§383-71 - Collection of delinquent contributions.

§383-71  Collection of delinquent
contributions.  (a)  Civil action.  If any employer is in default in the
payment of any contributions required to be paid by the employer pursuant to
this chapter, the director of labor and industrial relations may, when the
amount of the contributions with respect to which the employer is delinquent is
determined, either by the report of the employer or by the assessment by the
department of labor and industrial relations, proceed to collect payment of the
same by action in assumpsit, in the director's own name, on behalf of the
State, for the amount of the contributions, costs, penalties, and interest.  In
such actions the several district courts shall have concurrent jurisdiction
with the circuit courts, irrespective of the amount claimed.  Actions brought
under this section shall be heard by the court at the earliest possible date
and shall be entitled to preference upon the calendar of the court over all
other civil actions except petitions for judicial review under this chapter and
cases arising under the workers' compensation law.

No proceedings in court for the collection of
delinquent contributions shall be begun after the expiration of four years from
the last day of the month following the last month of the quarter for which the
contributions are due; provided that in the case of a false or fraudulent
return or the wilful failure to file a return with intent to evade the payment
of contributions, a proceeding in court for the collection of the contributions
may be begun at any time.

(b)  Distraint.  If the amount of contributions
or interest assessed is not paid when due the director may collect payment of
same by distress upon so much of the delinquent employer's goods, chattels,
moneys, or intangibles represented by negotiable evidences of indebtedness, as
the director may deem sufficient to satisfy the payment of contributions due,
penalties, and interest if any, and the costs and expenses of distress.  In the
case of moneys, distress shall be effected by seizure, and in other cases
distress shall be effected by seizure and sale of the property.  The director
shall take possession and keep the distrained property until the sale.  After
taking possession, the director shall sell the delinquent employer's interest in
the property at public auction after first giving fifteen days' public notice
of the time and place of the sale in the county where the sale is to be held,
and by posting notice in at least three public places in the county where the
sale is to be held.  The director may require the assistance of any sheriff or
authorized police officer of any county to aid in the seizure and sale of the
distrained personal property.  The director may further retain the services of
any person competent and qualified to aid the sale of the distrained personal
property, provided that the consent of the delinquent employer is obtained. 
Any sheriff or the person so retained by the director shall be paid a fair and
reasonable fee but in no case shall the fee exceed ten per cent of the gross
proceeds of the sale.  Any person other than a sheriff so retained by the
director to assist the director may be required to furnish a bond in an amount
to be determined by the director.  The fees and the cost of the bond shall
constitute a part of the costs and expenses of the distress.

The sale shall take place within twenty days
after seizure; provided that by public announcement at the sale, or at the time
and place previously set for the sale, it may be extended for one week.  Any
further extension of the sale shall be with the consent of the delinquent
employer.  The sale, in any event shall be completed within forty-five days
after seizure of the property.  Sufficient property shall be sold to pay all
contributions, penalties, interest, costs, and expenses.  On payment of the
price bid for any property sold, the delivery thereof with a bill of sale from
the director shall vest the title of the property in the purchaser.  No charge
shall be made for the bill of sale.  All surplus received upon any sale after
the payment of the contributions, penalties, interest, costs, and expenses,
shall be returned to the owner of the property sold, and until claimed shall be
deposited in the director's office subject to the order of the owner.  Any unsold
portion of the property seized may be left at the place of sale at the risk of
the owner.  If the owner of the property seized desires to retain or regain
possession thereof, the owner may give a sufficient bond and surety to produce
the property at the time and place of sale or pay all contributions, penalties,
interest, costs, and expenses.

(c)  Liens, foreclosure.  The claim of the
department for any contributions, including penalties and interest thereon, not
paid when due, shall be a lien upon property as provided by section 231-33, and
the powers conferred on the director of taxation by that section apply to these
contributions, the same as other state taxes.  However, as to the powers
conferred on the director of taxation by section 231-33(h), such powers are, as
to these contributions, conferred on the director of labor and industrial
relations, and the lien may be foreclosed in a court proceeding or by distraint
under this section. [L 1939, c 219, §7(e); am L 1941, c 304, §1, pt of subs 22
and subs 23; RL 1945, pt of §§4257, 4258; am L 1949, c 77, §1; am L 1953, c 23,
§1(6); RL 1955, §93-70; am L 1957, c 115, §1(d) and c 185, §§2, 3; am L Sp 1959
2d, c 1, §§16, 27; HRS §383-71; am L 1975, c 41, §1; gen ch 1985; am L 1989, c
211, §10; am L 1990, c 281, §11; am L 1998, c 2, §94]

Rules of Court

  Assignment of cases in circuit court, see HRCP rule 40.