Montana Attorney General Opinion 15-481

Opinion No. 481. Bankruptcy-Taxation-Ta."\:es--Lien of-Priority of. HELD: Section 2153, R. C. M., 1921, as amenlled, makes every tax a prior OPIXIOXS OF THE ATTORXEY GE~EHAL 331 lien upon the personal property taxed as well as a lien on the real property of thc owner, and such lien takes prece- dence over a valid mortgage_ Bankruptcy will not defeat a tax lien_ Therefore, since the tax lien takes precedence ove1' a mortgage lien in this ~tate, the county may not refund to the referee in bankruptcy the money paid to the countr for taxes due from, and . pa id b~-, the bankrupt. March 2, 1934. ·We acknowledge receipt of yours of the 27th ult., in which you ad\'ise that the referee in bankruptcy asks for the return of the money paid to Cascade County on a claim for taxes due from the estate of Theodore Dullum, bank- rupt. The referee requests the return of the money on the ground that cer- tain labor claims against the estate arc entitled under the hankrupt law to pri- ority O\'er the claim of Cascade County for taxes. No doubt the referee construes Sec- tion (;4a and h of the Bankrupt Act re- lating to priorities as supporting his request. 'Ve question the correctness of such construction. The priorities referred to in Section 64a and b apply only in the absence of valid liens. Section 2153 R. C. M. 1921, as amend- ed by Chapter 182, J~aws of 1933, makes every tax a prior lien upon the person- al property taxed as well as a lien on the real property of the owner. Such lien a ttaches to the land and takes precedence over a va lid mortgage. Cer- tainly no one will contend that the bankruptcy court can exercise any such control over the bankrupt estate that will defeat the mortgage lien. The tax lien is superior to the mortgage lien. In states where taxes are not made a lien on the property assessed then the priorities for ccrtain wages provid- ell for in the Bankl'Upt Act referred to appear to take precedence oyer claims for taxes, but not otherwise. (See Lit- tle v. Peyton, 54 Fed. (2) 678 and City of 'l'ampa v. Commercial Building Co., 54 )j'ed. (2) 1057 and other cases under Key Number 346, Bankruptcy.) It seems to us that the obvious posi- tion for you to take is to deny the re- quest and let the referee or trustee bring an action if they desire to test the matter.