MISSISSIPPI LEGISLATURE

2014 Regular Session

To: Finance

By: Senator(s) Fillingane

Senate Bill 2154

(As Passed the Senate)

AN ACT TO AMEND SECTIONS 27-69-53, 27-69-55 AND 27-69-59, MISSISSIPPI CODE OF 1972, TO MODIFY THE PROCEDURE FOR FORFEITURE AND DISPOSAL OF CONTRABAND TOBACCO; TO PROVIDE THE PROCEDURE FOR THE SALE OF TOBACCO THAT IS FORFEITED; TO PROVIDE FOR THE PAYMENT OF TAXES BY THE PURCHASER OF SUCH TOBACCO; TO AUTHORIZE THE DESTRUCTION OF FORFEITED CONTRABAND TOBACCO IF IT IS UNABLE TO BE SOLD; AND FOR RELATED PURPOSES.

     BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

     SECTION 1.  Section 27-69-53, Mississippi Code of 1972, is amended as follows:

     27-69-53.  Any cigarettes found at any point within this state, in the possession of a dealer or any person for a period of time longer than specified by Section 27-69-27 and not having affixed to the package, the stamps as required, and any tobacco subject to the tax found in the possession of any wholesaler, distributor or dealer required by this chapter to obtain a permit, who has not procured a permit, or whose permit has been revoked and not reinstated, are hereby declared to be contraband goods, and * * *the same may be seized by the commissioner, or his agents, or employees, or by any peace officer of this state, when directed by the commissioner so to do, without a warrant, and the * * *said goods shall be * * *offered by the commissioner for sale at public auction to the highest bidder after due advertisement, but the commissioner before delivering any of said goods so seized shall require the purchaser to affix the proper amount of stamps to the cigarettes or pay the excise tax on other tobacco disposed of as required by this chapter.  If sold, the proceeds of sale for any goods sold shall be paid to the State Treasurer by the commissioner as are other funds collected * * *. Provided, that; however, the cost of confiscation and sale shall be paid out of the proceeds derived from * * *such the sale before making remittance to the State Treasurer.  The time limit * * *herein specified for affixing * * *said the stamps shall not apply to any person who, within * * *said the time * * *limits limit, shall offer for sale, either at wholesale or retail, any cigarettes, and all cigarettes when offered for sale either at wholesale or retail without the stamps having been first affixed, shall be subject to confiscation. * * *Provided further, that  Any vehicle, not a common carrier, which may be used in transporting for the purpose of sale any unstamped cigarettes, shall * * *likewise be subject to confiscation and sale in the same manner as above provided.

 * * * The seizure, forfeiture and sale of contraband goods under this section and Section 27‑69‑55 is supplemental and in addition to the seizure, forfeiture and sale of contraband tobacco provided for in Section 27‑69‑56.  Where a basis exists under both this section and Section 27‑69‑55 and under Section 27‑69‑56 for the seizure, forfeiture and sale of the same contraband goods, such actions can proceed simultaneously.  Where such simultaneous seizure, forfeiture and sale is undertaken and there is a conflict between the procedures contained in this section and Section 27‑69‑55 and those contained in Section 27‑69‑56, the procedures contained in Section 27‑69‑56 shall control and be followed.

     SECTION 2.  Section 27-69-55, Mississippi Code of 1972, is amended as follows:

     27-69-55.  (1)  In all cases of seizures of any tobacco, or other property * * *hereafter made as being subject to forfeiture under the provisions of this chapter, * * *which in the opinion of the officer or person making the seizure, is of the appraised value of Twenty‑five Dollars ($25.00) or more, the * * *said officer or person making the seizure shall proceed * * * as follows:

First:  He shall cause a list containing a particular description of the tobacco or other property seized to be prepared in duplicate, and an appraisement thereof to be made by three (3) sworn appraisers to be selected by him, who shall be respectable and disinterested citizens of this state, residing within the county wherein the seizure was made.  Said list and appraisement shall be properly attested by said officer, or person, and the said appraisers, for which service each of said appraisers shall be allowed the sum of One Dollar ($1.00) per day for not exceeding two (2) days, to be paid as other costs.

