Liens, Levies and IRS Collections Process: What You Need to Know

Transcription

1 Moving Your Practice in the Right Direction TM Liens, Levies and IRS Collections Process: What You Need to Know A Practice Essentials Presentation 2010 OnePath Practice Management Advisors, LLC. All Rights Reserved. 1

2 Disclaimer! This is a Continuing Legal Education (CLE) presentation, and it is not legal advice. This presentation was prepared for information purposes only for other lawyers only and deals with hypothetical or historical situations. The information is certainly not intended and should not in any way be construed as legal advice. Your receipt of this information does not in any way create an attorney-client relationship and cannot substitute for obtaining legal advice from an attorney. The presenter makes no claim about the correct interpretation of any law discussed in this presentation. The presenter does not make any claim about what the correct course of action might be in a particular matter. The presenter also does not make any claim that the information contained in this article is complete or correct. 2

3 About the Presenter! Benjamin Stolz, Esq. is trainer, speaker, educator, writer and attorney with over 20 years experience practicing consumer bankruptcy and business law, managing and advising small businesses. Ben received his BA from the University of South Florida, with Departmental Honors, and a JD from Southern Methodist University. He has been admitted to practice in Texas both before the Supreme Court of Texas, all lesser Texas courts, as well as the United States District Courts for the Northern and Eastern Districts of Texas. Ben is a member of the National Association of Consumer Bankruptcy Attorneys (NACBA), the American Bankruptcy Institute (ABI), Association of Litigation Support Professionals (ALSP), the American Bar Association (ABA), a proud graduate of the Max Gardner Bankruptcy Boot camp,!and a frequent guest panelist at Consumer Bankruptcy CLE events. As a result of his ongoing commitment to continuing legal education, Ben was also admitted in 2009 to the College of the State Bar of Texas, an Honorary Society chartered by the State Bar of Texas. 3

4 Liens and Levies! Liens and Levies.! Your in your office and your client sits down and tells you he owes the IRS quite a lot of money; he had good reason he could not pay. But, he owes the money just the same. He wants to know where he stands and what you can do to help it s a fair question.! So, what actions can the IRS take when they claim your client owes Federal taxes? For starters, they can file a Notice of Federal tax lien that is recorded in the county in which your client resides.! The IRS may also service a Notice of Levy upon your client s employer to attach their wages or upon your client s bank to attach any funds they have deposited.! The IRS also has the power, if it choose to exercise it, to seize an asset such as a vehicle, a business or even a home. 4

5 Liens and Levies! What's the difference between a Lien and a Levy?! Liens. A lien is simply paper document. All by itself, it can t do too much to change your client s life, but it it can be a black mark on your client s credit report.! As a practical matter, unless your client owns a home, it doesn't do much more damage. But, the lien does attach to all of the property your client owns or acquires after the fact.! Regardless, the lien is only valid in the county in which it is filed, so if your client owns property in Texas, but the lien was filed in Montgomery County, MD, your client can still sell that property free and clear of the lien. 5

6 Liens and Levies! What's the difference between a Lien and a Levy?! Levy. A levy actually attaches to a specific item, either wages or a bank account in most cases.! There are two forms of Levy:! Wages! Bank Account 6

7 Liens and Levies! What's the difference between a Lien and a Levy?! Wage Garnishment is one way in which the IRS attempts to recover back taxes or taxes your client owes by garnishing their salary or wages.! The IRS can garnish a significant part of your client s paycheck.! The IRS can garnish your client s wages without a court order.! Note: Federal law states that a consumer can exempt up to 75% of disposable weekly earnings or 30 times the minimum wage which is currently $5.85 (whichever is greater). The government cannot take more than 25% of your client s weekly after-tax income or 30 times the minimum wage. 7

8 Liens and Levies! What's the difference between a Lien and a Levy?! Notice. Your client usually will receive a notice and demand for payment from the IRS.! If this notice is ignored a final notice is normally sent 30 days before the garnishment begins.! Sometimes this is not the case, they can still garnish your client s wages even if they do not physically receive a notice, especially if your client has moved and the IRS doesn't have their most current address.! Note: A garnishment will continue until the entire amount that is owed is paid back or there is another agreement that is made to pay these amounts back. 8

