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HOA and IRS Lien Priority Issues

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When HOA liens compete with an IRS income tax lien on real property, which has priority? This presentation offers analysis and a case study discussing the issues.

When HOA liens compete with an IRS income tax lien on real property, which has priority? This presentation offers analysis and a case study discussing the issues.


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  • 1. When HOA's and the IRS Compete for Lien Property:  Lien Priorities, Perfection, and Foreclosure Rights   Prepared and Presented by:   Mark E. Lines, Esq. Shaw & Lines, LLC
  • 2. Seminar Overview
    • When Competing Lien Claims Exist, Who Wins? : Analyzing lien priority of competing HOA and IRS income tax liens
    • A Case Study : Did they get it right?
    • Controlling Law : Applicable state law and federal law
    • Security Interests, Priorities and “Superpriorities ” : Where does an HOA lien fit in under the tax code? Where should it?
    • IRS Tax Code, the UCC and UCIOA : Historical perspective and legislative intent
    • Choate Doctrine : Analysis of common law, liens “arising”, the timing of perfection, “relation back” theory and determining the lien balances
  • 3. Case Study – Factual Background
    • Trustee’s sale in December 2003. Over $10,000 in excess proceeds.
    • At the time of the sale, the HOA had a statutory lien for about $5,900.
    • The HOA petitioned for payment ($5,900) from the excess proceeds.
    • IRS responded claiming priority to the full amount for an unpaid income tax lien owed by the former owner and secured against the foreclosed property. As of the date of the foreclosure sale, the IRS lien balance was more than $75,000.
    • The parties filed cross-motions for summary judgment, each party claiming priority.
    • If the HOA wins, it gets $5,900 the balance going to the IRS. If the IRS wins, it gets all of the money and nothing to the HOA. (At the time, no attorney’s fee provision existed in Arizona’s excess proceeds statutes. Amended soon after.)
  • 4. Case Study Facts – Continued
    • The IRS assessed the income taxes on January 1, 2002.
    • Note : “assessment” of income taxes is different than recording or “filing” the notice of lien.)
    • The HOA’s annual assessment was payable in monthly installments, due the first of each calendar month.
    • Note : Under Arizona law, the full amount of the annual assessment was a lien from the time the first installment of the annual assessment became due, i.e., January 1, 2002 .
    • The IRS recorded its Notice of Lien in county on February 11, 2002.
  • 5. “ Other” Facts
    • HOA’s manager recorded a Notice of Claim of Lien on December 18, 2002 (foreclosure was one year later in December 2003).
    • HOA’s ledger for determining amount owing at time of foreclosure sale started with a “balance forward” on June 1, 2002, without any support for that balance calculation.
    • Backing out assessment charges based on balance forward, manager provided affidavit testifying that assessments had been delinquent for at least 23 months prior to June 1, 2002 (or back to July, 2000 – before income taxes were assessed).
    • The affidavit was not accepted as evidence, but the balance forward was not contested.
  • 6. Quick Review
    • Around July 2000: homeowner stops paying assessments.
    • January 1, 2002: first monthly installment of HOA’s annual assessment comes due.
    • January 1, 2002: IRS assesses income taxes to homeowner.
    • February 11, 2002: IRS records Notice of Tax Lien in Maricopa County, Arizona.
    • December 17, 2003: Trustee’s sale.
      • Excess proceeds of more than $10,000 result from the sale
      • HOA claims a lien for $5,900 (recording date of CC&R’s in 1973)
      • IRS claims lien of $75,000
    • WHO WINS? – WHY?
  • 7. The Trial Court : Holding
    • At oral argument, the trial court ruled from the bench in favor of the HOA finding:
      • the HOA’s lien was a “ perfected security interest ” with priority over the IRS lien (i.e., lien secured by real property, contrast to “security interest” in goods or fixtures under the UCC);
      • granted petition for full amount of lien, but denied attorney fees to HOA; and
      • stated on the record that he “sincerely hoped” one of the parties would appeal the case to allow the Arizona appellate courts to resolve the issue “once and for all”.