Second:  If the said tobacco, or other property seized, is believed by the officer making the seizure to be of less value than Twenty‑five Dollars ($25.00), no appraisement shall be made.

Third:  The officer or person making the seizure shall proceedto give notice * * *thereof of the seizure for five (5) days, in writing, at three (3) places in the county where the seizure is made.  One (1) of the notices shall be posted at the county courthouse; another at the place where the goods were seized; and the other at some public place.  The notice shall describe the property seized, and state the time and place and cause of seizure, and give the name and place of residence, if known, of the person from whom the property was seized, and shall require any person claiming it to appear and make such claims in writing, within five (5) days from the date of the first posting of * * *such the notice. * * *Such The officer or person making the seizure shall also deliver to the person from whom the property was seized, and also to the owner, if known, a copy of said notice.

(2) * * *Fourth:  Any person claiming the * * *said property * * *so seized as contraband within the time specified in the notice, may file with the commissioner a claim, in writing, stating his interest in the property seized, and may execute a bond to the State of Mississippi in a penal sum equal to double the value of * * *said the property so seized, but in no case shall * * *said the bond be less than the sum of One Hundred Dollars ($100.00), with securities to be approved by the clerk of the circuit court in the county in which the property is seized, conditioned that in the case of condemnation of the property so seized, the obligor shall pay to the State of Mississippi the full value of the property so seized, and all costs and expenses of the proceedings to obtain * * *such the condemnation, including a reasonable attorney's fee.  And upon the delivery of * * *such the bond to the commissioner, he shall transmit * * *the same it with the duplicate list or description of the property seized to the county attorney of the county, or the district attorney of the district in which such seizure was made, and the * * *said county attorney, or district attorney, as the case may be, shall prosecute the case to secure the forfeiture of * * *said the property in the court having jurisdiction.  Upon the filing of the bond * * *aforesaid, the * * *said property shall be delivered to the claimant pending the outcome of the case, provided he shall at once affix the required stamps on cigarettes or pay the tax due on other tobacco products.

 * * * Fifth:  If no claim is interposed, and no bond given within the time above specified, such property shall be forfeited without further proceedings, and the same shall be sold as herein provided, and the proceeds of the sale, when received by the commissioner, shall be paid into the State Treasury as are other funds collected, provided, that in seizures of property of less value than Twenty‑five Dollars ($25.00), the same may be advertised with other quantities at Jackson by the commissioner and disposed of as hereinabove provided.

(3) * * *Sixth:  In proceedings to secure a confiscation of the property * * *hereinbefore mentioned, where the value of the goods seized at one time does not exceed the amount provided in Section 9-11-9, the justice court judge of the county where the property is seized shall have jurisdiction to try the cause.  Where the value of the property seized at one time is in excess of the amount provided in Section 9-11-9, then the circuit court of the county where the property is seized shall have jurisdiction to try the cause; * * *provided, that however, in counties having a county court, the county court shall have jurisdiction concurrent with the circuit court, and with the justice court where the value of the property seized does not exceed One Thousand Dollars ($1,000.00).

(4)  The proceedings against property seized according to the provisions of this chapter shall be considered a proceeding in rem unless otherwise herein provided.

(5)  Within ten (10) days after filing the bond provided for in * * *paragraph fourth hereof subsection (2) of this section, the claimant shall file a petition in the court having jurisdiction of * * *said the cause, which shall stand for a declaration, and the commissioner, or other party authorized to prosecute the confiscation of * * *said the property, shall plead to it as if it were an ordinary action at law, and the same rules of pleading and proceeding applicable to actions in the circuit court shall be observed in this action, and all issues made by the pleadings shall be tried and disposed of as other actions in the circuit court, and the judgment of the circuit court shall be framed to meet the circumstances of the case and the cost shall be adjudged as in other actions; * * *provided, however, neither the state, nor the commissioner, nor any other person representing the state, shall be liable for the cost in the event the court shall not confiscate the property in controversy.

