HCUL TECHNICAL DATE PAGE ADVISORY GUIDE 11/01/94 IIIG 1 INTERNAL REVENUE SERVICE LEVIES

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1 ADVISORY GUIDE 11/01/94 IIIG 1 OVERVIEW The Internal Revenue Service (IRS) has at its disposal the power to seize a member's funds through a levy. If the IRS determines a member owes it money (for whatever reason) and learns the member has an account at your credit union, the IRS can require your credit union to turn over those funds. Credit union employees must examine each levy and follow instructions carefully. A levy attaches all of a member's funds on deposit, including share drafts and certificates. Funds used to secure loans, probably are exempt from a levy. If you have doubts, contact your attorney. The consequences of being wrong can be disastrous. Failure to be thorough in this area can result in serious damages. Your credit union should have ironclad policies and procedures relating to compliance with an IRS levy. If you neglect to forward every dollar owed under the conditions of an IRS levy, your credit union may be liable for the shortfall, plus an additional penalty of up to 50% of the original amount owed. With a margin of error so slim and consequences so severe, the slightest question should trigger diligent research.

2 ADVISORY GUIDE 11/01/94 IIIG 2 I. IRS 21-DAY RULE The IRS has issued a final regulation on the requirement that credit unions hold funds for 21 days after receipt of an IRS levy before turning them over to the IRS. The regulation became effective on January 4, Credit union responsibilities include: A. When a levy is made on a member's deposits to the credit union, the levy attaches to funds in the account at the time of the levy and up to the amount of the levy. The levy attaches to funds not otherwise subject to an attachment or execution under judicial process. The levy does not attach to funds deposited after the receipt of the levy. B. During the 21 day-period, the member may not withdraw any funds to which the levy is attached. C. At the end of the 21-day holding period, the credit union is to surrender the funds to the IRS district director on the first business day after the holding period. D. The credit union surrenders to the IRS the funds and any interest that accrued on the attached funds prior to or during the holding period, but never an amount greater than the amount of the levy. E. If the credit union pays any interest from the account to the IRS, the CU still reports that interest as paid to the member during the year. F. A member may waive the 21-day holding period by notifying the credit union of this intention. G. On a multiple owner account, all owners must agree to the waiver. The credit union should indicate that each owner has agreed to the waiver.

3 ADVISORY GUIDE 11/01/94 IIIG 3 H. IRS regulations provides your credit union and staff with relief from liability to the delinquent taxpayer if the credit union has made a good faith determination that the funds are properly subject to levy before surrendering the funds. You may rely on your records for this review. I. The credit union cannot release the levy without notification by the IRS district director. J. The levy can be extended by the IRS. K. If the member believes there is an error, the member is to notify the IRS district director by telephone to the number listed on the face of the levy notice which the member should have received. IMPORTANT REMINDER: Any disagreement about the levy is between the member(s) and the IRS.

4 ADVISORY GUIDE 11/01/94 IIIG 4 II. ACCOUNT OWNERSHIP A. Joint accounts There is frequently a problem when there is a joint account, and the levy is against only one person on the account. The levy attaches to any funds in that account up to the amount of the levy even if the member, who is not party to the levy, states that the funds really only belong to him/her. It is not the responsibility of the credit union to attempt to settle this question. (Source: Regulatory Monitor #1-93) B. Trust accounts If your credit union should receive a levy against a trust account, keep in mind the following: 1. In a revocable trust, the funds are subject to a levy against the trustor, if the trustee and the trustor are the same person according to the IRS, "if the individual has access to the money, the funds are subject to the levy". 2. The IRS will handle any disputes directly with the member.

5 ADVISORY GUIDE 3/08/07 IIIG 5 III. TYPES OF ACCOUNTS A. Share draft accounts Funds held in a share draft account may be levied against. Once the levy is in place, the funds are no longer available to clear drafts regardless of when the drafts were written. We recommend that the credit union notify the member as a member service measure if drafts will not be paid because of the frozen funds from the levy. This will allow the member the opportunity to resolve any outstanding checks. The credit union is not liable to the member for returned checks that result from the IRS levy. B. Certificates of deposit/share or term certificates Certificates of deposit (CDs) are not exempt from an IRS levy. When funds from a CD are needed to satisfy the levy, the credit union may impose the same penalty that would apply if the member were to close the CD out early. REMEMBER -- if the member would not be entitled to dividends due to early withdrawal, then the IRS is not entitled to dividends. C. Individual Retirement Account (IRA) Funds in an IRA are not exempt from a levy, however, it is IRS practice not to levy IRA funds unless it is a flagrant case and there are no other assets available for levy. The levy will usually state that it does not attach to IRA funds. If the levy has no such statement, attach all other accounts first before attaching any IRA accounts. If the levy does attach to IRA funds the distribution is not subject to the 10% early distribution tax. (the IRS code was revised in January 2000 to include this exemption) The member is still responsible for income taxes on the distribution.

6 ADVISORY GUIDE 11/01/94 IIIG 6 D. Loans Your credit union's loan security agreement may specify that a loan is secured by all shares and deposits in all accounts. The IRS has stated that if the funds are available for withdrawal by the member, then they are subject to the levy. Absolute liens such as a share secured loan has priority over a federal tax lien and is not subject to the levy.

7 ADVISORY GUIDE 11/01/94 IIIG 7 IV. MISCELLANEOUS A. Minimum balance requirement B. Fees To satisfy the levy, it may be necessary to surrender all funds in the account. You may not retain the minimum amount that your credit union requires to keep the account open. As a courtesy, we recommend that you notify your member that it will be necessary to make a deposit in order to maintain their membership. Your own bylaws should state the appropriate time period in this instance. 1. The IRS has specified that it can levy against the amount a member can withdraw. The credit union may not deduct a fee from the amount subject to levy. You may charge the member a levy processing fee. Example: PAU HANA Credit union receives a $1,500 IRS levy on Leilani Member's account. Leilani has $2,000 in her regular share account. The credit union sends the IRS $1,500 and debits Leilani's account for the amount of the fee. Using this same example, suppose Leilani has $1,500 in her regular share account. In this case, the credit union would surrender the full $1,500 to the IRS and collect the levy processing fee from Leilani.

8 ADVISORY GUIDE 11/01/94 IIIG 8 2. We suggest that your credit union establish a "reasonable fee" based on your actual costs. Usual fees range anywhere from $5 to $25, depending on your staff time and administrative costs necessary to comply with the levy. With the advent of the Truth in Savings regulation, we recommend that you disclose the levy processing fee in your account terms.

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