9 Liens and Levies! What's the difference between a Lien and a Levy?! Bank levy. A bank levy is very different. It attaches only the money in your client s account at the very moment the levy is received by their bank.! For example, If your client has $100 in your account at 9 AM and the bank logs in the levy at 10:00 AM and your client makes a deposit of $2,500 at 11:00 AM, the levy only attaches $100.! The bank levy is a "one shot deal ; the IRS gets what it gets. 9

10 Liens and Levies! What's the difference between a Lien and a Levy?! But, your client has checks outstanding to others! If your client has $2,500 in the bank at 9 AM and the levy is received at 9:30 AM, all of the checks your client wrote will bounce later in the day.! if the amount your client owes is less than what is in the account, the bank will attach only the amount owed.! Practice Note: You have some time to help your client provided they have come to see your early.! The bank may have removed the money from your client s account, but it will not send it to the IRS for 21 days. 10

11 Collection Due Process Hearing! What is a Collection Due Process Hearing (CDP)! CDP. The IRS Restructuring and Reform Act provides an important procedural right -- the "Collection Due Process Hearing."! These CDP hearings are mandated by IRC 6320 and 6330, which were added to the Code by the 1998 Act.! Require Notice. Under the Collection Due Process rules, immediately upon the filing of a notice of federal tax lien, and prior to the issuance of a levy, the IRS must provide notice regarding a taxpayer's right to an independent hearing in the Appeals Office. 11

12 Collection Due Process Hearing! IRC 6320 (Liens)! (a) Requirement of Notice:! (1) In general: The Secretary shall notify in writing the person described in section 6321 of the filing of a notice of lien under section 6323.! (2) Time and method for notice: The notice required under paragraph (1) shall be--! (A) given in person,! (B) left at the dwelling or usual place of business of such person, or! (C) sent by certified or registered mail to such person's last known address, not more than 5 business days after the day of the filing of the notice of lien. 12

13 Collection Due Process Hearing! IRC 6330 (Levies):! (a) Requirement of Notice Before Levy:! (1) In general: No levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made. Such notice shall be required only once for the taxable period to which the unpaid tax specified in paragraph (3)(A) relates.! (2) Time and method for notice: The notice required under paragraph (1) shall be--! (A) given in person,! (B) left at the dwelling or usual place of business of such person, or! (C) sent by certified or registered mail, return receipt requested, to such person's last known address, not less than 30 days before the day of the first levy with respect to the amount of the unpaid tax for the taxable period. 13

14 Collection Due Process Hearing! For both liens and levies, the CDP notice:! (i) must include information (in "simple and nontechnical language") about the proposed collection action and the procedures for seeking a hearing; and! (ii) The notice must contain a brief statement regarding the underlying law as well as the administrative alternatives by which the taxpayer can obtain a release of the lien or avoid the issuance of the threatened levy. 14

15 Collection Due Process Hearing! Request for Hearing! In the case of both liens and levies, the taxpayer has thirty days after the date of the CDP notice to file a request for a hearing.! If a timely request is filed, the Appeals Office will consider the case and render a written determination concerning the appropriateness of the lien filing or the proposed levy.! The request for a CDP hearing must be:! in writing, and! must contain the taxpayer's name, address, and phone number,! the type of tax and tax periods, and! a statement of the reasons the taxpayer disagrees with the filing of the lien or the threatened levy.! The request must be signed by the taxpayer or an authorized representative. While no specific format is required, the Service has just released a new form, the "Request for Collection Due Process Hearing" (Form 12153). 15

