Opinion
Docket No. 128608.
Decided October 8, 1991, at 9:20 A.M. Leave to appeal sought.
Hugh B. Clarke, Jr., for Gregory L. Martin.
Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, and E. David Brockman and Charles E. Donahue, Assistant Attorneys General, for the Department of Treasury.
Before: SHEPHERD, P.J., and CAVANAGH and FITZGERALD, JJ.
This appeal concerns whether claimant Gregory Martin's attorney, Hugh B. Clarke, Jr., or intervening claimant, Department of Treasury, is entitled to a cash fund of $73,873.21, plus interest, which was seized from Martin under this state's drug forfeiture laws, MCL 333.7521 et seq.; MSA 14.15(7521) et seq., but ordered returned to Martin, subject to the competing claims of attorney Clarke and the department. The trial court awarded the department the amount attributable to Martin's tax liability for tax years 1984, 1985, and 1986. Attorney Clarke was awarded any remaining funds. In this appeal as of right, attorney Clarke seeks the entire $73,873.21.
Martin hired Clarke as his counsel in December 1987 to represent him in both the criminal and forfeiture proceedings. On January 12, 1988, a retainer agreement was executed by Martin and Clarke wherein Clarke agreed to represent Martin in exchange for $100,000. The agreement also specified that Martin intended to give Clarke an assignment of all funds seized by the Tri-County Metro Narcotics Squad, with Martin remaining liable for any deficiency in the funds.
On March 9, 1988, Martin executed an assignment to Clarke of "all right, title and interest he may have for legal services to be rendered." The assignment involved three of four seized funds. Martin also filed financing statements with the Secretary of State and the Ingham County Register of Deeds, listing Clarke as a "secured party" in all four seized funds. We are unable to determine from the record the particular section of the Uniform Commercial Code relied on by Martin for the filing.
On May 27, 1988, the department issued final tax assessments against Martin for four tax years commencing January 1, 1984, and ending December 31, 1987, totaling $143,666.29 plus interest. Notice of a tax levy against the seized funds was issued to the Tri-County Metro Narcotics Squad. The tax levy was issued under the Department of Revenue Act, 1941 PA 122, as amended, MCL 205.1 et seq.; MSA 7.657(1) et seq., and, specifically, MCL 205.25; MSA 7.657(25), which requires a person in possession of, or obligated with respect to, property or property rights upon which a tax levy has been made to surrender the property upon demand.
The issue, as presented to us, is whether, under 205.29; MSA 7.657(29), as amended by 1986 PA 58, the state tax lien for tax years 1984, 1985, and 1986 had priority over attorney Clarke's assignment. Martin argues that a valid and perfected assignment of all seized funds was made before the state tax lien attached because the earliest the state tax lien could have attached was April 15, 1988. The department argues that, as an assignee of Martin, Clarke took Martin's property rights subject to the same state lien to which Martin would have been subject. Martin's money was subject to the state tax lien under the "afterwards acquired" clause of the statute, and the lien attached immediately in 1987 on the cash funds.
As an assignee, attorney Clarke stood in the shoes of his assignor. The rights he acquired were the same rights as those his assignor possessed. Damerau v C L Rieckhoff Co, Inc, 155 Mich. App. 307, 313; 399 N.W.2d 502 (1986). Thus, an assignee cannot expand his rights simply by filing a financing statement. We therefore must determine what rights attorney Clarke acquired on March 9, 1988, when the assignment was executed.
At the time of the assignment, the possessor of the fund was the Tri-County Metro Narcotics Squad. The forfeiture action was an in rem civil proceeding, with Martin's right being whatever personal interest he could show in the res. See MCL 333.7523; MSA 14.15(7523); In re Forfeiture of $28,088, 172 Mich. App. 200; 431 N.W.2d 437 (1988). Martin's personal interest was already subject to the tax lien under MCL 205.29(1); MSA 7.657(29)(1), which provides in pertinent part:
Taxes . . . shall be a lien in favor of the state against all property and rights to property . . . owned at the time the lien attaches, or afterwards acquired by any person liable for the tax, to secure the payment of the tax. The lien shall attach to the property from and after the date that any report or return on which the tax is levied is required to be filed with the department and shall continue for 7 years after the date of attachment.
We reject Clarke's assertion that a conversion of Martin's house and car to cash in 1987 in some way affects the state tax lien. The guiding principle in statutory interpretation is to determine and effectuate legislative intent. Couture v General Motors Corp, 125 Mich. App. 174, 178; 335 N.W.2d 668 (1983). The plain language of the statute clearly states that the lien applies to property owned or acquired after the date of attachment and that the date the lien attaches is governed by the required filing date for the tax year. Thus, a taxpayer's conversion of his property to another form, such as cash in the instant case, is irrelevant. All that is required is that the taxpayer owned the property or acquired it after the required filing date for a tax year and failed to pay all taxes due for that tax year.
It is undisputed that the filing dates for tax years 1984, 1985, and 1986 was April 15 of the year following each of those years. Because the required filing dates for tax years 1984 to 1986 precede the 1988 assignment to attorney Clarke of Martin's rights as a claimant of the seized funds, it follows that Clarke took those funds subject to the tax lien. Clarke's lack of actual notice of any potential tax deficiency does not change the result because Clarke, as an assignee of Martin, stands in Martin's shoes.
