IRS Enforced Collection Actions: Challenges and Responses to Federal - - PowerPoint PPT Presentation

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IRS Enforced Collection Actions: Challenges and Responses to Federal Tax Liens and Levies

Mitigating the Effects of Tax Liens, Navigating the Levy and Asset Seizure Process

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, FEBRUARY 14, 2017

Presenting a live 90-minute webinar with interactive Q&A Venar R. Ayar , Esq., Founder and Tax Attorney, Ayar Law, Southfield, MI Erica Good Pless, J.D., LL.M., The Pless Law Firm, St. Petersburg, Fla.

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FEDERAL TAX LIENS

ERICA GOOD PLESS ERICA@THEPLESSLAWFIRM.COM

IRS Enforced Collection Actions

February 14, 2017

Tax Lien vs. Tax Levy

• What is a Federal Tax Lien?
• When a tax liability goes unpaid after demand a legal claim arises by law

against the taxpayer for the amount of taxes, interest, and penalties owed by the taxpayer. (Internal Revenue Code §6321)

• Secret lien, statutory lien – Automatically comes into existence at the

time of assessment

• Notice of Federal Tax Lien (NFTL) – IRS files a public notice to creditors

that a taxpayer owes taxes. The lien attaches to all of the taxpayer’s current and future property and rights to property, whether real or personal, to the extent of the taxpayer's interest in the property.

• The Service is not required to file a NFTL in order for the tax lien to

attach but IRC 6323(a) requires it to be filed in order to have priority

• The government’s method of securing its interest in a taxpayer’s

property

• No property is exempt (one rare exception)
• Not a seizure of property

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Tax Lien vs. Tax Levy

• What is a Federal Tax Levy?
• Legal seizure of property or rights to property to satisfy a tax
• liability. (Internal Revenue Code §§6330 and 6331)
• Bank levy, wage garnishment
• Property seizure – IRS takes physical custody of a taxpayer’s

property in order to sell it

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Notice of Federal Tax Lien Timeline

• Tax liability is assessed against taxpayer
• Taxpayer doesn’t pay liability (approx. 30 days)
• IRS issues demand for payment – CP 501 notice (upper right hand

corner of IRS letter)

• If you don’t pay the amount due or call us to make payment

arrangements, we can file a Notice of Federal Tax Lien on your property at any time, if we haven’t already done so.

• If the lien is in place, you may find it difficult to sell or borrow

against your property. The tax lien would also appear on your credit report – which may harm your credit rating – and your creditors would also be publicly notified that the IRS has priority to seize your property.

• Taxpayer doesn’t pay liability
• IRS may file a Notice of Federal Tax Lien (approx. 30 days)

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Avoiding a Notice of Federal Tax Lien

• Unlike a tax levy, IRS is not required to issue a Notice of Intent to file

a federal tax lien

• Demand for payment is the only formal notice a taxpayer will

receive prior to a lien being filed

• What can you do to stop a lien from being filed?
• Pay liability in full
• Request an extension to pay (120 days max)
• Pay the balance below $50,000 and agree to a direct debit

installment agreement that will full pay the balance within 60 months (IRS has discretion whether to file a lien in this case)

• Submit a hardship request with the Taxpayer Advocate Service
• IRS Form 911

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Collection Appeals Program (CAP)

• Collection Appeals Program (CAP)
• A taxpayer may use CAP to appeal the proposed filing of a Notice
• f Federal Tax Lien (NFTL), the actual filing of an NFTL at the

first and each subsequent filing of the NFTL, denial of Application for Withdrawal.

• Revenue Officer tells taxpayer he/she is going to file a tax lien.
• Under CAP rules, the taxpayer must first contact the Revenue

Officer’s manager. If unable to resolve dispute with the manager then submit IRS Form 9423 for Appeals consideration within 3 business days of the conference with the manager.

• Appeals generally will review the case within 5 business days.
• Phone conference
• Not very useful other than to delay lien filing a few days

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Notice of Federal Tax Lien

• Taxpayer receives Notice of Federal Tax Lien - IRS Form 668 (Y)(c)
• IRC §6320(a) requires IRS to notify a taxpayer in writing within 5

business days after the filing of the notice of tax lien

• Mailed to taxpayer’s last known address by certified mail
• IRC §6320(b) allows taxpayers to file a Collection Due Process

