Chapter 10-1 PRAIRIE BAND POTAWATOMI TAX COMMISSION DESIGNATED AS TAXING AUTHORITY

CHAPTER 10-1
PRAIRIE BAND POTAWATOMI TAX COMMISSION DESIGNATED AS TAXING AUTHORITY

10-1-1 Purpose.

It is necessary and essential to the preservation of the Nation as a sovereign government to strengthen tribal government by licensing and regulating certain conduct within the tribal jurisdiction, and by providing financing for the maintenance and expansion of the Nation’s tribal government operations and services in order for the Prairie Band Potawatomi Nation to efficiently and effectively exercise its confirmed governmental responsibilities within the Indian Country subject to its jurisdiction. The purpose of this title is to provide simple, fair, straightforward and efficient procedures for the licensing and regulating of certain conduct, and the levy and collection of certain taxes.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-2 Taxing Powers Vested in Tax Commission.

(A) The Prairie Band Potawatomi Tax Commission is hereby granted all powers, duties, rights and functions hereinafter defined with respect to the implementation, administration and enforcement of tribal tax laws.

(B) The Prairie Band Potawatomi Tax Commission shall consist of three (3) members, who shall be appointed by the Tribal Council. The term of each Commission member shall be for a period of four (4) years; provided however that the term of any Commission member who is also a Tribal Council member shall expire if such Commission member’s Tribal Council term expires.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-3 Seal.

The Prairie Band Potawatomi Tax Commission is authorized and directed to acquire and use a seal which shall be circular in form with the words “Prairie Band Potawatomi Tax Commission” around the edge thereof, and the word “seal” in its center. The seal shall be impressed upon the originals or certified copies of all licenses, orders, rules, and other official documents of the Commission as evidence of their authenticity and authority.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-4 General Taxing Powers of the Tax Commission.

The Tax Commission shall generally be charged with the implementation, administration and enforcement of all the tribal tax laws. Incidental to the administration or enforcement of the tribal tax laws, the Tax Commission shall have the power to:

(A) Assess, estimate, file liens, collect, and issue receipts for such taxes as are imposed by law and to bring actions on behalf of the Nation in the Tribal Court for the collection of tribal taxes, penalties and interest, and the enforcement of the tribal tax laws. All such actions shall be styled: Prairie Band Potawatomi Nation vs. ____________;

(B) Administer oaths, conduct hearings, and, by subpoena to compel the attendance of witnesses and the production of any books, records, and papers of any taxpayer relating to the enforcement of the tribal tax laws;

(C) Make, or cause to be made by its agents or employees, an examination or investigation of the place of business, equipment, facilities, tangible personal property, and the books, records, papers, vouchers, accounts, documents, and financial statements of any taxpayer, upon reasonable notice, during normal business hours, at any other time agreed to by said taxpayer, or at any time pursuant to a search warrant signed by the Tribal Court;

(D) Examine, under oath, either orally or in writing any taxpayer or any agent, officer, or employee of any taxpayer, or any other witness in respect to any matter relative to the tribal tax laws;

(E) Exercise all other authority delegated or conferred upon it by law, or as may be reasonably necessary in the administration or enforcement of any tribal tax laws;

(F) Either before or after commencement of an action for the recovery of taxes, penal-ties, and interest due the Nation, but prior to final judgment thereon, compromise and settle such claims for an amount less than the total amount due, provided that such compromise and settlement shall be approved by the Tax Commission only when, in its judgment, such action is in the best interest of the Nation.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-5 Rulemaking Authority.

(A) The Tax Commission shall prescribe, promulgate, and enforce written rules and regulations not inconsistent with this title to provide for its internal operational procedures; and shall have the authority to interpret or apply any tribal tax laws as may be necessary to ascertain or compute the tax owing by any taxpayer, or for the filing of any reports or returns required by any tribal tax laws, or as shall be reasonably necessary for the efficient performance of its duties, or as may be required or permitted by law.

(B) No rule or regulation of the Tax Commission shall be of any force or effect until and unless a certified copy of said rule or regulation bearing the signatures of the Tax Commission and the official seal of the Tax Commission shall have been approved by Tribal Council and filed for record in the office of the Tribal Council Secretary.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-6 Forms.

The Tax Commission may prepare and make available to the public such standard forms as are or may be necessary to carry out its functions and which are not otherwise provided for by this title.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-7 Tax Stamps and Licenses.

