MS 2022-10-S-Barnett-October-21-2022-Priority-of-Tax-Liens October 21, 2022

Can a Mississippi tax collector seize and sell personal property over a lender's lien to collect delinquent personal property taxes?

Short answer: Yes. Under § 27-41-101 a Mississippi tax collector can give notice, file a tax lien with the circuit clerk for enrollment as a judgment, and issue a warrant under § 27-41-103 directing the sheriff to seize and sell the taxpayer's property. The resulting tax lien has preference over other liens, except for motor vehicles and titled mobile homes.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Plain-English summary

The Harrison County Tax Collector asked the AG whether she could have the sheriff seize and sell a delinquent taxpayer's personal property over the objection of a secured lender that already had a lien on the property. The answer was yes, with a structured process and important exceptions.

Mississippi gives the tax collector a streamlined collection mechanism in § 27-41-101 and the surrounding sections. The procedure has four steps:

Step 1: Notice and demand. Once personal property tax becomes delinquent, the tax collector sends written notice (by certified or registered mail) to the taxpayer and any known secured lender, demanding payment within 20 days.

Step 2: File the lien with the circuit clerk. If no payment comes in, the tax collector files a notice of tax lien with the circuit clerk, who enrolls it as a judgment on the judgment roll.

Step 3: Priority is established. Once enrolled, the judgment is "valid as against mortgagees, pledgees, entrusters, purchasers, judgment creditors, and other persons from the time of filing with the clerk." For the specific personal property on which the tax was levied, the tax lien has preference over all other judgments, executions, encumbrances, or liens, regardless of when they were created. There are two carve-outs: motor vehicles (under the 1958 Motor Vehicle Ad Valorem Tax Law) and certain titled manufactured housing and mobile homes. As to general real property, the tax lien is superior only to those who got their interest after the tax-lien filing date.

Step 4: Issue a warrant; sheriff seizes and sells. The tax collector issues a warrant under § 27-41-103 directing the sheriff to seize and sell the property. The sheriff sells under bill of sale; the sale is governed by §§ 13-3-161 through 13-3-173 (general execution and sale procedures). The Pepper (1995) opinion outlines the seizure-and-sale mechanics in more detail.

The 1997 Rogers AG opinion summarizes the priority result: the lien obtained under § 27-41-101 is "a general lien upon all real and personal property belonging to the delinquent taxpayer and remains a first priority lien to the specific personalty upon which the tax was levied, but is only superior, as to real property, to all mortgagees, pledgees, entrusters, purchasers, creditors and all other persons from the time of filing with the clerk."

So the tax collector wins, even over a pre-existing lender, on the specific personal property the tax was levied on. The lender's lien yields. As to other property, the tax-lien priority depends on filing date.

What this means for you

If you are a Mississippi tax collector

The opinion sets out the sequence the tax collector must follow under § 27-41-101: give written notice to the taxpayer and to any secured lender by certified or registered mail, demanding payment within 20 days; if there is no response, file the notice of tax lien with the circuit clerk for enrollment as a judgment; then issue a warrant under § 27-41-103 directing the sheriff to seize and sell. The opinion stresses that the tax collector "must first follow the procedure set forth in Section 27-41-101 before enrolling a tax lien as a judgment."

If you are a sheriff acting on a tax warrant

The warrant directs you to "immediately seize and sell the real and personal property of the person owning the property found within the county" for the amount of ad valorem tax set out in the warrant and the cost of executing it. Property sold is sold by sheriff's bill of sale. The opinion notes that a sale by execution or other process implicates the requirements of §§ 13-3-161 through 13-3-173.

If you are a secured lender on a Mississippi personal-property loan

Under § 27-41-101(1), the tax collector must give notice to the taxpayer and to any secured lender before enrolling the lien. The opinion holds that, with the carve-outs below, once the judgment is enrolled the tax lien "shall be entitled to preference over all judgments, executions, encumbrances or liens whensoever created" on the specific personal property the tax was levied on, so a tax lien on that property takes priority over a lender's existing lien.

If you are a delinquent taxpayer

The opinion describes the statutory sequence: the tax collector demands payment within 20 days of the notice; if there is no response, the collector may file the lien for enrollment as a judgment, after which the collector may issue a warrant directing the sheriff to seize and sell the property to satisfy the delinquent taxes.

If you finance vehicles, mobile homes, or titled manufactured housing

The opinion identifies two carve-outs in § 27-41-101(3): motor vehicles as defined by the Motor Vehicle Ad Valorem Tax Law of 1958, and manufactured housing and mobile homes having certificates of title under the Mississippi Motor Vehicle and Manufactured Housing Title Law. The tax-lien preference does not extend to those titled categories. For other personal property on which the tax was levied, the opinion treats the tax lien as a first-priority lien.