For this reason, and because MCL 205.29(2); MSA 7.657(29)(2), makes no exception for assignees, the department may enforce the lien against the seized fund. The department's right to do so is based on the fact that the only property interest acquired by Clarke in 1988 was the interest possessed by Martin. Damerau, supra. See also 6 Am Jur 2d, Assignments, §§ 119-121, pp 301-304.
Next, Clarke argues that he was a purchaser and that the state tax lien was void under MCL 211.686; MSA 7.753(56), which states:
A state tax lien not filed or recorded pursuant to this act shall be void against any mortgagee, pledgee, purchaser (including land contract purchaser) or judgment creditor who secured an interest in the property subject to the lien prior to the time such notice of lien was filed or recorded, as provided in this act.
The trial court concluded that Clarke was not a "purchaser." We note that the term "purchaser" is not defined in the relevant tax statutes. Thus, we must construe it in accordance with its common and approved usage. MCL 8.3a; MSA 2.212(1).
This Court has looked to the definition of "purchaser" in the provision of the Internal Revenue Code governing federal tax liens, 26 U.S.C. § 6323(h) (6), for guidance in interpreting this term. Dep't of Treasury v Campbell, 107 Mich. App. 561; 309 N.W.2d 668 (1981). While the term "purchaser" has been used in federal lien statutes since 1913, it was not statutorily defined until a 1966 amendment. Before the 1966 amendment, courts defined "purchaser" as a person who acquires title to property for a valuable consideration, with "valuable consideration" meaning more than a nominal amount. United States v First National Bank of Memphis, 458 F.2d 560 (CA 6, 1972). The term "purchaser" is now defined by statute as
a person who, for adequate and full consideration in money or money's worth, acquires an interest (other than a lien or security interest) in property which is valid under local law against subsequent purchasers without actual notice. In applying the preceding sentence for purpose of subsection (a) of this section and for purposes of section 6324 —
(A) a lease of property,
(B) a written executory contract to purchase or lease property,
(C) an option to purchase or lease property or any interest therein, or
(D) an option to renew or extend a lease of property, which is not a lien or security interest shall be treated as an interest in property. [ 26 U.S.C. § 6323(h)(6).]
The term "money's worth" includes services. It also includes a bona fide bargain purchase, such as where the purchaser has not completed performance of his obligation but agrees to do so in an installment purchase contract as long as the consideration in money or "money's worth" has a reasonable relationship to the true value of the interest in the property acquired.
Here, the assignment itself states that it is for legal services to be rendered. By comparison, the retainer contract contains a promise to provide legal services in a criminal drug case and forfeiture action in exchange for $100,000. The contract also had a provision contemplating that the attorney-client relationship might end before the conclusion of the matter and provided a separate remedy in the event the relationship did end. The retainer contract also required that Clarke give priority to Martin's cases. However, as the interested party in the seized funds of $126,174 as an assignee, it also appears that Clarke is in reality largely representing his own interests. MCL 600.2041; MSA 27A.2041 requires that an action be prosecuted by the "real party in interest." The drug forfeiture statutes, likewise, provide for the filing of a claim against the res by an interested party. See MCL 333.7523(1)(c); MSA 14.15(7523)(1) (c); In re Forfeiture of $28,088, supra. Upon assigning his interest, Martin was no longer the interested party.
Giving to Clarke the benefit of every reasonable doubt regarding factual matters, and giving due regard to the federal definition of "purchaser" and an assignee's rights under Michigan law, we hold that Clarke's promise to perform in the criminal and forfeiture matter was not "adequate and full consideration" in money's worth and that Clarke was not a "purchaser" of a property interest as contemplated in MCL 211.686; MSA 7.753(56). At the time of the assignment, Clarke had provided no consideration because he had only negotiated a retainer agreement that contemplated providing legal services in the future. If the attorney-client relationship ended, a contingency provided for in the retainer agreement, Clarke would have provided no consideration in money's worth for an assignment valued at more than $120,000.
Cf. Dep't of Treasury v Campbell, 107 Mich. App. 561; 309 N.W.2d 668 (1981), wherein this Court looked to the federal definition of purchaser to determine whether a state tax lien had priority over an attorney's charging lien. In Campbell, the lien was the result of past legal services rendered in the criminal action against the defendant-claimant, a situation not present in the instant case because Clarke had provided no legal representation to Martin at the time of the assignment.
We reject Clarke's reliance on the definition of "purchaser" in the Uniform Commercial Code, MCL 440.1201(33); MSA 19.1201(33). The definition contained therein is directed at specific provisions of the code, rather than the tax matter at issue. Furthermore, Clarke has failed to show any relevant sections of the code pertaining to his assignment of Martin's rights in the funds seized by the Tri-County Metro Narcotics Squad. The recording provisions of the code apply to security interests, with a security interest in money being perfected by taking possession of the money. MCL 440.9304; MSA 19.9304. Clarke did not have a security interest and did not possess the seized funds. The only right acquired by Clarke was the right to pursue Martin's claim against the seized funds, which were subject to the state tax lien for tax years 1984, 1985, and 1986.
Affirmed.
While I cannot agree with the majority's conclusion that an attorney's promise to render legal services is not "adequate and full consideration," I can agree with the result in this case because, as an assignee, any rights that Clarke acquired from his client were subject to his client's outstanding tax liability. See Damerau v C L Rieckhoff Co, Inc, 155 Mich. App. 307; 399 N.W.2d 502 (1986).