(A) The Tax Commission shall provide for the form, size, color, and identifying characteristics of all licenses, permits, tax stamps, tags, receipts, or other documents or things evidencing receipt of any license or payment of any tax or fee administered by the Tax Commission or otherwise showing compliance with the tax laws of the Prairie Band Potawatomi Nation.

(B) Such instruments shall contain at least the following information:

(1) The words “Prairie Band Potawatomi Nation” or the letters “PBPN.”

(2) If the instrument is a receipt, wording which indicates the type of tax imposed.

(3) If the instrument is a license, permit or receipt, wording indicating the type of license, permit, or receipt, its effective dates, and the name and address of the taxpayer to whom issued.

(C) The Tax Commission shall provide for the manufacture, delivery, storage, and safeguarding of such stamps, licenses, permits, tags, receipts, or other documents and shall safeguard such instruments against theft and counterfeiting.

(D) When the Tax Commission deems it necessary to do so, it may allow the use of metering devices in lieu of paper stamps under such rules and regulations as it shall pre-scribe.

(E) The Tax Commission may exchange new stamps for damaged, out of date, or other unusable stamps under such rules, regulations, or procedures as the Tax Commission shall prescribe.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-8 Bookkeeping.

Financial records shall be established and maintained as may be necessary under generally applicable accounting standards to adequately account for all funds and monies received by the Tax Commission on behalf of the Nation. Separate books shall be maintained for each type of tax imposed by this title.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-9 Tax Commission Employees and Expenses.

(A) The Tax Commission may employ such employees and incur such expenses as may be necessary for the proper discharge of its duties subject to the limitations and restrictions herein set out.

(B) The Tax Commission may appoint a Tax Director to administer the Tribal Tax Department and carry out the functions of the Tax Commission. The Tax Director may be a member of the Tax Commission. The Tax Director may receive payment for services rendered but need not be a full time employee of the Tribe.

(C) The total amount disbursed by the Tax Commission in any one (1) fiscal year for the payment of salaries, expenses, and incidentals shall not exceed the amount appropriated therefor by the Tribal Council. The Tax Commission shall submit, to the Tribal Council, a line item proposed budget for the next fiscal year at the same time as other departmental budgets are submitted.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-10 Bonds.

(A) The Tax Commission may require each of its employees who shall be required to handle public monies, revenues, or tax stamps, or who shall be responsible therefor, to give bonds for the honest and faithful performance of their duties, in such amounts as may be fixed by the Tax Commission.

(B) The premiums on any bonds required by this section of the Tax Commission and Commission employees shall be paid from funds authorized in the Tax Commission budget.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-11 Records.

(A) The Tax Commission shall keep and maintain accurate, complete, and detailed records which reflect all taxes, penalties, and interest levied, due, and paid, all licenses is-sued, and each and every official transaction, communication, or action of the Commission.

(B) Such records shall be maintained at the Prairie Band Potawatomi Nation Tribal Government building and shall not be removed from said building absent the consent of the Tax Commission.

(C) Any record of the Tax Commission (except the record of an official decision or opinion rendered upon an administrative appeal), which relates to the individual business or personal activities of a named particular taxpayer or taxpayers shall not be open to public inspection and shall be released only to (1) the taxpayer involved, (2) tribal officials or employees who have a legitimate official need for such records, (3) the State of Kansas to the extent required pursuant to a valid tax compact between the Nation and the State of Kansas, or (4) upon order of the Tribal Court for good cause shown.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-12 Treasury Account – Deposits.

(A) There is hereby authorized and directed to be established an account in a federally insured financial banking institution to be known as the Prairie Band Potawatomi Nation Treasury Account.

(B) The Treasury Account shall be an interest bearing account or fund and the funds therein may be invested and reinvested as may be approved by the Tribal Treasurer.

(C) No monies shall be released or expended from this account or fund except upon approval by the Tribal Council appropriating a specific amount of the monies contained therein for the use of a particular department, agency, or program of the Nation.

(D) All tax monies, license fees, penalties, interest, service fees or charges or other monies collected by the Tax Commission in the administration and enforcement of this title, except as otherwise specifically authorized by law, shall be deposited in the Treasury Account.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-13 Collection of Taxes.