Common questions

Q: Why does the tax lien beat existing security interests?
A: § 27-41-101(3) provides that, except for the titled motor-vehicle and manufactured-housing carve-outs, the judgment's preference on the personal property the taxes were assessed on is "entitled to preference over all judgments, executions, encumbrances or liens whensoever created upon such personal property." The opinion reads that as a first-priority lien on the specific personalty the tax was levied on.

Q: What about real property?
A: The tax lien is a general lien on all of the taxpayer's real and personal property once enrolled, but for real property the priority is only superior to interests created after the lien is filed with the clerk. So a mortgage filed before the tax lien retains its priority on real estate.

Q: Can the sheriff seize property that the taxpayer does not own?
A: No. The warrant authorizes seizure of property "of the person owning the property found within the county." Property the taxpayer does not own (e.g., property in the taxpayer's possession but owned by a third party) is not subject to the warrant.

Q: Are motor vehicles different?
A: Yes. Section 27-41-101(3) carves out motor vehicles defined under the Motor Vehicle Ad Valorem Tax Law of 1958 and titled manufactured housing under the Motor Vehicle and Manufactured Housing Title Law. Existing liens on those titled vehicles retain their priority. The tax-lien preference rule does not apply to titled vehicles.

Q: Does the AG validate Harrison County's specific past actions?
A: No. AG opinions are limited to prospective questions of state law. The Barnett opinion frames the legal mechanism and declines to address whether any specific past seizure was lawful.

Q: Does this apply to other tax collectors (state, federal)?
A: The opinion is about county tax collectors enforcing personal property ad valorem taxes under Mississippi state law. State tax collection (Department of Revenue) and federal tax collection (IRS) operate under separate statutory schemes with their own priority rules.

Background and statutory framework

Mississippi's property tax system relies on local administration. Counties levy ad valorem taxes on personal and real property. The tax collector is the county-level officer responsible for collecting those taxes. When taxpayers pay, the system runs smoothly. When they do not, § 27-41-101 et seq. supplies the muscle.

The procedural sequence (notice, demand, lien filing, warrant, seizure, sale) parallels the way private creditors operate, but with the statutory priority § 27-41-101(3) supplies on the specific personal property the tax was levied on, except for the titled motor-vehicle and manufactured-housing categories the statute carves out.

Sheriff's sales operate under the general execution-and-sale framework in §§ 13-3-161 through 13-3-173. The 1995 Pepper AG opinion lays out the practical mechanics. The 1997 Rogers AG opinion describes the priority outcome.

Citations

Miss. Code Ann. § 7-5-25 (AG opinions limited to prospective state law)
Miss. Code Ann. § 27-41-101 (tax lien procedure)
Miss. Code Ann. § 27-41-101(1) (notice and demand)
Miss. Code Ann. § 27-41-101(2) (filing lien with circuit clerk)
Miss. Code Ann. § 27-41-101(3) (priority and motor-vehicle/manufactured-housing exception)
Miss. Code Ann. §§ 27-41-101 through 27-41-109 (delinquent tax collection)
Miss. Code Ann. § 27-41-103 (warrant and sheriff seizure-and-sale)
Miss. Code Ann. § 27-53-11 (mobile or manufactured home tax due dates)
Miss. Code Ann. §§ 13-3-161 through 13-3-173 (execution and sale procedures)
MS AG Op., Brock (Nov. 8, 2019) (AG declines to opine on past actions)
MS AG Op., Pepper (Dec. 21, 1995) (seizure and sale mechanics)
MS AG Op., Rogers (May 30, 1997) (priority of § 27-41-101 lien)

Source

Original opinion text

October 21, 2022
The Honorable Sharon Nash Barnett
Harrison County Tax Collector
Post Office Box 1270
Gulfport, Mississippi 39502
Re:

