Joel R. Brandes and Carole L. Weidman
GONE ARE THE DAYS of trusting that people will be duty-bound
to their obligations, and Big Brother is doing more than just watching. That
same taxation authority that sports the slogan that it is un-American not to
pay your taxes is now determined to make sure people pay their support
obligations by securing compliance in the same manner and with the same fervor
that payment of taxes is assured.
For those having to enforce support orders, 1996 was a turning
point. That is when Social Services Law (SSL) s111-b was amended, to allow
enforcement of support arrears where there exists a court order to pay child
support (or combined child and spousal support) to a collection unit on behalf
of those receiving child support enforcement services. [FN1]
Under the new law, the New York State Department of Taxation
and Finance is authorized to initiate enforcement of the arrears upon receipt
of notice from the Department of Social Services of an obligor's eligibility
for enforcement of support arrears by it. Once the notice is given to the
Commissioner of Taxation and Finance, the department is deemed to have
obtained a judgment against the obligor for the full amount of the support
arrears stated in the notice and any subsequent arrears that may become due.
It may enforce this judgment with the same effect and in the same manner
prescribed by the tax law for the collection of tax assessments docketed under
the tax law as a warrant. [FN2]
Forty-Five Day Notice
For each individual who is under a court order to pay child
support or combined child and spousal support to a support collection unit (SCU)
and owes four months or more of support, the Department of Social Services
must notify the support obligor in writing that his or her continued failure
to pay the support arrears will have the immediate and usually undesirable
result of authorizing State Tax to collect the arrearage.
Retroactive support is not part of "arrears" in determining
whether a support obligor has accumulated support arrears equivalent to or
greater than the amount of current support due for a period of four months.
If, however, at least four months of support arrears has accumulated after the
date of the court order, the entire amount of any retroactive support may be
collected. [FN3] A support obligor from whom support payments are being
received by the SCU as a result of an income execution or an income deduction
order issued pursuant to Civil Practice Law and Rules ss5241 or 5242 is exempt
from this method of enforcement. [FN4]
If the support obligor does not challenge the determination of
the SCU, as provided in SSL s111-b (12)(d)(1), or fails to pay the arrears,
within 45 days after the date of the notice, the Department of Social Services
must notify the Department of Taxation and Finance that it is authorized to
collect the arrearage. [FN5]
The Department of Social Services is required to provide the
notice by first class mail to the support obligor's last known address or such
other place where the support obligor is likely to receive notice by
first-class mail. [FN6]
The notice provided to a support obligor by the Social
Services Department must contain the caption of the order of support, the date
the order of support was entered, the court in which it was entered, the
amount of the periodic payments directed and the amount of arrears. [FN7]
In addition, the notice must include, among other things,:
(1) a statement that unless the support arrears are satisfied
within 45 days after the date of the notice, the Department of Taxation and
Finance will be notified it is authorized to commence collection action unless
the support obligor challenges the support collection unit's determination as
set forth in SSL s111-b(15)(d); a statement of the manner in which the support
obligor may challenge the determination, and a statement that if the support
obligor challenges the determination, a review will be completed by the
support collection unit within 75 days of the date of the notice;
(2) a statement that if the support obligor does not challenge
the support collection unit's determination then the Department of Taxation
and Finance will be notified it is authorized to commence collection action
unless the support obligor contacts the support collection unit to arrange for
full payment of the arrears;
(3) the address and telephone number of the support collection
unit that the support obligor may contact to request information about a
challenge to the determination of the support collection unit. [FN8]
Defending Against the 45-Day Notice
An obligor can successfully defend against being thrown into
the taxing authorities' hands by:
. making payment of all arrears to the SCU;
. providing documentation that shows the support obligor is
receiving public assistance, medical assistance, food stamps or Supplemental
Security Income; or
. providing to the SCU documentation sufficient for it to
determine:
(1) an error in the calculation of the obligor's support
arrears that would render the obligor ineligible for collection by the
Department of Taxation and Finance; or
(2) a mistake in the identity of the obligor showing that the
individual making the challenge is not the obligor identified by the
Department of Social Services; or
(3) the absence of an underlying court order for support, by
virtue of which the obligor's arrears gave rise to eligibility for collection
action by the Department of Taxation and Finance. [FN9]
The Department of Social Services, now armed with a "Bureau of
Special Hearings; Child Support Unit," will provide administrative law judges
to hear and determine objections to the determination of a support collection
unit to refer an obligor's arrears to the Department of Taxation and Finance
for collection pursuant to SSL s111-h(19). [FN10]
The first step to challenging the determination of the SCU
made pursuant to SSL s111-b (16) and s171-i of the tax law is to put it in
writing. Included in the submission is any documentation demonstrating
mistaken identity, error in the calculation of arrears, financial exemption
from the collection or the absence of an underlying court order establishing
arrears to support the determination.