16 Collection Due Process Hearing! What can be argued at the CDP Hearing?! At the CDP hearing, the taxpayer may:! challenge the appropriateness of the lien or threatened levy,! raise available spousal defenses, and! offer collection alternatives.! But, the taxpayer cannot raise issues which were presented and considered at any previous CDP hearing or other previous administrative or judicial proceeding in which the taxpayer "meaningfully participated.! Substantive defenses to the underlying liability can be raised, but only if the taxpayer did not receive a statutory notice of deficiency (if applicable) or did not otherwise have an opportunity to dispute the tax. 16

17 Collection Due Process Hearing! Both IRC 6320 and 6330 contain the same parameters for the mandated hearing:! (c) Matters Considered at Hearing: In the case of any hearing conducted under this section--! (1) Requirement of investigation: The appeals officer shall at the hearing obtain verification from the Secretary that the requirements of any applicable law or administrative procedure have been met. 17

18 Collection Due Process Hearing! Both IRC 6320 and 6330 contain the same parameters for the mandated hearing:! (2) Issues at Hearing:! (A) In general: The person may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy, including--! (i) appropriate spousal defenses,! (ii) challenges to the appropriateness of collection actions, and! (iii) offers of collection alternatives, which may include the posting of a bond, the substitution of other assets, an installment agreement, or an offer-in-compromise.! (B) Underlying liability: The person may also raise at the hearing challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability. 18

19 Collection Due Process Hearing! Who will conduct the CDP Hearing?! Absent a waiver by the taxpayer, the hearing will be conducted by an Appeals Officer with no prior involvement in the case.! The standard to be applied in the CDP hearing is:! whether the proposed collection action "balances the need for the efficient collection of taxes with the legitimate concern of the person that any collection action be no more intrusive than necessary." 19

20 Collection Due Process Hearing! Stay of Collection Action! During the period of time prior to a requested CDP hearing, and for the time the Appeals Officer has the matter under consideration before issuing his or her written determination, enforced collection action will be withheld.! Note: The running of certain statutory limitations periods are also suspended during this time, including the statute of limitations on collection and the statute of limitations on criminal prosecution. 20

21 Collection Due Process Hearing! Judicial Review of CDP Decisions! If the CDP hearing in the Appeals Office does not produce a satisfactory resolution, the 1998 Act allows for judicial review.! Within 30 days of the date the Appeals Office issues its written determination, the taxpayer may seek review in the Tax Court or the appropriate Federal District Court.! The Tax Court is the proper forum for review if the underlying tax is of a type over which the Tax Court would normally have jurisdiction, such as income, gift and estate taxes.! Litigation will be in the District Court for determinations involving other types of liabilities, such as the trust fund recovery penalty and certain excise taxes. 21

22 Collection Due Process Hearing! Judicial Review of CDP Decisions! In any such judicial review the taxpayer cannot raise issues which were not raised in the CDP hearing.! This makes it extremely important to raise all possible issues in the Appeals Office hearing to avoid being foreclosed from raising such issues in subsequent CDP litigation.! The courts will review Appeals determinations as to the validity of the underlying tax (and any related innocent spouse defenses) on a de novo basis.! But, disputes over procedural matters, such questions of the appropriateness of collection actions, are subject to an "abuse of discretion" standard.! This standard makes it difficult for the taxpayer to convince the court to overturn the prior determination of the Appeals Office. 22

23 CDP Equivalent Hearings! Equivalent Hearings (not entirely equivalent, so don t miss deadlines).! It is important to know that even if the taxpayer fails to ask for a CDP hearing within the specified 30 day period, the Appeals Office will nevertheless provide an opportunity for a conference if asked.! The Service has coined the term "equivalent hearing" for such a proceeding.! The equivalent hearing will be substantially similar to the CDP hearing, with several important exceptions:! (i) the Service will not be under a statutory obligation to cease enforced collection action during the pendency of the hearing (although as a policy matter enforced collection action will probably be withheld anyway).! Statutory limitations periods will not be suspended.! (ii) unlike the formal CDP hearing, a taxpayer will not be entitled to seek judicial review from the Appeals Office determination resulting from an equivalent hearing. 23