The Tax Commission is hereby authorized to bring any necessary action in any appropriate Court for the collection of any taxes, penalties or interest assessed and unpaid. Such action shall be civil in nature and all penalties and interest shall be in the form of civil damages for nonpayment. Any civil remedies, including but not limited to garnishments, attachments, and execution, shall be available for the collection of any monies due the Nation. The Tax Commission may request the tribal attorney to bring any necessary action for the collection of any taxes, penalties, or interest assessed and unpaid.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-14 Other Remedies.

(A) In addition to the remedies available for the collection of monies, the Tax Com-mission is authorized to bring an action in any appropriate Court to enjoin the beginning or operation of any unlicensed business, activity, or function when tribal law requires a license be issued for such business, activity or function.

(B) In addition to the remedies available for the collection of monies, the Tax Com-mission is authorized, when accompanied by a police officer, to seize any property which is declared contraband by any section of this title or upon which any tax levied is in excess of sixty (60) days past due under the same conditions, limitations and exceptions as evidence of crimes may be searched for and seized. Within ten (10) days of such seizure, the Tax Commission shall cause to be filed an action against said property alleging the non-payment of tax or other lawful reason for such seizure and forfeiture, and upon proof, the Court shall order such property forfeited for nonpayment of taxes and title thereto vested in the Prairie Band Potawatomi Nation. Any person claiming ownership, the right to possession or other interest in said property may intervene in said action and raise any defenses which he may have, and such persons shall be served with process if they are known prior to the beginning of the action, provided further, that with respect to property seized in connection with past due taxes, penalties or interest, such persons may redeem said property at any time prior to the entry of a final judgment of forfeiture by depositing all taxes, penalties, and interest assessed or owing with the Court.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-15 Inventory of Seized Property.

Whenever any authorized person shall seize any property pursuant to Section 10-1-14, he shall inventory and appraise such property and leave a copy thereof with the person from whom it was seized, or, if such person cannot be found, at the place from which said property was seized, and deliver a copy of said inventory to the Tax Commission.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-16 Public Sale of Forfeited Property.

(A) Upon a final order of forfeiture entered by the Tribal Court, the Tax Commission shall circulate an inventory of said property to all divisions of the tribal government. Any agency of the tribal government may submit a request to the Tribal Council that such portion of said property as they can use be retained for the benefit of the Nation. The Tribal Council shall determine which property will be retained and shall conduct a public sale of the remainder, or destroy any property which is illegal to possess in all circumstances.

(B) The property to be sold shall be sold at public auction at the administrative head-quarters of the Prairie Band Potawatomi Nation or other appropriate location. Not less than twenty (20) days’ notice of such sale shall be posted in the tribal administrative headquarters building and published at least twice in a newspaper of general circulation in the Mayetta, Kansas, or other appropriate area not less than ten (10) days prior to said sale. All funds received at said sale after payment of the cost of said sale shall be deposited in the Treasury Account.

(C) The Tax Commission may cause such sales to be conducted at such times as it deems sufficient property has accumulated to make such sale profitable.

(D) The seizure, forfeiture, and sale of contraband property shall not reduce or eliminate the tax liability of any person from whom such property was seized. The seizure, forfeiture, and sale of any other property shall reduce the tax liability of the person from whom such property was seized.

(Amended by PBP TC No. 2008-121, May 22, 2008; amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-17 Exempt Property.

The following property shall be exempt from garnishment, attachment, execution and sale for the payment of taxes, penalties, and interest due the Prairie Band Potawatomi Nation:

(A) Three-fourths (3/4) of the net wages earned per week by the person or an amount equivalent to forty (40) times the federal minimum hourly wages per week, whichever is greater.

(B) One (1) automobile of fair-market value, equity not exceeding ten thousand dollars ($10,000).

(C) Tools, equipment, utensils, or books necessary to the conduct of the person’s business but not including stock or inventory.

(D) Actual trust or restricted title to any land held in trust by the United States or subject to restrictions against alienation imposed by the United States but not including leasehold and other possessory interests in such property.

(E) Any dwelling used as the actual residence of the taxpayer including up to five (5) acres of land upon which such dwelling is located whether such dwelling is owned or leased by the taxpayer.

(F) Household goods, furniture, wearing apparel, personal effects but not including televisions, radios, phonographs, tape recorders, more than two (2) firearms, works of art, and other recreational or luxury items.

(G) All implements of husbandry used upon the homestead.

(H) All ceremonial or religious items.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-18 Administrative Appeals.

