Laws, Regulations & Annotations

Business Taxes Law Guide – Revision 2011
 

Cigarette and Tobacco Products Tax Law

CHAPTER 7.5. SEIZURE AND FORFEITURE.1


CHAPTER 7.5. SEIZURE AND FORFEITURE.1

1Chapter 7.5 was added by Stats. 1967, p. 2522, operative August 1, 1967.

30435. Inspections by board. (a) An employee of the board, upon presentation of the appropriate identification and credentials, is authorized to enter into, and conduct an inspection of any building, facility, site, or place described in subdivision (b).

(b) Any building, facility, site, or place at which cigarette or tobacco products are sold, produced, or stored, or any building, facility, site, or place for which there is evidence of either the evasion of the taxes imposed under this part, or the failure to comply with the requirements of the Master Settlement Agreement, as defined in subdivision (e) of Section 104556 of the Health and Safety Code, including, but not limited to, Section 30165.1.

(c) Any inspection performed under the authority of this section shall be performed in a reasonable manner and at a reasonable time, taking into consideration the normal business hours of the building, facility, site, or place that is inspected.

(d) Any person that refuses to allow an inspection authorized under this section is subject to the penalty imposed by Section 30471.

History.—Added by Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004. Stats. 2006, Ch. 501 (AB 1749), in effect January 1, 2007, deleted the former subdivision (e) which stated "This section shall remain in effect until January 1, 2010, and as of that date shall be repealed."

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30436. Property forfeited. The following property, upon seizure by the board, is hereby forfeited to the state:

(a) Cigarettes or tobacco products transported upon the highways, roads or streets of this state in violation of Section 30431 or Section 30432.

(b) Cigarettes not contained in packages to which are affixed California cigarette tax stamp or meter impressions or tobacco products upon which the tobacco products surtax has not been paid, which are offered for sale, possessed, kept, stored, or owned by any person with the intent of the person to sell the cigarettes or tobacco products without payment of the taxes imposed by this part.

(c) Any cigarette or tobacco product vending machine, together with the cigarettes, tobacco products, money or other contents thereof, that has been loaded, in whole or in part, with packages of cigarettes that do not have California cigarette tax stamps or meter impressions affixed or tobacco products upon which the tobacco products surtax has not been paid.

(d) Cigarettes contained in packages to which are affixed California cigarette tax stamps or meter impressions in violation of Section 30163.

(e) Cigarettes or tobacco products to which are affixed California cigarette tax stamps or meter impressions, or for which tax is paid pursuant to Sections 30123 and 30131.2, in violation of Section 30165.1, regardless of whether the violation is subject to the defense described in paragraph (2) of subdivision (i) of Section 30165.1.

History.—Stats. 1989, Ch. 634, in effect September 21, 1989, added "or tobacco products" after "cigarettes" in subdivisions (a), (b) and (c), added "or tobacco . . . been paid" after "impressions" in subdivisions (b) and (c), and added "or tobacco product" before "vending machine" in subdivision (c). Stats. 1999, Ch. 935 (SB 702), in effect October 10, 1999, added subdivision (d). Stats. 1999, Ch. 941 (SB 1231), in effect January 1, 2000, substituted "Cigarettes contained in packages to which are affixed California cigarette tax stamps or meter impressions in violation of Section 30163" for "Cigarettes contained in packages that are stamped or metered in violation of Section 30163" in subdivision (d). Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004, substituted "state" for "State of California" after "is hereby forfeited to" in the first sentence; deleted "the provisions of" after "in violation of" in subdivision (a); added "," after "kept, stored" in subdivision (b); substituted "that" for "which" after "contents thereof," and after "with packages of cigarettes", and added "," after "has been loaded" and after "in whole or in part" in subdivision (c); and added subdivision (e).

30437. Notice of seizure and forfeiture. Notice of the seizure and forfeiture of the property described in Section 30436 shall be given by the board as follows:

(a) Notice shall be given by personal service or by certified mail to all persons known by the board to have any right, title or interest in the property.

(b) (1) Except as provided in paragraph 2, the board shall include a notice of seizure and forfeiture on its Web site for a period of six months from the notice of seizure.

(2) Web site notification is not required when the amount of cigarettes seized is less than 61 cartons of 200 cigarettes each or an equivalent amount of tobacco products.

(c) Notice shall include a description of the property, the reason for the seizure, and the time and place of the seizure.

History.—Stats. 1995, Ch. 555, in effect January 1, 1996, restructured the entire section by retaining the basic seizure reporting requirements but breaking it down into subdivisions (a), (b), and (c) and added minimum carton seizure criteria contained in (b)(2). Stats. 2004, Ch. 82 (AB 2491), in effect June 30, 2004, substituted "certified" for "registered" after "service or by" in subdivision (a); added "the board shall include a" after "in paragraph (2),", substituted "on its Web site . . . months from" for "shall be given by one publication in a newspaper of general circulation in the county where", added "notice of" after "months from the", and deleted "was made as follows:" in paragraph (1) of subdivision (b); deleted former subdivisions (b)(1)(A) and (b)(2)(B) which provided "(A) To all persons unknown by the board who may have a right, title, or interest in the property." and "(B) To all persons known by the board to have a right, title, or interest in the property but who cannot be found."; and substituted "Web site notification" for "Newspaper publication" before "is not required" in paragraph (2) of subdivision (b).