Hearing within 30 days of the Notice

• IRS Form 12153
• IRS Office of Appeals
• Telephone conference with Appeals Officer
• Appeals will issue a Notice of Determination on whether the

tax lien should be withdrawn, released, discharged or subordinated

• If you disagree with the determination you have 30 days

from date of Determination to file a Tax Court petition

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Notice of Federal Tax Lien

• Taxpayer receives Notice of Federal Tax Lien
• 30 days have passed to file for the Collection Due Process Hearing
• What can you do?
• File Equivalent Hearing
• IRS Form 12153 – Must check the box on line 7
• IRS Office of Appeals
• Telephone conference with Appeals Officer
• Appeals will issue a Notice of Determination on whether the

tax lien should be withdrawn, released, discharged or subordinated

• If you disagree with the determination you cannot go to

Tax Court

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Challenges to Notice of Federal Tax Lien

 Challenges to Notice of Federal Tax Lien

 Certificate of Release of Federal Tax Lien  Withdrawal of Filed Notice of Federal Tax Lien  Certificate of Discharge  Subordination  Non-attachment

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Certificate of Release of Notice of Federal Tax Lien

• Certificate of Release of Federal Tax Lien - IRS Form 668(Z)
• Certificate of Release extinguishes the statutory tax lien.
• IRS must issue a formal Certificate of Release within 30 days in

the following cases:

• Taxes, interest, penalties and fees are paid in full
• Taxpayer satisfies payment terms through an Offer in

Compromise

• Liability becomes legally unenforceable because the statute of

limitations for collection has expired

• Generally 10 years from date of assessment (exceptions

apply) Internal Revenue Code §6325(a)

• IRS accepts a bond guaranteeing payment of the debt

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Certificate of Release of Notice of Federal Tax Lien

• The lien is self-releasing if:
• Date for refiling has passed and
• The IRS has not refiled the Notice of Federal Tax Lien
• Review column (e) on the federal tax lien, “Last Day for Refiling”

to determine if the lien is self released

• May be different self-releasing dates for different periods
• The Notice of Lien will not be considered fully released until

all the liabilities shown have been satisfied or self-released.

• Important Release Information: For each assessment listed

below, unless notice of the lien is refiled by the date given in column (e), this notice shall, on the day following such date,

• perate as a certificate of release as defined in IRC 6325(a)

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Requesting a Certificate of Release

 If the Federal tax lien has not been released by the

30 days, you can request a Certificate of Release of Federal Tax Lien.

 The request must be in writing and should be mailed to the

Advisory Group servicing your area. Use Publication 4235, Collection Advisory Group Addresses, to determine the address to mail your request.

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Withdrawal of Notice of Federal Tax Lien

• Withdrawal of Notice of Federal Tax Lien
• What is a withdrawal?
• A Withdrawal of the Notice of Federal Tax Lien is different

than a Certificate of Release of Federal Tax Lien. A Withdrawal only removes the effect of the NFTL whereas the Certificate of Release releases both the NFTL (paper document) and extinguishes the statutory tax lien. (Internal Revenue Manual 5.12.9.2 (10-14-03))

• IRS Form 12277 Application for Withdrawal of Filed Notice of

Federal Tax Lien

• A withdrawal may be issued even though the tax liability has not

been fully satisfied.

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Withdrawal of Notice of Federal Tax Lien

 IRC 6323(j) allows IRS to withdraw a Notice of Federal Tax Lien in the

following circumstances:

 Filing of the Notice was premature or IRS didn’t follow proper

procedures (IRC 6323(j)(1));

 Taxpayer entered into an installment agreement under IRC

§6159 to satisfy the tax liability unless the agreement provides

• therwise (IRC 6323(j)(1)(B));

 Withdrawal will facilitate the collection of the tax liability (IRC

6323(j)(1)(C));

 With the consent of the Taxpayer Advocate Service, the

withdrawal of such notice will be in the best interest of the taxpayer and the U.S. government. (IRC 6323(j)(1)(D))

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Withdrawal under IRC §6323(j)(1)

 Examples (IRM 5.12.9.3.1 12-7-15)

 The person responsible for the filing of the NFTL has

knowledge that the taxpayer has an undisputed credit available as the result of a filed return that will satisfy the liabilities on the lien, such as a carryback, overpayment, adjustment, etc.

 Filing of the NFTL is premature.  The taxpayer has filed bankruptcy and the NFTL is filed while

the automatic stay is in effect.

 Filing of the NFTL is not in accordance with the Service’s

administrative procedures and must be withdrawn.

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Withdrawal under IRC §6323(j)(1)(B)

 Examples (continued)

 A taxpayer enters into an installment agreement that provides

for the filing of a NFTL if the taxpayer defaults. The taxpayer pays the installments each month and has not defaulted. Ten months after entering into the agreement a NFTL is filed.