Priority of Tax Liens

Dear Ms. Barnett:
The Office of the Attorney General has received your request for an official opinion.
Question Presented
Can the tax collector have the Sheriff seize personal property owned by a taxpayer that is already
subject to a lien and have the Sheriff sell it with the proceeds of the sale applied to the delinquent
personal property taxes over the objections of the lien holder?
Brief Response
Yes. Under the authority of Section 27-41-101 of the Mississippi Code, the tax collector may file
a notice of tax lien with the circuit clerk of the county, who in turn shall enter it on the judgment
roll. Such judgment shall serve as authority for the clerk to issue remedial writs, or in lieu thereof,
the tax collector may issue a warrant, per Section 27-41-103, directing the sheriff to seize and sell
the personal and real property of the taxpayer for the payment of the delinquent ad valorem taxes.
With exceptions for motor vehicles and certain mobile homes, the resulting tax lien "shall be
entitled to preference over all judgments, executions, encumbrances, or liens. . . ." Miss. Code
Ann. § 27-41-101.
Applicable Law and Discussion
As an initial matter, opinions of this office are limited to prospective questions of state law. Miss.
Code Ann. § 7-5-25. This office does not validate or invalidate past actions, nor do we make factual
determinations. Therefore, to the extent your request may involve past action, we decline to
respond with an official opinion of this office. MS AG Op., Brock at *1 (Nov. 8, 2019). We also
offer no opinion about whether a specific piece of personal property may be seized and sold for
payment of personal property taxes.

In order for the sheriff to seize and sell the personal property of a delinquent taxpayer, the tax
collector must first follow the procedure set forth in Section 27-41-101 before enrolling a tax lien
as a judgment on the court judgment roll:
In the event the tax collector elects to use the provisions of Sections 27-41-101
through 27-41-109 to collect delinquent tax payments on personal property and,
upon default of the payment of ad valorem taxes upon personal property upon the
due dates prescribed in this chapter or, in the case of mobile or manufactured homes
classified as personal property, the due date prescribed in Section 27-53-11, the tax
collector shall give written notice to the taxpayer and to any secured lender
demanding the payment of the ad valorem taxes on personal property then
remaining in default within twenty (20) days from the date of the delivery of the
notice. The notice shall be sent by certified or registered mail . . . .
Miss. Code Ann. § 27-41-101(1). If the notice and demand requirement as set forth in Section 27-41-101 is met, and there is no response from the taxpayer or anyone liable for payment of taxes
(or the secured lender if any), "the tax collector may file a notice of a tax lien for such ad valorem
taxes with the circuit clerk of the county in which the taxpayer resides or owns property which
shall be enrolled as a judgment on the judgment roll." Miss. Code Ann. § 27-41-101(2). Thereafter:
The judgment shall be valid as against mortgagees, pledgees, entrusters, purchasers,
judgment creditors, and other persons from the time of filing with the clerk;
provided, however, that the preference of a judgment in regard to any personal
property upon which the taxes are assessed, excepting motor vehicles as defined by
the Motor Vehicle Ad Valorem Tax Law of 1958, and manufactured housing and
mobile homes having certificates of title as defined by the Mississippi Motor
Vehicle and Manufactured Housing Title Law shall be entitled to preference over
all judgments, executions, encumbrances or liens whensoever created upon such
personal property.
Miss. Code Ann. § 27-41-101(3). This office has opined that if a tax collector utilizes the "scheme
enacted in Section 27-41-101, the lien so obtained is a general lien upon all real and personal
property belonging to the delinquent taxpayer and remains a first priority lien to the specific
personalty upon which the tax was levied, but is only superior, as to real property, to all
mortgagees, pledgees, entrusters, purchasers, creditors and all other persons from the time of filing
with the clerk." MS AG Op., Rogers at *2 (May 30, 1997) (emphasis added) (internal quotations
omitted).
Once enrolled, the judgment serves as authority for the circuit clerk to issue writs of garnishment,
execution, attachment, and other remedial writs. Miss. Code Ann. § 27-41-101(3). In lieu of the
remedial writs issued by the circuit clerk, the tax collector is empowered to issue warrants for the
collection of ad valorem taxes:
The tax collector may issue a warrant under his official seal directed to the sheriff
of any county of the state commanding him to immediately seize and sell the real
and personal property of the person owning the property found within the county

in which the judgment is enrolled for the payment of the amount of ad valorem tax
on personal property as set forth in the warrant, and the cost of executing the
warrant. Any such property sold shall be sold by sheriff's bill of sale.
Miss. Code Ann. § 27-41-103. Sections 27-41-103 through 109 govern the seizure and sale by
the sheriff of property belonging to the taxpayer. MS AG Op., Pepper at *1-2 (Dec. 21, 1995).
The sale of property by virtue of an execution or other process implicates the requirements of
Sections 13-3-161 through 173.
In conclusion, it is the responsibility of the tax collector to follow the notice and demand
requirements of the above-cited statutes in order for the circuit clerk to enroll a lien upon the
judgment roll. Subsequently, the tax collector may issue a warrant to the sheriff directing the
sheriff to seize property belonging to the taxpayer and selling the same to satisfy the delinquent
taxes.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Misty Monroe
Misty Monroe
Assistant Attorney General