First Virginia Bank v. O'LEARY

Present:       All the Justices

FIRST VIRGINIA BANK

v.   Record No. 950149        OPINION BY JUSTICE BARBARA MILANO KEENAN
                                              March 1, 1996
FRANCIS X. O'LEARY,
ETC., ET AL.

                FROM THE CIRCUIT COURT OF ARLINGTON COUNTY
                          Paul F. Sheridan, Judge


      In this appeal, we determine whether state and local taxing

authorities are bound by Code § 6.1-125.3(D), which requires

creditors seeking funds from a joint bank account to obtain a

summons notifying nondelinquent owners of the account of "an

order of garnishment, attachment or other levy" addressed to that
           1
account.

      1
       Code § 6.1-125.3(D) provides, in relevant part:

           Upon an order of garnishment, attachment or other
      levy addressed to a party to a joint account . . . the
      financial institution shall file an answer setting
      forth the form of account, whether it has funds
      responsive to the process, and such information as it
      has as to the names and addresses of the parties to the
      account. The financial institution shall by first-
      class mail send a copy of such answer to the
      petitioning creditor or counsel of record. From the
      time of service of such garnishment, attachment or
      levy, the financial institution shall hold the amount
      subject to such garnishment, attachment or levy, or
      such lesser amount or sum as it may have, which amount
      shall be set forth in its answer. . . . If the
      petitioning creditor shall desire to pursue the
      question of ownership of such funds held subject to the
      claim of two or more parties to the deposit account, it
      shall provide the clerk with a copy of the documents
      originally served on the original defendants or
      judgment defendants and request the clerk to issue a
      summons accompanied by such copy with a copy of the
      notice at the end of this subsection. Upon payment of
      the appropriate fees, the clerk shall issue such
      summons to be served on such other party having an
      interest or apparent interest in such account. . . .
      If such summons is received either by certified or
     The facts before us are undisputed and arise from three

cases that were consolidated for purposes of this appeal.      First

Virginia Bank (the Bank) appeals two judgments in favor of the

Commonwealth of Virginia, Department of Taxation (the

Department), and one judgment in favor of Francis X. O'Leary,

Arlington County Treasurer (the Treasurer).

     The Department, pursuant to Code § 58.1-1804, issued a

"notice of tax lien and demand for payment" to the Bank to

satisfy unpaid taxes owed by two taxpayers. 2 The Deputy
(..continued)
     registered mail or acknowledged in writing within
     twenty-one days on or by such financial institution, it
     shall continue to hold such funds pending further order
     of the court. If such financial institution shall not
     within twenty-one days from the filing of such answer
     be served with or acknowledge such an order, it may
     treat the garnishment, attachment or levy, insofar as
     it relates to such joint . . . accounts, as terminated
     on the twenty-second day and being of no further force
     or effect. . . . The notice to the co-depositor
     described in this subsection shall contain
     substantially the following information: "Attached is
     a copy of the documents served on a financial
     institution to cause it to withhold money from an
     account in which you may have an interest. If you wish
     to protect your interests, you or your attorney should
     take appropriate legal action promptly."

     2
      Code § 58.1-1804 provides, in relevant part:

          The Tax Commissioner may apply   in writing to any
     person indebted to or having in his   hands estate of a
     taxpayer for payment of any taxes .   . . more than
     thirty days delinquent, out of such   debt or
     estate. . . .

          The Tax Commissioner shall send a copy of the
     application to the taxpayer, with a notice informing
     him of the remedies provided in this chapter.

          If the person applied to does not pay so much as



                              - 2 -
Treasurer, pursuant to Code § 58.1-3952(A), issued a "notice of

tax lien and demand for payment" to the Bank to satisfy

delinquent personal property taxes owed by one holder of a joint

account. 3   Each of three delinquent taxpayers held an account at

the Bank jointly with a nondelinquent holder.    Since the Bank did

not receive notice that the nondelinquent joint account holders

had been served with notice pursuant to Code § 6.1-125.3(D), the

Bank refused to comply with these demands for payment.
     The Department and the Treasurer (collectively, the

Department) filed pleadings in the trial court alleging that the

Bank's refusal to release the funds violated Code §§ 58.1-1804
(..continued)
     ought to be recovered out of such debt or estate, the
     Tax Commissioner shall procure a summons directing such
     person to appear before the appropriate court, where
     the proper payment may be enforced. Any person so
     summoned shall have the same rights of removal and
     appeal as are applicable to disputes among individuals.