      • The IRS appealed …
  • 8. Arizona Court of Appeals : Analysis
      • “ The pivotal question is whose lien on the property takes priority [which presents] ‘a question of both federal and state law.’ Whereas state law controls the determination of the nature of the property interest a taxpayer held in property, federal law governs the determination of the priority of competing liens on that property.” […]
      • “ Arizona law provides that a homeowners' association has a lien on a unit for any assessment levied from the time that the assessment comes due . When an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment becomes due .” […] A.R.S. § 33-1256(A).
      • “ Under Arizona law, ‘[r]ecording of the declaration constitutes record notice and perfection ," of the Association's lien and ‘ [f]urther recordation of any claim ... is not required .’ Accordingly, the Association's lien became perfected for purposes of state law on February 28, 1973 with the declaration's recording.” A.R.S. § 33-1256 (E).
      • STATE LAW : HOA Lien arises when it comes due and attaches as of the date the first installment payment is due. HOA lien is perfected as of the date the CC&R’s are recorded.
  • 9. Comparing the UCIOA : Lien arises , attaches and is perfected .
    • 3-116 Lien for Assessments
    • The association has a statutory lien on a unit for any assessment levied against that unit or fines imposed against its unit owner […] If an assessment is payable in installments, the lien is for the full amount of the assessment from the time the first installment thereof becomes due .
    • […]
    • (d) Recording of the declaration constitutes record notice and perfection of the lien . No further recordation of any claim of lien for assessment under this section is required .
    • AZ LAW AND UCIOA : Same Result
  • 10. Arizona Court of Appeals : Applying the Facts
    • HOA’s lien rights “accrued” when the assessments became delinquent.
    • The HOA’s lien was an “annual assessment” payable in monthly installments.
    • The HOA lien was “perfected” as of 1973 when the CC&R’s were recorded.
    • In these circumstances, the HOA has a perfected lien that attaches as of January 1 of every year for the full amount of the annual assessment.
  • 11. Arizona Court of Appeals : Analysis Continued
    • Generally, once the assessment becomes due, the lien may then be collected. A n HOA’s right to collect assessments accrues when the assessments are either due or delinquent. However, an HOA’s lien priority among other liens is tied to its perfection date (recording date of the CC&R’s) and not the delinquency or due date.
    • Circumstances triggering the right to collect assessments has been confused with lien priority. In 1994, the UCIOA was amended substituting the word “due” for “delinquent.”
    • The previous language, adopted by several states, was frequently construed to give priority to an HOA lien as of the date the assessment became due or delinquent, as opposed to the recording date of the CC&R’s.
    • In comments to the 1994 revisions, the drafters of the UCIOA clarified the intent that substituting the word “due” for “delinquent” intended to specify that an HOA’s right to collect is neither determinative for establishing priority of its lien, nor the assessment “due” date. Thereafter, many states adopted similar revised statutes substituting the word “due” for “delinquent” in the Act.
  • 12. Arizona Court of Appeals : Analysis Continued
    • “ Section 6321 grants a lien on all personal and real property to the United States if any person fails to pay required taxes . This lien ‘shall arise’ when an assessment is made. 26 U.S.C. § 6322. But, this lien. ‘ shall not be valid as against any purchaser , holder of a security interest , mechanic's lienor , or judgment lien creditor until notice thereof … has been filed, by the Secretary .’ 26 U. S.C. § 6323(a).
    • […]
    • “ In order to take priority under these statutory provisions over the IRS' lien, the Association's lien must be a ‘ security interest ’ as defined above and it must arise prior to the IRS' filing of notice.”
    Q: Is an HOA lien a “ security interest ”?
  • 13. Court of Appeals : Analysis
    • “ The trial court held that the Association's lien was a security interest that had priority over the IRS' lien, and the Association urges us to reach the same conclusion on appeal.
    • The Arizona Supreme Court, however , in United States v. Globe Corp ., 113 Ariz. 44, 546 P.2d 11 (1976), has seemingly precluded such a finding under these circumstances . In determining the priority between a landlord's statutory lien and an IRS lien , the court unequivocally stated that ‘[a] lien which is not protected as a security interest by the Uniform Commercial Code is not a security interest within the meaning of § 6323 (a) of the Federal Tax Lien Act.”
    • This is a “correct” statement … but is it correct?