24 CDP Retained Jurisdiction! CDP "Retained Jurisdiction" Hearings.! Once the Appeals Office takes jurisdiction over a case pursuant to the filing of a Request for Collection Due Process Hearing by the taxpayer, it retains jurisdiction for as long as collection activity continues in the case.! The retained jurisdiction hearing will arise when the taxpayer asserts that a change in circumstances warrants reconsidering the previous determination.! Over the long haul, taxpayers' personal and financial circumstances do often change.! When the Appeals Office is forced into a case by the filing of a Form 12153, the case will remain in the Appeals Office "inventory" for many months or years.! Appeals Officers become de facto Revenue Officers.! Like the "equivalent hearing" discussed above, the "retained jurisdiction" hearing does not extend the statute of limitations on collections, nor is the withholding of enforced collection action mandated. 24

25 Collections Appeals Program! Collections Appeals Program (CAP)! The Collection Appeals Program (or CAP) was adopted by the IRS in April 1996, and was expanded in January 1997.! Because tax laws and procedures grow by accretion, it remains in place along side the new Collection Due Process hearing structure.! The CAP program gives taxpayers the right to appeal a variety of collection actions, including liens, levies, seizures, and the threatened termination of installment agreements.! But, CAP doesn't cover certain important and common sources of conflict with the Collection Division.! Specifically, CAP doesn't cover:! 100% penalty,! penalty abatements and appeals of denials thereof, or! offers in compromise. 25

26 Collections Appeals Program! Collections Appeals Program (CAP)! Before your client is permitted to invoke the appeal rights available under the Collection Appeals Program, they must first discuss the disputed issues with the Revenue Officer's manager.! You should not assume that the manager will simply back up his or her Revenue Officer, though this is often what happens.! Each Revenue Officer carries so many cases in inventory that the manager is not on top of every action being taken in every case by every Revenue Officer in his group. 26

27 Collections Appeals Program! Collections Appeals Program (CAP)! However, to make any progress with the manager, you need to be prepared to present the facts in a brief, clear and coherent manner.! You must be prepared to suggest and defend a reasonable and appropriate alternative to the protested action.! You should document your compliance with CAP obligation to seek relief from the manager by appropriate correspondence or memo. 27

28 Collections Appeals Program! Initiating the CAP Process! The CAP process is initiated by filling a Form 9423, "Collection Appeal Request.! The form is submitted under penalties of perjury, and may be signed by either the taxpayer or (you) the taxpayers' authorized representative.! Collection action will usually be suspended while the Collection Appeal Request is being evaluated by the Service, but only if the Form 9423 is filed within two days of the manager conference.! If a seizure has been made, the taxpayer has ten business days from the date the Notice of Seizure is issued to file the appeal. 28

29 Collections Appeals Program! Initiating the CAP Process! Appeals Officers are expected to close CAP cases within five business days.! Usually they try to hold a conference within two days of receipt of the case, although taxpayers will be allowed a reasonable delay when warranted (generally not exceeding five business days).! The Appeals Officer will review the case based on the law, policy, procedures, and all the facts and circumstances.! NOTE: If it is determined that the collection action complained of is consistent with standard IRS policies and procedures, the action will be upheld. 29

30 Collections Appeals Program! Decision Process! Immediately upon making the decision in a CAP case, the Appeals Officer will inform both the Collection Division and the taxpayer, if possible within the five day time frame.! The decision may initially be given verbally, and then followed by a written closing letter.! Enforcement action may resume after notification of the decision if Appeals has sustained the Collection Division's position.! Decisions are binding on the taxpayer and the Collection Division.! The taxpayer may not thereafter appeal the same issue again, as for instance in connection with a subsequent levy on the same asset.! Note: Whereas a decision under the CDP hearing process can be the subject of judicial review, there is no such right with respect to an Appeals Officer's decision under the CAP program. 30

31 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! The Manual explains that the Office of the Taxpayer Advocate has the power to halt adverse collection actions:! Normal procedures and appeal processes should be used before resorting to an ATAO.! But, if these procedures or processes are not appropriate because they will not be timely in resolving the hardship, or were not followed and a "significant hardship" exists, an ATAO should be considered. 31