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30438. Petition for release or recovery; limitation period. Any person owning or claiming any interest in the property may file a verified petition with the board stating his interest in the property and requesting the release or recovery of the property on the ground that the property was erroneously or illegally seized. Any person served personally or by mail under Section 30437 shall file the petition within 20 days from the date of the personal service upon him or the date of the mailing of the notice to him. Any person not served personally or by mail under that section shall file the petition within 20 days from the date of publication of the notice. The failure of any such person to file a timely verified petition shall constitute a bar to his right to any interest in the property, except insofar as the rights of any such person may be established in an action filed by the board under this chapter.

30439. Determination of petition. If the board determines that the property was seized erroneously or illegally, it shall order the release of the property. If the board denies the petition for the release or recovery of the property, notice of the denial shall be mailed within five days to the petitioner.

30440. Court action by petitioner; limitation period. Within 20 days from the date of the mailing of the board's notice of denial of the petition, the petitioner may file an action against the board in the Superior Court of the County of Sacramento for the release or recovery of the property on the ground that the property was erroneously or illegally seized. The failure of the petitioner to file a timely action shall constitute a bar to his right to any interest in the property, except insofar as the rights of the petitioner may be established in an action filed by the board under this chapter. The court shall determine whether the seizure of the property was in accordance with law and shall enter an appropriate order for the disposition of the property.

30441. Deposit in lieu of property. Within 20 days after the seizure of property under this chapter, any person owning or claiming an interest in the property may offer to deposit with the board an amount of money equal to the fair market value of the property as determined by the board. If the board is satisfied that the property will not be used, transported or sold in violation of any provision of this part, the board shall accept the deposit and release the property. The money so deposited shall be held by the board in lieu of the seized property and shall be treated in all respects in the same manner as that property.

30442. Court action by the board; limitation period. Notwithstanding any other provisions of this chapter, upon making a seizure of property under Section 30436, the board may at any time prior to the sale or other disposition of the property commence an action to determine the rights of the state to the property. The action shall be commenced in the superior court of the county in which the seizure was made by petitioning the court for a judgment confirming the seizure and forfeiture of the property. The petition shall describe the property, the grounds for seizure and the time and place of the seizure.

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30443. Service of petition on interested persons. Copies of the petition shall be served personally or by registered or certified mail on all persons known by the board to have any right, title or interest in the property seized. Unknown persons, or any known person who cannot be found, having any right, title or interest in the property shall be served by one publication of the petition in the manner prescribed for publication of the notice of seizure and forfeiture under Section 30437.

30444. Answer to petition. Any person claiming any right, title or interest in the property may within 20 days after service of the petition upon him file an answer to the petition. The answer shall allege facts to show the interest of the claimant in the property and to establish that the seizure and forfeiture was erroneous or illegal. A copy of the answer shall be served on the board at its office in Sacramento.

30445. Court procedure. If at the expiration of 20 days after the petition has been personally served, mailed or published there is no answer on file, the court shall within 30 days thereafter receive evidence in support of the seizure and forfeiture and shall, upon being satisfied of the validity thereof, enter judgment confirming the seizure and forfeiture.

30446. Court hearing; notice. If a timely answer has been filed, the proceeding shall be set for hearing on a day within 30 days after the expiration of the period for filing of an answer. Notice of the hearing shall be given by the clerk of the court to each person filing an answer.

30447. Court hearing; evidence. At the time set for the hearing any person having a timely answer on file may offer evidence to establish that the seizure and forfeiture of the property was erroneous or illegal.

30448. Court order. The court shall determine whether the seizure of the property was in accordance with law and enter an appropriate order for the disposition of the property.

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30449. Sale and destruction of forfeited property. (a) Except as provided in subdivision (b), (c), or (d), any property, except money, forfeited to the state under this chapter shall be sold by the board at public auction. Notice of the sale shall be given by posting a written notice of the time and place of sale in three public places in the county where the property is to be sold for not less than five days nor more than 10 days before the sale. If the board is unable to sell any property forfeited to the state under this part or, if the board determines that the property is unsalable, it may destroy that property.

(b) Any property forfeited to the state pursuant to subdivision (e) of Section 30436 shall be destroyed.

(c) Any cigarettes forfeited to the state pursuant to subdivision (b) of Section 30436 shall be destroyed.

(d) Any cigarettes or tobacco products forfeited to the state pursuant to Division 8.6 (commencing with Section 22970) of the Business and Professions Code shall be destroyed.

(e) A record shall be kept of all property destroyed pursuant to this section showing the nature of the property, the quantity, the reason for, and the manner of destruction. The proceeds of the sale and any money forfeited to the state shall be deposited in the State Treasury to the credit of the General Fund. History.—Stats. 1968, p. 2122, in effect November 13, 1968, added the second, third and fourth sentences. Stats. 2003, Ch. 890 (AB 71), in effect January 1, 2004, established the former first, second and third sentences as subdivision (a), substituted "Except as provided in subdivision (b), (c), or (d), any" before "property, except money, forfeited" in the first sentence, substituted "the" for "such" after "Notice of" and substituted "10" for "ten" after "nor more than" in the second sentence, added "," after "unsalable" and substituted "that property" for "such property" after "it may destroy" in the third sentence of subdivision (a); added subdivisions (b), (c) and (d); and established the former fourth and fifth sentences as subdivision (e).