  • 14. Court of Appeals : Holding
    • “ Applying this language, the Association's lien can be a ‘ security interest’ under § 6323(a) of the Federal Tax Lien Act only if it is protected as a security interest by the Uniform Commercial Code.”
  • 15. Court of Appeals – Continued
    • FOOTNOTE :
    • “ Our review of the language of' the Federal Tax Lien Act leads us to respectfully disagree with the narrow interpretation of ‘security interest’ applied in 1976 by our supreme court in Globe . We do not think that ‘security interests’ under the Federal Tax Lien Act are limited to UCC security interests. [Citations omitted referencing and recognizing ‘security interests’ in real property and the conflicts that existed between recognized “security interests” in real property and fixtures in the UCC prior to 1972.]
    • But we are bound by decisions of the Arizona Supreme Court and have no authority to overrule, modify, or disregard them . Whether prior decisions of the Arizona Supreme Court are to be disaffirmed is a question for that court . City of Phoenix v. Leroy's Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d. 958, 961 (App. 1993) (citations omitted). We thus follow and apply the language of our supreme court in Globe, while also respectfully inviting the supreme court to reconsider this issue .”
  • 16. … on to the Arizona Supreme Court
    • Petition for Review filed …
  • 17. Arizona Supreme Court
    • REVIEW DENIED
    • Court of Appeals issued unpublished Memorandum Decision.
    • Analysis divided into two issues:
      • (1) security interest analysis; and
      • (2) choate doctrine
    • IRS moved for publication. Court of Appeals denied motion. (Didn’t want to make “bad law”???)
    • Still no case law in Arizona.
    • No case law in other jurisdictions.
  • 18. Applicable Law : State and Federal
    • “ Whereas state law controls the determination of the nature of the property interest a taxpayer held in property, federal law governs the determination of the priority of competing liens on that property.”
    • State Law : the nature of the interest in the property (i.e., whether it is a lien, how it arises, attaches and is perfected)
    • Federal Law (IRS Tax Lien Code): whether the interest has priority over a competing tax lien
  • 19. I.R.C. § 6322 – Lien for Taxes (26 U.S.C. § 6322)
    • “ Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time.”
  • 20. I.R.C. § 6323 – Priority Without Notice Filed (26 U.S.C. § 6323)
    • Purchasers, holders of security interests, mechanic’s lienors, and judgment lien creditors
    • The lien imposed by section 6321 shall not be valid as against any purchaser , holder of a security interest , mechanic’s lienor , or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary.
    This protects subsequent secured creditors falling within these specific categories from a "secret tax lien” in which the creditor would have no notice.
  • 21. I.R.C. § 6323(f) Process for “Perfecting” Tax Lien
    • (f) Place for filing notice; form
    • (1) Place for filing
    • The notice referred to in subsection (a) shall be filed—
      • (A) Under State laws
      • Real property : In the case of real property, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated;
      • […]
      • (2) Situs of property subject to lien
      • For purposes of paragraphs (1) and (4), property shall be deemed to be situated—
      • (A) Real property: In the case of real property, at its physical location
  • 22. I.R.C. § 6323 – Priority Without Notice Filed
    • SENATE REPORT NO. 89-1708 110*:
    • Purchasers and judgment creditors (which has been interpreted as meaning judgment 'lien' creditors), as well as mortgagees and pledgees (which under the bill are included as holders of security interests ), already have this priority status under present law. […]
    • Although so-called purchase money mortgages are not specifically referred to under present law, it has generally been held that these interests are protected whenever they arise. […]
    • The substitution of 'holder of a security interest' for 'mortgagee' and 'pledgee ' replaces the latter terms with a more general term used in the Uniform Commercial Code. More important, however, it is intended that, under the bill, the various types of interests defined in this provision are to have a priority over a nonfiled Federal tax lien if they come within the definitions of these terms whether or not in all other regards they are definite and complete at the time notice of the tax lien is filed.
    • S. Rep. No. 1708, 89TH Cong., 2ND Sess. 1966; 1966 U.S.C.C.A.N. 3722; 1966 WL 4161 (Leg.Hist.) (October 11, 1966).