It is by all means proper to include a copy of the order of
support (pursuant to which the obligor claims to have made payment), other
relevant court orders, copies of cancelled checks, receipts for support
payments, pay stubs or other documents identifying wage withholding, proof of
identity and the like. [FN11]
Review by SCU
Keeping to their commitment to move things along, in response
to the challenge, the support collection unit must review the documentation,
adjust the obligor's account, if appropriate, and notify the obligor of the
results within 75 days of the date of the notice. [FN12]
If the support collection unit's review finds that the
determination to refer to the Department of Taxation and Finance was correct,
the SCU must notify the support obligor of its conclusion and that he/she has
30 days from the date of the notice to satisfy the full amount of the arrears.
The failure to make payment results in notification to the Department of
Taxation and Finance that it is authorized to commence collection of the
arrears.
The obligor does have a right of "appeal." He/she must file
objections to the review determination of the SCU with the Bureau of Special
Hearings; Child Support Unit of the department pursuant to SSL s111-b (16),
and serve these objections on the SCU within 30 days from the date of the
notice denying the challenge. If properly served, the SCU cannot notify the
Department of Taxation and Finance of its authority to collect the arrearages
until 15 days after receipt of a decision by the administrative law judge
pursuant to SSL s 111-b (16). [FN13]
If a support obligor files objections to the denial of his or
her challenge with the Bureau of Special Hearings, Child Support Unit of the
Department of Social Services, within 30 days of the date of notice denying
his or her challenge by the SCU, the bureau must review the support collection
unit's determination to refer the obligor's case to the Department of Taxation
and Finance for collection pursuant to SSL s111-b (16).
If the support obligor files the objections with the bureau in
a timely manner, the SCU may not notify the Department of Taxation and Finance
of its authority to collect the arrearages until 15 days after entry of an
order by the administrative law judge denying the objections. [FN14]
The Bureau of Special Hearings, Child Support Unit must review
a support collection unit's denial of a challenge made by a support obligor
pursuant to paragraph SSL s111-h (19) (b) if timely objections are filed by a
support obligor who has received notice that the Department of Social Services
intends to notify the Department of Taxation and Finance to collect such
support obligor's support arrears. Specific written objections to a support
collection unit's denial must be submitted by the support obligor to the
Bureau of Special Hearings, Child Support Unit within 30 days of the date of
the notice of the support collection unit's denial. [FN15]
In filing objections, a copy of the objections must be served
upon the SCU. The SCU then has 10 days from service to file a written rebuttal
to the objections and a copy of the record upon which the support collection
unit's denial was made, including all documentation submitted by the support
obligor. Proof of service must be filed with the unit at the time of filing of
objections and any rebuttal. The unit's review must be based solely on the
record and submissions of the support obligor and the support collection unit
on which the support collection unit's denial was made. [FN16]
Within 15 days after the rebuttal, if any, is filed, an
administrative law judge of the unit must (i) deny the objections and remand
to the support collection unit or (ii) affirm the objections if the
administrative law judge finds the determination of the support collection
unit is based on an erroneous determination of fact by the support collection
unit. The decision must pertain solely to the mistaken identity of the
obligor, a prejudicial error in the calculation of the obligor's arrears, the
obligor's financial exemption from collection of support arrears by the
Department of Taxation and Finance or the absence of an underlying court order
establishing arrears to support eligibility for such enforcement.
Should the obligor turn out to be right, the administrative
law judge must affirmatively direct the support collection unit not to notify
the Department of Taxation and Finance of its authority to collect the support
obligor's arrears. The decision of the administrative law judge is final. It
is not subject to review by the Commissioner of Social Services. It is
reviewable only pursuant to Civil Practice Law and Rules Article 78. [FN17]
FN1. Anyone can request "child support enforcement services."
SSL s111-g provides that these services be made available, upon application,
to persons not receiving Aid to Dependent Children. Application is made by (i)
completing and signing a form prescribed by DSS, or (ii) filing a petition
with the court or applying to the court in a proceeding for the establishment
of paternity and/or establishment and/or enforcement of a support obligation,
which includes a signed statement applying for child support services.
FN2. Tax Law 171-i (4).
FN3. SSL s111-b 15 (b) (1).
FN4. SSL s111-b 15 (b) (3).
FN5. SSL s111-b (15)(b) (2).
FN6. Id.
FN7. SSL s111-b (15) (c).
FN8. Id.
FN9. SSL s111-b (15) (d).
FN10. SSL s111-b (16) (a) [Eff. until June 30, 1999.].
FN11. SSL s111-h (19)(1) [Eff. until June 30, 1999.].
FN12. Id.
FN13. Id.
FN14. SSL s111-h (19) (2).
FN15. SSL s111-b (16) (b).
FN16. Id.
FN17. Id.
Joel R. Brandes and Carole L. Weidman have law offices in New
York City and Garden City. They co-authored, with the late Doris Jonas Freed
and Henry H. Foster, Law and the Family New York, and co-authored Law and the
Family New York Forms (both, Lawyers Cooperative Publishing).
7/22/97 NYLJ 3, (col. 1)
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