 Because the taxpayer is under an installment agreement and has

not defaulted, the NFTL should be withdrawn because the taxpayer is in compliance with the terms of the agreement.

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Withdrawal under IRC §6323(j)(1)(B)

 2011 Fresh Start Program

 IRS will grant lien withdrawals under IRC §6323(j)(1)(B) if the

taxpayer meets the following conditions:

 Taxpayer has entered into a direct debit installment agreement  Balance is $25,000 or less  The total tax liability will be full paid within 60 months  Taxpayer is in compliance with all other filing and payment

requirements

 Taxpayer has made 3 consecutive monthly payments

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Withdrawal under IRC §6323(j)(1)(B)

 2011 Fresh Start Program

 IRS will issue a Withdrawal if the taxpayer meets the following

conditions:

 Tax liability has been fully satisfied;  IRS has issued a Certificate of Release;  Taxpayer has been in compliance for the past 3 years of tax filings;  Taxpayer is current on his/her estimated tax payments and federal

tax deposits.

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Withdrawal Under IRC §6323(j)(1)(C)

 Withdrawal will facilitate the collection of the tax

liability

 A NFTL has been filed in the name of a taxpayer who has no

assets, is unlikely to ever acquire assets of any real value, and has no other secured creditors. The taxpayer agrees to pay the balance of tax due through payroll deductions at a rate higher than the Service could obtain through a wage levy in order to get the NFTL withdrawn.

 The NFTL may be withdrawn because doing so will facilitate

collection of the tax liability.

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Withdrawal Under IRC §6323(j)(1)(C)

 Withdrawal will not facilitate the collection of the tax

liability

 A taxpayer requests withdrawal of a NFTL so that she can

improve her credit score and purchase a new vehicle. The new vehicle is not necessary for her to perform her job duties or generate income which would assist in satisfying the liability.

 Withdrawal of the NFTL is not appropriate because doing so

would not facilitate collection of the tax liability. If the taxpayer can demonstrate that the vehicle is necessary to generate income that is being used to make installment payments the lien may be withdrawn.

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Withdrawal Under IRC §6323(j)(1)(D)

 To be considered for a withdrawal under the best

interest provisions two determinations are required:

 One by the taxpayer or by the National Taxpayer Advocate

(NTA) (or designee) with respect to the taxpayer; and

 One by the Secretary (or designee).

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Send Withdrawal to Credit Reporting Agencies

 Request IRS to send Withdrawal to credit reporting

• agencies. Request must be in writing (cover letter to

Form 12277) and must include:

 Taxpayer’s name, current address, and taxpayer identification

number with a brief statement authorizing the additional notifications;

 A list of the names and addresses of any credit reporting

agencies, financial institutions, or creditors to notify of the withdrawal;

 A copy of the notice of withdrawal, if available (for requests

subsequent to the issuance of the withdrawal); and

 A statement authorizing disclosure of the information to the

third parties.

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Effect of Withdrawal

 When a Notice of Federal Tax Lien is filed it is

reported on a taxpayer’s credit report. Even if a Certificate of Release is issued the original lien and the Release may stay on a taxpayer’s credit report for 7 years after the date of the release.

 A Withdrawal submitted to the credit reporting

agencies removes references of the Notice of Federal Tax Lien from the taxpayer’s credit report.

 Poof! It’s gone!

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Withdrawal Request is Denied

 If Application for Withdrawal is denied:

 During timely CDP Hearing  File Tax Court petition  During Equivalent Hearing  Can’t challenge in Tax Court but can submit Form 12277 to IRS to

see if you get a different outcome

 After submitting Form 12277  Submit an Appeal under CAP (Refer to slide # 6)  IRS Form 9423

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Certificate of Discharge

• A Certificate of Discharge under IRC §6325(b)

removes the United States’ lien from the property named in the certificate

• This doesn’t mean the liability goes away, just that

the lien is no longer attached to the specific property

• Application Form 14135
• 6 different options for getting a lien discharged
• Estate tax lien discharge under §6325(c) not

covered here

• Form 4422

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Discharge under IRC §6325(b)(1)

 IRC §6325(b)(1) – a discharge may be issued under

this provision if the value of the taxpayer’s remaining property encumbered by the federal tax lien is equal to at least twice the amount of the federal tax liability secured by the lien and any encumbrance entered into before the IRS filed its public notice of the lien.

 Sale of a portion of the TP’s property  If there are mortgages, state and/ or local taxes, mechanics

liens, etc., the amount of these debts would be added to the amount of the tax liability and multiplied by 2.