     3
      Code § 58.1-3952(A) provides, in relevant part:

          The treasurer or other tax collector of any county
     . . . may apply in writing to any person indebted to or
     having in his hands estate of a taxpayer for payment of
     taxes more than thirty days delinquent out of such debt
     or estate. . . . The taxes, penalties and interest
     shall constitute a lien on the debt or estate due the
     taxpayer from the time the application is
     received. . . . The treasurer or collector shall send
     a copy of the application to the taxpayer, with a
     notice informing him of the remedies provided in this
     chapter.

          If the person applied to does not pay so much as
     ought to be recovered out of the debt or estate, the
     treasurer or collector shall procure a summons
     directing such person to appear before the appropriate
     court, where proper payment may be enforced.



                                - 3 -
and -3952, respectively.   The trial court ruled that the notice

provisions of Code § 6.1-125.3(D) do not apply to tax liens

issued under Code §§ 58.1-1804 and -3952.   The trial court also

ruled that there is a presumption that all joint account holders

own an account in equal shares, and that the Treasurer and the

Department had "a right to the funds in the account equal to that

of delinquent taxpayer joint depositor."    Based on these rulings,

the trial court ordered the Bank to comply with the demands for

payment in the amount of the tax liens or 50% of the funds on

deposit, whichever amount was less.    This appeal followed.
     The issue before us is one of first impression.    The Bank

argues that each tax lien at issue is an "other levy" within the

meaning of Code § 6.1-125.3(D).   The Bank also asserts that,

since the taxing statutes do not specifically address the

imposition of a tax lien on a joint bank account, the notice

provisions of Code § 6.1-125.3(D) govern that procedure.

     In response, the Department argues that Code § 6.1-125.3(D)

does not apply to a tax lien, which is a type of administrative

process.   It asserts that the statute applies to judicial process

only, as demonstrated by the language "an order of garnishment,

attachment or other levy."   We agree with the Department.

     In determining whether the phrase "order of garnishment,

attachment or other levy" includes the tax liens at issue, we

consider the entire text of Code § 6.1-125.3(D).   "A cardinal

rule of statutory construction is that a statute be construed




                               - 4 -
from its four corners and not by singling out a particular word

or phrase."     Commonwealth Natural Resources, Inc. v.

Commonwealth, 219 Va. 529, 536, 248 S.E.2d 791, 795 (1978).

Further, a legislative enactment "should be interpreted, if

possible, in a manner which gives meaning to every word."

Monument Assoc. v. Arlington County Bd., 242 Va. 145, 149, 408

S.E.2d 889, 891 (1991).

     We also construe Code § 6.1-125.3(D) with reference to Code

§§ 58.1-1804 and -3952.    We accord each statute, insofar as

possible, a meaning that does not conflict with the other

statutes.     See Albemarle County v. Marshall, Clerk, 215 Va. 756,

761, 214 S.E.2d 146, 150 (1975).

     The requirements of Code § 6.1-125.3(D) arise entirely

within the context of judicial proceedings.       This section

requires a financial institution to "file an answer" on receipt

of "an order of garnishment, attachment or other levy." 4        The


     4
      The process that issues to a third party in a garnishment

proceeding is termed a "summons."        See Code § 8.01-511.    The

process which issues against specific property in an attachment

proceeding is termed an "attachment."        See Code § 8.01-540.      We

conclude that these types of process are covered by the language

of Code § 6.1-125.3(D), because the two phrases, "garnishment,

attachment or levy" and "order of garnishment, attachment or

other levy," are used interchangeably in Code § 6.1-125.3(D).