  • 23. I.R.C. § 6323 – Priority Without Notice Filed
    • SENATE REPORT NO. 89-1708 110:
      • Purchasers and judgment creditors (which has been interpreted as meaning judgment 'lien' creditors), as well as mortgagees and pledgees ( which under the bill are included as holders of security interests ), already have this priority status under present law .
  • 24. Liens without Notice, Security Interests and Superpriority Liens … Where do HOA Liens fit in?
    • SENATE REPORT NO. 89-1708 110:
    • “ [T]he bill adds to the 'superpriority' status accorded to certain interests in securities and motor vehicles an additional eight categories of interests in properties which are to be effective as against a tax lien , even though notice of the lien has been filed .
    • […]
    • There may be some overlapping among categories of 'superpriorities.' In such cases, protection is to be granted if any category applies , even though another may also be relevant.
  • 25. I.R.C. § 6323 – Superpriority Liens
    • (b) Protection for certain interests even though notice filed:
    • Even though notice of a lien imposed by section 6321 has been filed, such lien shall not be valid—
      • Securities,
      • Motor vehicles,
      • Personal property purchased at retail,
      • Personal property purchased at a casual sale,
      • Personal property subject to a possessory lien,
      • Real property tax and special assessment liens,
      • Residential property subject to a mechanic’s lien for “small” repairs and improvements (under $5,000) (must be owner occupied, not more than four units)
      • Attorneys’ liens,
      • Certain insurance contracts,
      • Deposit-secured loans,
      • Commercial transaction finance agreements,
      • Real property construction or financing agreement, and
      • Obligatory disbursement agreement
      • Accruing interest, charges, expenses, attorney fees, expenses, repair and upkeep costs or similar expenses to maintain the secured property, so long as under local law these items are afforded the same priority as the lien or security interest to which it relates
      • Why are these afforded “superpriority”? What is missing??? Why???
  • 26. I.R.C. § 6323 – Superpriorities: Property Taxes
    • SENATE REPORT NO. 89-1708 110:
    • As a practical matter, real property taxes and special assessments imposed by local governmental authorities presently limit the value of the security real property affords to Federal tax liens. This occurs because a purchaser cannot take the property free of these local liens. Consequently, any tax sale purchaser could be expected to take into account in his bid any outstanding local property taxes and special assessments. This situation is recognized in the bill and priority is given to these taxes and assessments even as against a filed Federal tax lien. However , the priority is provided only where local law gives similar priority to real property taxes and assessments as against holders of security interests.
  • 27. I.R.C. § 6323 – Superpriorities: Mechanics Liens
    • SENATE REPORT NO. 89-1708 110:
    • “ Your committee believes that it is unreasonable to expect construction workers or contractors to search for filed tax liens prior to undertaking small repair and improvement work. It is believed that such a person should be permitted to rely upon the authority of an owner, who occupies his own residence, to contract for reasonable repairs and improvements to that residence without fear that his mechanic's lien will be defeated by a pre-existing tax lien. Here, too, the work is likely to add to the value of the property and, therefore, increase the Government's chances of collection. As a result, the bill grants protection against a Federal tax lien , even where notice has been filed, in situations where the applicable local law grants a mechanic's lien [with limitations: Owner occupied, not more than 4 residential units, for amount of $5,000 or less].
    • A mechanic is considered to have this lien under the bill as of the time the mechanic begins to furnish services, labor or materials, or, if later, the time when his lien is effective under local law . This protects mechanics under most State laws, where the mechanic's lien arises as of the time when the mechanic commences his labor or begins supplying material, even though he does not perfect his lien ( such as by filing or by securing a judgment) until long after this time .
  • 28. I.R.C. § 6323 – Superpriorities: Finance/Improvement Agreements
    • SENATE REPORT NO. 89-1708 110
    • The types of financing agreement covered are generally those involving disbursements to an owner of a property for the construction or improvement of real property, or to a builder for a contract to construct or improve real property, […] Your committee's bill give priority in the case of security interests arising from disbursements for these purposes even though a notice of a tax lien has been filed because (as in the case of some of the superiority categories) the disbursements generally enhance the value of the property for purposes of the tax lien . It is believed that such a person should be permitted to rely upon the authority of an owner, who occupies his own residence, to contract for reasonable repairs and improvements to that residence without fear that his mechanic's lien will be defeated by a pre-existing tax lien. Here, too, the work is likely to add to the value of the property and, therefore, increase the Government's chances of collection.