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Discharge under IRC §6325(b)(1)

 Modified example from IRS Publication 783:

 Tax liability = $15,000  Mortgage = $25,000  Total = $40,000  Multiply X 2 = $80,000  The value of the property remaining subject to the lien must be

at least $80,000. If TP gets a discharge on Parcel A then Parcels B and C would still be subject to the lien.

A B C

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Discharge under IRC §6325(b)(1)

 An application under IRC § 6325(b)(1) is not

considered unless the taxpayer:

 is in filing compliance,  is current with Federal Tax Deposits (FTD) or estimated

income tax (ES) payments, and

 balance due accounts have been addressed (e.g., the taxpayer

has made arrangements to pay, submitted an offer in compromise, been deemed uncollectible due to hardship).

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Discharge under IRC §6325(b)(2)(A)

 IRC §6325(b)(2)(A) – a discharge may be issued

under this provision when the tax liability is partially satisfied with an amount paid that is not less than the value of the United States’ interest in the property being discharged.

 Unsatisfied tax liability remains owed by TP  New owners have clear title to property

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Discharge under IRC §6325(b)(2)(A)

 Modified example from IRS Publication 783

 The IRS has a lien totaling $200,000  Property selling for: $215,000  Minus encumbrances senior to IRS lien: $135,000  Minus proposed settlement costs: $15,000  The IRS lien interest equals: $65,000  After the IRS receives and applies the $65,000 in partial

satisfaction of the tax liability, there remains an outstanding tax debt of $135,000.

 The lien has been discharged from this property so new owners

have clear title.

 TP still owes $135,000 and lien remains attached to all of TP’s

• ther property.

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Discharge under IRC §6325(b)(2)(B)

 IRC §6325(b)(2)(B) - a discharge may be issued

under this provision when it is determined that the government’s interest in the property has no value. The debts senior to the federal tax lien are greater than the fair market value of the property or greater than the sale value of the property.

 Submit a copy of the proposed escrow agreement as part of the

application.

 Foreclosure/short sale situation

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Discharge under IRC §6325(b)(3)

 IRC §6325(b)(3) – a discharge may be issued under

this provision if an agreement is reached with the IRS allowing the property to be sold. Per an escrow agreement the sale proceeds must be held in a fund subject to the claims of the United States in the same manner and priority the claims had prior to the property being discharged.

 Submit a copy of the proposed escrow agreement as part of the

application

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Discharge under IRC §6325(b)(4)

 IRC §6325(b)(4) – a discharge will be issued under

this provision to a third party who owns the property if a deposit is made or an acceptable bond provided equal to the government’s interest in the property.

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Discharge under IRC §6325(b)(4)

 If you are the property owner (but not the taxpayer,

i.e., you are not responsible for the tax liability) and you make a deposit or post an acceptable bond to

• btain a discharge under this section, you have 120

days to file an action in federal district court, under §7426(a)(4), challenging the IRS’ determination of the government’s lien interest.

 This is the exclusive remedy available to the third party for the

return of the deposit or accepted bond or a portion thereof.

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Certificate of Discharge

 Notes on Application Form 14135

 Select correct basis for discharge  Send all required supporting documentation (appraisal, deed, sales

contract)

 If required to submit payment send certified cashier’s check or

processing will be delayed

 Submit application at least 6 weeks prior to closing on real estate  Attorney fees usually capped to $1,500 unless extraordinary

circumstances

 IRS will scrutinize transactions between related parties, specially if

value is low

 Mail to IRS Advisory Group Manager  If denied follow CAP procedures (refer to slide #6)  Refer to IRS Publication 783 for additional instructions

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Certificate of Subordination

 A Certificate of Subordination under IRC

§6325(d)(1) and §6325(d)(2) allows a named creditor to move their junior creditor position ahead

• f the United States’ position for the property named

in the certificate.

 Refinance  Form 14134

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Subordination under IRC §6325(d)(1)

 IRC §6325(d)(1) - a subordination may be issued

under this section if you pay an amount equal to the lien or interest to which the certificate subordinates the lien of the United States.

 Example:  Original Mortgage = $145,000  Refinance loan amount = $160,000 (assume FMV same)  Closing costs = $5,000  Equity = $10,000  TP would need to pay IRS $10,000 in return for subordinating its

• lien. The lien remains on the property but the refinanced loan has

priority over the federal tax lien.

41

Subordination under IRC §6325(d)(2)

 IRC §6325(d)(2) – a subordination may be issued

under this section if the IRS determines that the issuance of the certificate will increase the amount the government realizes and make collection of the tax liability easier.

 Refinance to a lower interest rate which would, if the

subordination were granted, allow a larger monthly repayment rate on the tax liability.