32 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! The Office of the Taxpayer Advocate, by issuing a Taxpayer Assistance Order (Form 9102) in response to an ATAO, can accomplish great things on behalf of a beleaguered taxpayer.! Specifically, a TAO can be issued to relieve "a significant hardship as a result of the manner in which the Internal Revenue laws are being administered. 32

33 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! When considered:! A TAO will be considered when all of the following factors are present:! (i) the taxpayer is suffering or about to suffer a "significant hardship" if relief is not granted; and! (ii) the significant hardship results from the manner in which the IRS is administering the law, and! (iii)tas does not have the authority to take the actions needed to grant relief to the taxpayer or to resolve a case issue, and! (iv) the Operating Division or Function (OD/Function) does not agree with TAS on the proper resolution of specific case issues, or the IRS fails to perform the actions recommended by TAS. 33

34 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! When considered:! A significant hardship includes:! an immediate threat of adverse action;! a delay of more than 30 days in resolving taxpayer account problems;! the incurring by the taxpayer of significant costs (including fees for professional representation) if relief is not granted;! irreparable injury to, or a long-term adverse impact on, the taxpayer if relief is not granted; 34

35 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! When considered:! A significant hardship includes:! a serious privation caused or about to be caused to the taxpayer as a result of the particular manner in which the revenue laws are being administered by the IRS. (Treas. Reg (a)(4)(ii))! Note: the regulations state that serious privation is more than mere economic or personal inconvenience.! In cases where any IRS employee is not following applicable published administrative guidance (including the IRM), TAS must analyze the factors taken into account in determining whether to issue a TAO in the manner most favorable to the taxpayer. See IRC 7811(a)(3) 35

36 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! What an a TAO do for my client?! A TAO is issued to direct the IRS to take an action within a specified period of time.! For example:! (i) To release a levy; or! (ii) To cease any action, take any action as permitted by law, or refrain from taking any action, with respect to the taxpayer under the following IRC chapters:! chapter 64 (relating to collection),! sub-chapter B of chapter 70 (relating to bankruptcy and receiverships), or! chapter 78 (relating to discovery of liability and enforcement of title) 36

37 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! What an a TAO do for my client?! A TAO only requires actions that are otherwise permitted by law, regulations, or other guidance.! They may not be issued to determine the merits of a taxpayer's liability or to overturn or circumvent an established process for administrative or judicial review of a taxpayer's case. 37

38 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! What an a TAO do for my client?! A TAO may be issued to require the IRS to:! Expedite consideration of the case;! Reconsider its determination in the case; or! Review the case at a higher level in the organization.! For example, a TAO cannot be issued to order a different result where a decision has been made with respect to innocent spouse relief.! But a TAO may be issued to have the denial of Innocent Spouse Relief reviewed at a higher level and may be accompanied by the CA's analysis of and recommendation for resolving the case. 38

39 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! The IRS Manual concedes that whether a certain set of facts constitutes a hardship is highly subjective.! According to the IRS, "enforcement action, in and of itself, is not a hardship without additional factors."! Your job, as the taxpayer's advocate, is to explain the consequences of the enforcement action.! Cite to those specific provisions of the Internal Revenue Manual which come closest to your client's situation. 39

40 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! What qualifies as a Hardship?! Hardships could include, but are not limited to:! (i) exceptional emotional stress experienced by taxpayers in dealing with tax problems,! (ii) the threat of a poor credit rating caused by erroneous enforcement action,! (iii) gross disservice to the taxpayer, pending eviction,! (iv) possible loss of job,! (v) the refusal to rescind a Statutory Notice of Deficiency when the statute is not in jeopardy, significant personal emergencies, or other situations of similar magnitude to the taxpayer. 40