Any taxpayer against whom the Tax Commission has assessed taxes, penalties, or interest pursuant to a taxation law of the Nation, or who has paid under written protest, any taxes, penal-ties, or interest assessed by the Tax Commission, or who has had a license denied, revoked or suspended pursuant to any provision of this Code, may file a written request for hearing with the Tax Commission if the taxpayer believes those taxes, penalties, or interest to be wrongfully assessed or collected or a license was improperly denied, revoked or suspended. Such request must be filed within thirty (30) days of the date of mailing of the Commission’s notice of assessment or action, or when applicable, within two (2) years of the date of payment. The Tax Commission or a person designated by the Commission with Tribal Council approval shall preside over the hearing and shall issue an order for the Commission. A taxpayer may appeal a final Tax Commission order in writing for a hearing before the Tribal Court. Such appeals to Tribal Court shall be filed within thirty (30) days of the date of mailing of the Tax Commission’s final order.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-19 Limitations on Administrative Appeals.

Any appeal as provided for in Section 10-1-18 shall be commenced by filing a written request for a hearing with the Tax Commission.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-20 Enrolling a Judgment.

(A) If any person has been provided a notice of assessment for delinquent taxes, and interest and who fails or refuses to pay same after receiving the Commission’s notice of assessment as provided in Section 10-1-18; and if such person has not filed an appeal of a final Tax Commission order as provided in Section 10-1-18, the Commission shall file a notice of a Tax Lien for such taxes and applicable penalties and interest with the Tribal Court, which shall be enrolled as a judgment on the judgment roll. Such judgment shall be the equivalent of any enrolled judgment of the Court and shall serve as authority for the issuance of writs of execution, attachment, garnishment or other remedial writs. The Commission may issue warrants for collection of taxes from such judgments, in lieu of the issuance of any remedial writ by the Tribal Court Clerk.

(B) The Commission is hereby authorized to pay the clerk’s fee for enrolling the notice of Tax Lien out of the Tax Commission’s budget.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-21 Tax Lien.

(A) The tax lien shall be a lien upon the property of any person who sells or quits his business or stock of goods; such person shall be required to pay the taxes and costs imposed under Section 10-1-20 within ten (10) days of the sale of his business or stock of goods, or to quit his business and pay the taxes and costs imposed. The purchaser or transferee in business shall be required to withhold sufficient purchase money to cover the amount of any taxes, damages and interest due until such time as the former owner shall produce a receipt from the Commissioner showing that such liability has been paid, or a certificate that no taxes are due.

(B) If the former owner fails to pay any delinquent taxes and costs within the time allowed, the successor in business shall pay such taxes, damages and interest to the Commissioner upon demand. If the purchaser or transferee of a business or stock of goods fails to withhold purchase money as provided herein and the taxes and costs are unpaid after the ten (10) day period allowed, he shall be personally liable for the payment of the taxes and costs of the former owner, and the property sold or transferred may be proceeded against by the Commissioner.

(Amended by PBP TC No. 92-66, November 18, 1992; amended by PBP TC No. 2000-82, May 2, 2000; amended by PBP TC No. 2012-032, February 13, 2012, amended by PBP TC No. 2013-147, July 15, 2013; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-22 Filing of a Tax Lien.

(A) The lien imposed pursuant to the provisions of Section 10-1-21 shall not be valid against any purchaser, holder of a security interest, mechanic’s lien, or judgment lien creditor until notice of the tax lien has been filed by the Tax Commission.

(B) The notice of tax lien shall be filed:

(1) With the Tribal Court Clerk and if applicable:

(a) In the case of real property, in the office within the county of the State in which the property subject to the lien is situated; and

(b) In the case of personal property, whether tangible or intangible, in the office within the Tribe and if applicable within the county of the State in which the property subject to the lien is situated.

(C) Status of Property Subject to Lien. For purposes of subsection (A) of this section, property shall be deemed to be situated:

(1) Real Property. In the case of real property, at its physical location; or

(2) Personal Property. In the case of personal property, whether tangible or intangible, at the residence of the taxpayer at the time the notice of tax lien is filed. The residence of a corporation, partnership or limited liability company shall be deemed to be the place at which the principal executive office of the business is located.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2013-147, July 15, 2013; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-23 Release of Lien or Discharge of Property.