  • 29. I.R.C. § 6323 – Superpriorities: interest, attorney’s fees, and charges relating to lien
    • SENATE REPORT NO. 89-1708 110
    • “ The bill also provides a priority over filed tax liens for interest with respect to, and certain other costs of preserving property underlying , a lien or security interest which is superior to a Federal tax lien . For this priority to exist, however, a local law must also provide this interest or expense the same priority as the lien or security interest to which it relates. […] These interest charges and expenses arise out of a lien or security interest having priority over the Federal tax lien, and your committee believes that, although they are not fully determinable as of the time notice of the Federal tax lien is filed , nevertheless, they should be given priority since they relate to a lien or security interest having such a priority.”
    • These specifically include:
      • Interest or carrying charges
      • Reasonable expenses
      • Reasonable expenses in collecting and enforcing a secured obligation (including attorney's fees)
      • Reasonable cost preserving or repairing the property
  • 30. I.R.C. § 6323(h) “Security Interest” Defined
    • For purposes of this section and section 6324
    • (1) Security interest The term “security interest” means any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time
      • (A) if, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and
      • (B) to the extent that, at such time, the holder has parted with money or money’s worth.
  • 31. UCIOA – “Security Interest” Defined
    • Section 1 – 103 Definitions
    • (28) " Security interest " means an interest in real estate or personal property, created by contract or conveyance, which secures payment or performance of an obligation . The term includes a lien created by a mortgage, deed of trust, trust deed, security deed, contract for deed, land sales contract, lease intended as security , assignment of lease or rents intended as security, pledge of an ownership interest in an association , and any other consensual lien or title retention contract intended as security for an obligation .
  • 32. Federal Case Law “Security Interest” Defined
    • In re Beckley, 210 B.R. 391 (M.D. FI. 1997):
    • "Declaration of Covenants, Conditions and Restrictions creates a security interest in the debtor's property for unpaid assessments.”
    • In re Bland, 91 B.R. 421 (N.D. Ohio 1988):
    • “ Assessments payable to a condominium association pursuant to a Declaration is a 'security interest.’”
    • In re Robinson, 231 B.R. 30 (D.N.J. 1997):
    • “ As a preliminary matter, we find that the proper characterization of the Association's lien is as a security interest. The Association argues at different points in its briefs that its interest is a security interest and then later that it is a statutory lien. The confusion occurs because the Association's lien is supported both by the Association's [declaration] and by state law.”
  • 33. IRS Tax Code, UCC and UCIOA: Historical Perspective
    • UNIFORM COMMERCIAL CODE (UCC) :
      • 1952 Official Text (first draft by The National Conference of Commissioners on Uniform State Laws (“Commissioners”); many subsequent revisions adopted
      • 1972 Revised Article 9 (Secured Transactions)
      • 1977 Revised Article 8 (Investment Securities)
      • 1988 Revised Article 3 (Negotiable Instruments)
    • IRS TAX CODE : Federal Tax Lien Act of 1966
    • UNIFORM CONDOMINIUM ACT : 1980
    • UNIFORM PLANNED COMMUNITY ACT : 1980
    • UNIFORM COMMON INTEREST OWNERSHIP ACT (UCIOA) :
      • 1982 First adopted (combined prior uniform laws in this area, including the Uniform Condominium Act (1980), the Uniform Planned Community Act (1980), and the Model Real Estate Cooperative Act (1981)).
      • 1991 Amended.
      • 1995 at least six (6) states had substantially adopted the UCIOA, and twenty-one (21) states had substantially adopted laws similar to the Uniform Condominium Act.
    • PROLIFERATION OF HOA’s :
      • 1970 – 2 million Americans lived in common interest communities
      • 2006 – 57 million, or 19% of the American population lived in common interest communities ( See Hyatt, Wayne S., and Susan F. French. Community Association Law: Cases and Materials on Common Interest Communities (2 nd Ed.) (North Carolina; Carolina Academic Press, 2008)
  • 34. IRS Tax Code, UCC and UCOIA : Historical Perspective
    • SENATE REPORT NO. 89-1708 110
    • Under the Commercial Code, priority now is afforded new types of commercial secured creditors not previously protected. This bill is in part an attempt to conform the lien provisions of the internal revenue laws to the concepts developed in this Uniform Commercial Code. It represents an effort to adjust the provisions in the internal revenue laws relating to the collection of taxes of delinquent persons to the more recent developments in commercial practice ( permitted and protected under state law ) and to deal with a multitude of technical problems which have arisen over the past 50 years.