 * * *

(6)  (a)  If no claim is interposed and no bond filed within the time required by this section, the property shall be forfeited without further proceedings.  The commissioner shall issue an order requiring the tobacco or other property to be sold for the benefit of the state or order the tobacco to be destroyed by the department by burning or other method that renders the tobacco unfit for consumption.

(b)  If the commissioner orders the tobacco or other property sold, the  tobacco or other property shall be sold to the highest bidder.  The offer for sale shall be made to not less than three (3) qualified prospective buyers, by mailing them an invitation to bid, which shall describe the property, terms of sale, method of delivery, manner of bidding and fixing a time of not more than fifteen (15) days from the date of invitation for opening of bids received by the department.  If no reasonable response is received by the department, the tobacco shall be destroyed in the manner described in paragraph (a) of this subsection.

(c)  All bids and payment shall be made in the manner prescribed by the department.  After opening, the bids shall be subject to public inspection.

(d)  If cigarettes are purchased:

(i)  The purchaser shall cause Mississippi cigarette stamps to be affixed to the cigarettes purchased within seventy-two (72) hours from receipt of the cigarettes purchased as provided in this subsection.  If the purchaser is a licensed wholesaler under this chapter who is a qualified interstate dealer under Section 27-69-33, the purchaser shall have the option of placing the purchased cigarettes in his segregated stock for interstate business within the seventy-two-hour period without affixing Mississippi cigarette stamps.  Any partial stamps affixed to the cigarettes shall be removed prior to releasing such cigarettes for interstate business.

(ii)  If the purchaser maintains a bonded warehouse under Section 27-69-29, the purchaser shall have the option of placing the purchased cigarettes in the bonded warehouse within the seventy-two-hour period without affixing Mississippi cigarette stamps.

(iii)  If because of the volume purchased, the purchaser is unable to stamp or dispose of the cigarettes purchased within the seventy-two-hour period, the commissioner may grant a reasonable extension of this period and may condition the extension upon the purchaser adequately securing the cigarettes purchased until the cigarettes are stamped or disposed of as provided in this paragraph.

(iv)  The commissioner may require the purchase to provide information, by report or otherwise, regarding the disposition of the cigarettes purchased at the public auction and is authorized to disclose this information to any federal agency and/or to any agency of the state to which any of the cigarettes purchased are shipped.

(7)  Nothing in this section shall be construed to limit any authority granted by Section 27-69-57.

     SECTION 3.  Section 27-69-59, Mississippi Code of 1972, is amended as follows:

     27-69-59.  When the commissioner has good reason to believe that tobacco is being kept, sold, offered for sale, or given away in violation of this chapter, or regulations issued under authority * * *hereof of this chapter, he may make affidavit of * * *such that fact, describing the place or thing to be searched, before any justice of the peace, mayor of any city, town or village, or county or circuit judge of any county in this state, and * * *such the justice of the peace, mayor or county or circuit judge shall issue a search warrant directed to the sheriff or any constable or any police officer in any city, town or village, commanding him to proceed in the day time, or in the night time, to enter by breaking, if necessary, and to diligently search any building, room in a building, outhouses, place, wagon, cart, buggy, motorcycle, motor truck, automobile, water or air craft, or other vehicle as may be designated in the affidavit and search warrant, and to seize such tobacco so possessed and to hold the * * *same tobacco until disposed of by law, and to arrest the person or persons in possession or control of the * * * same tobacco.

 * * *Such The writ shall be returnable instanter, or on a day to be stated, and a copy shall be served on the owner or person in possession, if * * *such the person be present or readily found.

     If upon hearing, or the return of such search warrant, it shall appear that any tobacco unlawfully possessed were seized, the * * *same tobacco shall be declared forfeited to this state, and shall be * * *sold disposed of as provided in Section 27-69-55 * * * of this chapter.

     SECTION 4.  This act shall take effect and be in force from and after its passage.

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