                                 - 5 -
institution must also mail a copy of its answer to the

petitioning creditor or "counsel of record."

     The Bank's position would require us to find that the term

"file" means nothing more than "send."   However, throughout the

Code and the Rules of Court, the term "file" is used to convey

the act of lodging pleadings and notices with the clerk of the

court.   See, e.g., Code §§ 8.01-73, -229; Rule 1:4.   The Bank's

argument also overlooks the fact that Code § 6.1-125.3(D)

requires the financial institution to send a copy of its answer

to the petitioning creditor or to counsel of record.   The Bank's

position would make this requirement an unnecessary act, since

the Bank sent its answer directly to the petitioning creditor.
     We also observe that the term "counsel of record" has a

specific meaning when used in the Code and the Rules of Court.

Rule 1:5 defines this term as including "a counsel or party who

has signed a pleading in the case or who has notified the other

parties and the clerk in writing that he appears in the case."

Thus, the use of the above terms in Code § 6.1-125.3(D) indicates

that a court action has been initiated, and that a response to

court-issued process is required.

     Code § 6.1-125.3(D) also stipulates procedures which involve

action by the clerk of the court.   If the petitioning creditor

wishes to pursue the question of ownership of jointly-held funds,

the creditor must request the clerk to issue a summons and a

notice to the co-depositor.   Before a summons will be issued by



                               - 6 -
the clerk, the creditor must also provide the clerk with a copy

of the documents "originally served on the original defendants or

judgment defendants."   This language indicates that a prior

adjudication involving the account holder has occurred, forming

the basis for the garnishment, attachment or other levy.

     If the financial institution receives or acknowledges within

21 days a copy of the summons issued by the clerk, the financial

institution is required to hold the funds requested pending

"further order of the court."    (Emphasis added.)   By implication,

this language presupposes that prior court process has issued.

     In contrast, judicial action is not required for the

issuance of a "Notice of Tax Lien and Demand for Payment" under

Code §§ 58.1-1804 and -3952.    These tax liens are administrative

process issued by authority of the Tax Commissioner, under Code

§ 58.1-1804, or by the "treasurer or other tax collector of any

county, city or town," under Code § 58.1-3952.

     In these statutes, the person owing the tax is referred to

as the "taxpayer," not the "defendant."   Thus, while Code

§ 6.1-125.3(D) requires the petitioning creditor to provide the

clerk with a copy of the documents originally served on "the

original defendants or judgment defendants," there is no party in

Code §§ 58.1-1804 and -3952 who can be identified by these terms.

     Based on these distinctions, we conclude that the

legislature did not intend that Code § 6.1-125.3(D) apply to the

receipt of administrative process by a financial institution.



                                - 7 -
Therefore, we hold that the Department is not subject to the

requirements of Code § 6.1-125.3(D) when it issues a notice of

tax lien and demand for payment to a financial institution which

has in its possession funds owned by a delinquent taxpayer in a

joint bank account.

        Nevertheless, the Bank contends that the due process rights

of the nondelinquent co-depositors were violated by the taxing

statutes.      We do not reach this issue, however, because the Bank

lacks standing to assert the due process rights of another.       See

Valley Forge Christian College v. Americans United for Separation

of Church and State, Inc., 454 U.S. 464, 471-73 (1982).

Therefore, we do not decide here the question whether Code

§§ 58.1-1804 and -3952 provide nondelinquent joint account

holders remedies sufficient to protect their due process rights. 5


        5
         We also note that the parties agree the trial court erred

in ruling there is a presumption that all joint account holders

own an account in equal shares.      See Code § 6.1-125.3(A).   Based

on this ruling, the trial court limited the Bank's obligation to

comply with the demands for payment to the amount of the tax

liens or 50% of the funds in the account, whichever amount was

less.       However, we do not further address this ruling, because

the Department has not assigned cross-error to the ruling and the

Bank lacks standing to assert the rights of the nondelinquent co-

depositors.



                                   - 8 -
     For these reasons, we will affirm the trial court's

judgment.

                                                           Affirmed.




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