(A) Release of Lien. Subject to such regulations as the Tax Commission may prescribe, the Tax Commission shall issue a certificate of release of any lien imposed under this title not later than thirty (30) days after the day on which:

(1) Liability Satisfied or Unenforceable. The Tax Commission finds that the liability for the amount assessed, together with all interest in respect thereof, has been fully satisfied or has become legally unenforceable; or

(2) Bond Accepted. There is a bond furnished to, and accepted by, the Tax Commission that is conditioned upon the payment of the amount assessed, together with all interest in respect thereof, within the time prescribed by law.

(Amended by PBP TC No. 92-66, November 18, 1992; amended by PBP TC No. 2000-82, May 2, 2000; amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2013-147, July 15, 2013; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-24 Compromise of Taxes.

(A) At any time after the assessment of any tax, the Tax Commission may, if the Commission determines it is in the best interest of the Nation, compromise the asserted liability for taxes by entering into a written agreement with the taxpayer that adequately protects the interests of the Nation.

(B) A compromise agreement shall be conclusive as to liability or nonliability for payment of assessed taxes relating to the periods covered by the agreement, and except upon a showing of fraud, misrepresentation or concealment of a material fact, the agreement shall not be subject to challenge or modification. For purposes of this section, “concealment” is the intentional failure to disclose all information relevant to the tax liability.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2013-147, July 15, 2013; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-25 Agreements for Payment of Tax Liability in Installments.

(A) At any time after the assessment of any tax, the Tax Commission may, if the Commission determines it is in the best interest of the Nation, and if the Commission determines that doing so will facilitate full or partial payment of the tax liability, enter into written agreements with any taxpayer under which such taxpayer is allowed to make payment on any tax in installment payments.

(B) The Tax Commission may terminate any installment agreement entered into with a taxpayer if:

(1) Information that the taxpayer provided to the Commission, prior to the date that the installment agreement was entered into, was inaccurate or incomplete; or

(2) The Commission believes that collection of any tax to which an installment agreement relates is in jeopardy.

(1) Pay any installment at the time such installment payment is due under the terms of the installment agreement;

(2) Pay any other tax liability at the time such liability is due.

(Amended PBP TC No. 92-66, November 18, 1992; amended by PBP TC No. 2000-82, May 2, 2000; amended by PBP TC No. 2013-147, July 15, 2013; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-26 Banishment.

Any corporation, partnership, association, company, firm, joint venture, estate, or trust who violates any provision of this title for the purpose of evading payment of taxes imposed by this title, in addition to any civil penalties or the civil penalties of seizure and forfeiture imposed by this title, may be excluded from carrying on any business within the jurisdiction of the Prairie Band Potawatomi Nation for a period not to exceed five (5) years, by order of the Tribal Court; provided, that such banishment as may be imposed, may be suspended by the Judge of the Tribal Court conditioned upon strict compliance with all ordinances and laws of the Prairie Band Potawatomi Nation. An order of expulsion not suspended shall by operation of law cancel all permits, licenses, and other authority of the person to carry on any business within the tribal jurisdiction during its terms.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)

10-1-27 Cancellation of Leases upon Banishment.

Whenever any person or business is banished and excluded from the jurisdiction of the Prairie Band Potawatomi Nation and the order of expulsion is not suspended, and such person or business holds a lease to realty within the jurisdiction of the Prairie Band Potawatomi Nation for other than residential purposes, said lease may be canceled by the lessor within sixty (60) days of the order of banishment at his option by sending written notice to lessee or his attorney by registered or certified mail, return receipt requested, at his last known address. A true and correct copy of the notice of lease cancellation shall be delivered by certified mail, return receipt request-ed, to the Tribal Council and the Tax Commission at the same time the notice is sent to the lessee. Such cancellation shall entitle lessor to full use and possession of the premises and render the lease absolutely void from that date forward and shall relieve lessor and lessee from all future obligations under such lease; provided, that such cancellation shall not relieve lessor or lessee from any obligation incurred prior to the date of cancellation.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-28 Interest.

The statutory rate of interest to be imposed for failure to remit any tax imposed by this title shall be one and one-half (1.5) percent per month, compounded monthly.

(Amended by PBP TC No. 2016-191, June 28, 2016)

10-1-29 Penalty.

Whenever no specific penalty is provided regarding a specific tax imposed by this title, the Commission shall determine a reasonable penalty to be paid by any person who shall fail to remit any such tax in an amount which shall not exceed one hundred (100) percent of the tax delinquency.

(Amended by PBP TC No. 2012-032, February 13, 2012; amended by PBP TC No. 2016-191, June 28, 2016)