27-69-56 - Seizure of contraband tobacco or other tobacco determined to be product of illegal act; inventory, appraisal, forfeiture and sale of seized tobacco [Repealed effective July 1, 2010].
§ 27-69-56. Seizure of contraband tobacco or other tobacco determined to be product of illegal act; inventory, appraisal, forfeiture and sale of seized tobacco [Repealed effective July 1, 2010].
(1) Any law enforcement officer, either state or federal, is authorized to seize any contraband tobacco or other tobacco found in Mississippi which the law enforcement officer determines is a product of an illegal act and where the law enforcement officer estimates that the retail value of the property seized is Fifteen Thousand Dollars ($15,000.00) or more. Tobacco that is a product of an illegal act is hereby declared to be contraband goods and shall be forfeited to the State of Mississippi. For the purposes of this section, the term "illegal act" means a violation of the provisions of this chapter, an attempt to violate the provisions of this chapter and/or a conspiracy to attempt to violate the provisions of this chapter.
(2) In all cases where contraband tobacco or other tobacco that is found in Mississippi due to the tobacco being a product of an illegal act, or where the contraband tobacco or other tobacco that is the product of an illegal act has been seized by a law enforcement officer, either state or federal, and the tobacco is of an estimated retail value of Fifteen Thousand Dollars ($15,000.00) or more, then the law enforcement officer shall turn the custody of the tobacco over to the commissioner, who shall proceed as follows:
(a) An inventory and appraisal of the tobacco shall be prepared by the commissioner. If the tobacco received from a law enforcement officer has an estimated retail value in excess of One Million Dollars ($1,000,000.00), the State Auditor may, upon request of the commissioner, assist in conducting the investigation, inventory, appraisal and sale of the tobacco received. Where the tobacco received from a law enforcement officer represents multiple seizures and/or one or more seizures where there are multiple persons and/or owners having a potential interest in the tobacco seized, the commissioner, at his discretion, may inventory, appraise and proceed with the forfeiture and sale of the tobacco based on each specific seizure, probable common interest and/or ownership of the tobacco or a combination thereof.
(b) Notice of the seizure and the impending forfeiture of the tobacco shall be given in writing for five (5) days at three (3) places in the county where the tobacco was seized, including one (1) posted at the county courthouse, another at the place where the tobacco was seized, and the other at another public place. The notice shall describe the property, 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 the property to appear and make such claims in writing, within five (5) days from the date of the first posting of such notice. The commissioner shall also deliver a copy of such notice to the person or persons from whom the property was seized, and also to the owner, if known.
(c) Any person claiming the seized property within the time specified in the notice may file with the commissioner a claim and bond as set forth in Section 27-69-55. If a claim and bond is filed with the commissioner, the commissioner shall transmit the same 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 county attorney or district attorney, as the case may be, shall prosecute the case to secure the forfeiture of such property in the court having jurisdiction as provided in Section 27-69-55. Upon receipt of the bond, the commissioner shall also deliver to the claimant filing the bond and accompanying claim the property for which the bond and claim were filed pending the outcome of the case, provided the claimant receiving the property shall at once affix the required stamps on cigarettes or pay the tax due on other tobacco products. The prosecution of the forfeiture and any action by the claimant to pursue his claim shall be as provided in Section 27-69-55.
(d) If no claim is filed with the commissioner and no bond is given within the time specified, the property shall be forfeited without further proceedings and shall be sold as provided in this section and the proceeds of the sale received by the commissioner, less any amount for taxes, federal or state, due on the product being sold or as a result of the sale thereof and any amount necessary to reimburse the State Tax Commission for the payment of any of the costs of confiscation and sale, shall be paid into the State Auditor's Exception Clearing Account, to be distributed by the State Auditor as follows:
(i) Ten percent (10%) of the proceeds of the sale shall be deposited into Treasury Fund No. 3181 to the credit of the State Tax Commission;
(ii) If the State Auditor's office assisted in the investigation, inventory, appraisal and/or sale of the property sold, then eight percent (8%) of the proceeds of the sale shall be deposited into Treasury Fund No. 3155 to the credit of the State Auditor's office;
(iii) If any local law enforcement department or unit assisted in the investigation and/or seizure of the property that is the subject of the sale, then two percent (2%) of the proceeds of the sale shall be allocated among and paid to such local law enforcement departments or units based upon the proportion of assistance provided in the investigation and/or seizure of the property that is the subject of the sale as determined by the State Auditor; and
(iv) The remainder of the proceeds shall be deposited into the State General Fund.
(e) (i) The property shall be offered for sale by the commissioner at public auction to the highest bidder after due advertisement. The commissioner may reject the highest bid if he determines that it is not at least equal to the reasonable value of the property being sold and may then require a rebid and/or may offer the property for sale in smaller lots. If it is determined to offer the property for sale in smaller lots, it is within the commissioner's sole discretion to determine how to divide the property into these smaller lots. When offering the property for sale in smaller lots, the commissioner retains the authority to reject the highest bid if it is not at least equal to the reasonable value of the property in the smaller lot and may then require a rebid and/or may offer the property for sale in even smaller lots. All sales at the auction will be for cash or cash equivalent deemed acceptable to the commissioner.
(ii) If at any time the commissioner determines that he will not be able to sell the tobacco received for a price that is at least the amount of the federal excise tax due on the tobacco, plus the expenses of the sale, he shall dispose of the property according to the provisions of 27 CFR Section 41.25.
(iii) Any purchaser of cigarettes at the public auction shall, within seventy-two (72) hours from receipt of the cigarettes from the commissioner, cause Mississippi cigarette stamps to be affixed to the cigarettes purchased or ship the purchased cigarettes to a location outside the State of Mississippi. If the purchaser is a licensed wholesaler under this chapter who is a qualified interstate dealer under Section 27-69-33, the purchaser also shall have the option of placing the purchased cigarettes in his segregated stock for interstate business within such seventy-two-hour period without affixing Mississippi cigarette stamps to these cigarettes at that time. If the purchaser maintains a bonded warehouse under Section 27-69-29, the purchaser also shall have the option of placing the purchased cigarettes in the bonded warehouse within such seventy-two-hour period without affixing Mississippi cigarette stamps to the cigarettes at that time. 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 such extension upon the purchaser adequately securing the cigarettes purchased until such cigarettes are stamped or disposed of as provided in this subparagraph. The commissioner may require the purchaser 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 were shipped.
(iv) Tobacco received by the commissioner from a law enforcement officer under this section that is not sold at a public auction as provided in this paragraph (e) shall be destroyed by the commissioner by burning or other method that will render the tobacco unfit for consumption. The commissioner shall be reimbursed for payment of the cost of such destruction from the proceeds of the sale as part of the cost of confiscation and sale.
(3) The seizure, forfeiture and sale of contraband goods under this section is supplemental and in addition to the seizure, forfeiture and sale of contraband tobacco provided for in Sections 27-69-53 and 27-69-55. Where a basis exists under both this section and Sections 27-69-53 and 27-69-55 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 those contained in Sections 27-69-53 and 27-69-55, the procedures contained in this section shall control and be followed.
(4) Forfeiture of contraband goods under this section is intended to be used not only for seizures and/or illegal acts occurring after June 30, 2009, but also for seizures and/or illegal acts occurring before June 30, 2009.
(5) This section shall stand repealed on July 1, 2010.
Sources: Laws, 2009, 2nd Ex Sess, ch. 87, § 1, eff from and after passage (approved June 30, 2009.)