    • […]
    • This bill substantially improves the status of private secured creditors . This is accomplished, first, by expanding the categories of creditors protected as against a nonfiled tax lien to include a mechanic's lienor. Second, various types of secured creditor interests already having, or given, priority status over tax liens are specifically defined , and it is provided that where those interests qualify under the definitions they are to be accorded this priority status whether or not they are in all other respects definite and complete at the time notice of the tax lien is filed .”
  • 35. IRS Tax Code, UCC and UCOIA : Historical Perspective
    • FL Receivables Trust 2002-A v. Ariz. Mills, L.L.C ., 210 Ariz. 388, 390, 110, 111 P.3d 430, 432 (App. 2005) (acknowledging ‘security interests in real property’ conflict in the UCC prior to 1972)
    • “ To understand the rules for creating an interest in fixtures, we must look to the history of the U.C.C. Prior to 1972, the U.C.C. provisions regarding the priority of security interests in fixtures were problematic. The code conferred security interests in real property without using the real property recording system. As a result, a lender or buyer of real property might be subject to a U.C.C. security interest even though the real property records revealed no such interest. […] This changed when the drafters adopted the current U.C.C. text in 1972, which was later enacted in Arizona in 1999. See A.R.S. § 47-9334. The amendment addressed the conflict between the two systems by generally requiring real property recordation for ‘fixture filings.’ ‘In cases not governed by subsections D through H of this section, a security interest in fixtures is subordinate.’”
  • 36. The Choate Doctrine: “The first in time is the first in right.”
    • “ Having determined that the Association's lien is not entitled to priority over the IRS' lien on the basis of the Federal Tax Lien Act, we turn now to the question of choateness …”
    • If the HOA lien is not considered a “security interest” (or other specified protected lien “without notice”), and if it does not fall within a specified “superpriority lien” under the tax lien code, then the analysis turns to:
    • 1) Perfection of the respective liens based upon the timing of the assessment and perfection of the IRS tax lien, and
    • 2) The respective amounts owing of each lien at that time.
    • The HOA lien may potentially be divided into two (2) portions: (1) that amount which can be determined due and owing as of the tax lien assessment date (the “choate” portion of the lien), and (2) the amounts accruing thereafter, or the “inchoate” portion of the lien.
  • 37. The Choate Doctrine: Continued
    • TEST : All of the following must be established to be “choate”:
    • (1) The identity of the lienor (association as per CC&R’s)
    • (2) The identity of the property subject to the lien, and
    • (3) The amount of the lien must be established (a sum certain as of a specific date, no accruing amounts are included).
      • Once a lien is choate, ‘the first in time is the first in right.” See United States v. City of New Britain, 347 U.S. 81, 85 (1954) ( quoting Rankin v. Scott, 25 U.S. (12 Wheat.) 177, 179 (1827)).
      • Even if a lien is perfected for all state purposes, it may not be "choate" for the purpose of establishing priority under federal law. See United States v. Acri, 348 U.S. 211, 213 (1955); see also, Rice Inv. Co. v. United States 625 F.2d 565, 572-73 (5th Cir. 1980) (Fifth Circuit held that a lender's security interest was not sufficiently choate under federal law despite “doing all it could do ... to secure its interest’ under state law.”)
  • 38. The Choate Doctrine: Continued
    • “ Although the Association's lien was perfected under state law, on this record we cannot say as a matter of law whether the Association's lien was choate prior to the time the IRS lien arose. […] According to federal case law, the amount of the lien must be established beyond any possibility of change or dispute.
    • We must therefore remand this matter for the determination of factual questions pertaining to whether and when the Association's lien became choate. On the record before us, it appears that the identity of the lienor and the identity of the property subject to the lien may be undisputed. However, the amount of the lien must be established in order for it to be considered choate .”