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#2095

IN THE UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF KANSAS

In Re:

ALAN KEITH WILLIAMS,

DEBTOR(S)

NO. 93-41389-13

CHAPTER 13

ORDER SUSTAINING THE DEBTOR'S OBJECTION TO CLAIM NO. 12

This matter is before the Court on the debtor's objection to proof of claim number 12, filed by the Kansas Department of Revenue (KDOR). The debtor appears by counsel Paul D. Post. The KDOR appears by counsel J.D. Befort. The trustee has not joined in the fray. The Court has reviewed the relevant pleadings and is now ready to rule.

In 1991, the KDOR issued a warrant against the debtor for unpaid income taxes. The warrant was filed with the Shawnee County District Court and, pursuant to Kansas law, the county sheriff sought to seize the debtor's property for payment of the taxes but was unable to find any. The KDOR contends these facts made its warrant an "unperfected judicial lien" against the debtor's personal property and preclude the debtor from asserting any exemptions that protect his personal property from creditors with other types of claims. The debtor, of course, disagrees.

Both parties rely solely on K.S.A. 79-3235 as authority for their respective positions. Neither side has cited any case law or other additional authority.

Having read it, the Court concludes the statute simply provides that an unsatisfied tax warrant gives the state the same collection rights it would have if it had obtained a judgment against the taxpayer. In addition, the taxpayer may not exempt from forced sale any property executed against for the taxes. Otherwise, the KDOR's rights are the same as those of any ordinary judgment creditor under Kansas law.

K.S.A. 1993 Supp. 60-2202(a) provides that a judgment automatically becomes a lien on any real estate owned by the judgment debtor in the county in which the judgment is rendered. However, nothing in Kansas law provides for general judgments to become liens on personal property. K.S.A. 79-3235 does not change this rule. It merely allows tax warrants to be enforced like judgments and further eliminates the exemption defense taxpayers may use to reclaim property from executions by ordinary judgment holders. Since the debtor owned no real property in Shawnee County, the KDOR's unsatisfied tax warrant gave it no lien on any of the debtor's property.

The debtor's objection to the KDOR's assertion that it has a lien which secures part of its claim is hereby sustained.

IT IS SO ORDERED.

Dated at Topeka, Kansas, this _____ day of December, 1994.













__________________________________

JAMES A. PUSATERI

CHIEF BANKRUPTCY JUDGE

 

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