisions of this chapter.

(4) PROCEEDINGS AGAINST SURETY, ETC. If an "employer" contractor fails to pay any contributions, interest and penalties provided for in this chapter when they become due, the director may call upon the surety company for the payment thereof or cause them to be paid by deducting the amount due from the contractor's cash deposit. Any employer subject to the provisions of this subsection (d) who fails to comply thereto shall be enjoined from any further operations until the provisions of this subsection (d) have been complied with.

(Acts 1939, No. 497, p. 721; Code 1940, T. 26, §240; Acts 1945, No. 283, p. 449, §6; Acts 1951, No. 566, p. 995; Acts 1967, No. 169, p. 522; Acts 1971, No. 1201, p. 2083, §§7, 8; Acts 1971, No. 2325, p. 3748, §§7, 8; Acts 1973, No. 1057, p. 1716, §9; Acts 1979, No. 79-824, p. 1541, §3; Acts 1995, No. 95-311, p. 582, §2.)

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