41 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! What qualifies as a Hardship?! Hardships could include, but are not limited to:! (vi) imminent bankruptcy and failure to meet payroll could be considered hardship in specific circumstances.! For example, a hardship causing imminent bankruptcy could be in the situation where a delay occurs in processing a refund causing a poor cash flow situation that will force the taxpayer into bankruptcy.! An example of a hardship causing a failure to meet payroll could be a situation where a levy is served on a payroll account when there are alternative sources of collection. 41

42 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! The Manual then follows the above expression of general principles with several specific examples:! (i) A wage levy that impaired the taxpayer's ability to purchase needed medication or medical care.! (ii) The Service's unawareness causes an unintentional negative impact and would qualify for an ATAO if the employee contacted cannot or will not relieve the hardship.! (iii) A payment is not properly applied to a taxpayer's account, thus prohibiting the taxpayer's receipt of a re-fund. After numerous contacts with the Service, supplying dates, the taxpayer is suffering emotional stress and files a Form 911 for relief. 42

43 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! the goal is to explain in the Form 911 how the taxpayer's situation fits the standards in the Code and in the Manual.! One of the many benefits to pursuing the ATAO procedure is that the Service must respond very quickly.! Although sometimes viewed more as a goal than a requirement, the Manual provides that the Taxpayer Advocate will generally make a determination within two days of receipt of the hardship verification.! For cases involving enforcement actions, the Taxpayer Advocate will make the relief determination within one day of receiving the results of the "functional review. 43

44 Taxpayer Assistance Order (TAO)! Application for Taxpayer Assistance Order! the goal is to explain in the Form 911 how the taxpayer's situation fits the standards in the Code and in the Manual.! One of the many benefits to pursuing the ATAO procedure is that the Service must respond very quickly.! The functional review is a process by which the Taxpayer Advocate sends the case to the IRS unit involved in the matter for consideration.! Importantly, the Manual requires that the "function" suspend all enforcement actions until a final decision on relieving the hardship is made, and must report back to the Taxpayer Advocate within two days unless a different deadline is established.! If the Taxpayer Advocate disagrees with the function's findings, he or she will discuss the issue with the division chief, with the Taxpayer Advocate having the power to overrule the chief and issue a Taxpayer Assistance Order when they cannot reach agreement. 44

45 Installment Agreements! Installment Agreements! If the IRS agrees, your client may qualify for any one of several forms of installment agreements. This section of the presentation will review the basic types and what it takes to qualify for relief, although often its subjective. 45

46 Installment Agreements! A monthly payment plan is generally the easiest way to set up an arrangement to pay off any taxes owed to the Internal Revenue Service.! There are four (4) different types of installment agreements offered by the IRS. Knowing which installment agreement your client qualifies for, is the key when talking to the IRS.!!!! 46

47 Installment Agreements! Guaranteed Installment Agreements! The IRS is required to agree to an installment plan if your client's balance due is $10,000 or less and your client meets all of the following criteria:! For the previous five years they haven't filed late or paid late.! All of their tax returns are filed.! Their monthly installment payments will pay off your balance in 36 months or less.! They have had no installment agreement in the previous five years.! They agree to file on time and pay on time for future tax years. 47

48 Installment Agreements! Guaranteed Installment Agreements! The minimum monthly payment the IRS will accept is the grand total of your client s balance due (including penalties and interest) divided by thirty.! The main benefit of a guaranteed installment agreement is that the IRS will not file a federal tax lien.! Tax liens are reported to the credit bureaus and negatively impact the ability to obtain credit.! The IRS will also not ask your client to fill out a financial statement (Form 433-F) in an effort to analyze their current financial situation. If they don't meet the criteria for a guaranteed installment agreement, you might then consider a streamlined installment agreement. 48

49 Installment Agreements! Streamlined Installment Agreements! The IRS will approve an installment plan if your client s balance due is $25,000 or less, and they agree to pay off the balance in 60 months or less.! If your client s balance will expire within this five-year period due to the ten-year statute of limitations, then the IRS will require full payment within the remaining statute of limitations.! The minimum payment the IRS will accept is the grand total of your client s balance due (including penalties and interest) divided by fifty.!!!! 49