42

Certificate of Subordination

 Notes on Application Form 14134

 Select correct basis for subordination  Send all required supporting documentation (appraisal, proposed

closing statement, title report)

 If required to submit payment send certified cashier’s check or

processing will be delayed

 Submit application at least 6 weeks prior to closing on real estate  Attorney fees usually capped to $1,500 unless extraordinary

circumstances

 IRS will scrutinize transactions between related parties, specially if

value is low

 Mail to IRS Advisory Group Manager  If denied follow CAP procedures (refer to slide #6)  Refer to IRS Publication 784 for additional instructions

43

Certificate of Non-Attachment

 IRC §6325(e) - a Certificate of Non-Attachment of

Federal Tax Lien may be issued when any person is,

• r may be, injured by the appearance that a Federal

tax lien attaches their property.

 Most commonly requested when a person with a similar name

is confused for the taxpayer named on the Notice of Federal Tax Lien

 Can also be requested for other situations to clarify the

attachment of the lien to certain property

 No IRS form available – draft letter to IRS Advisory Group

Manager

 IRS Publication 1024

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Judicial Relief

 IRC § 7432: TP can sue the federal government for damages

in federal district court if any officer or employee of the IRS knowingly or by reason of negligence, fails to release a lien.

 Recovery is limited to actual, direct, economic damages

sustained by the TP which, but for the actions of the IRS, would not have been sustained, plus the costs of the action. Litigation and administrative costs cannot be recovered under IRC § 7432.

 TP must exhaust all administrative remedies available within

the IRS prior to initiating a civil action in federal district court.

 Submit a written request for a release of the NFTL to the area office

where the NFTL was filed or where the taxpayer currently resides; and

 Submit an administrative claim for damages

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AYARLAW.COM

IRS Enforced Collection Actions: Challenges and Responses to Federal Tax Levies

Presented by: Venar Ayar, J.D., LL.M.

Founder of Ayar Law Southfield, Michigan

Venar Ayar, founder

AYAR LAW

Michigan tax lawyer, Venar R. Ayar, founder of Ayar Law, holds ten years of experience as an accounting specialist and tax lawyer. He earned his Juris Doctor at the University of San Diego School of Law, receiving a Master of Laws in Taxation, the highest degree available in tax. His main focus has become Michigan tax resolution as well as IRS tax resolution, including individual and business tax matters; tax planning, tax compliance and white-collar criminal defense. His business background has helped him to become personable and understanding in his work. Representing clients before the IRS, Ayar’s practice and experience has proved him as an honest and dedicated leader in the realm of Michigan tax lawyers. Venar R. Ayar, LL.M

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Pursuant to 26 USC §6331, the IRS has the authority to collect unpaid taxes by issuing a levy against any property and rights to property belonging to the debtor.

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• Bank Accounts
• Wages
• Accounts Receivable
• Social Security Payments
• Other Federal Payments

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• One-Time Levies
• Recurring Levies

There are generally two types of levies:

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One-time levies are what they sound like;

• A one-time seizure of an asset.
• A common example is a bank account. An

IRS levy on a bank account would take the money out of the account one time.

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Continuous levies are recurring until released.

• Think wage garnishments.

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There are a series of steps the IRS must adhere to in the Collections Process, from Assessment to Levy.

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First step in the collection process is an Assessment.

• The issuance of a bill.
• Without an assessment, no balance is

due, so there can be no levy.

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Assessments generally happen in one of three ways:

• Tax Return Filed
• Tax Return Filed on your behalf
• Audit or other Determination

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After Assessment, there are a series of notices that have to go out prior to levy

• Notice and Demand for Payment
• Notice of Intent to Levy
• Notice of right to Collection Due
• Process (CDP) hearing

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30 days after the CDP Notice is issued, the IRS can issue levies, unless steps are taken to prevent or delay the levy.

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There are two types of Holds:

• Statutory Holds
• Administrative Holds

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Collection Due Process Appeal

• The Due Process Clause of 5th Amendment of the

Constitution prohibits the government from depriving you

• f property without Due Process of Law.
• Due Process of Law means that you must be provided

with notice, and an opportunity for a hearing, before you are deprived of any property.

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Collection Due Process Appeal

• The CDP Notice is designed to comply with this

requirement.

• No Levies can be issued until a CDP notice has

been issued, and you miss your deadline for the appeal.

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Collection Due Process Appeal

• You have 30 days from the date of the CDP Notice to file a

request for a Collection Due Process Hearing (Form 12153).

• No levies can be issued if a hearing is requested.

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Collection Due Process Appeal

• At the CDP Hearing, you have an opportunity to propose
• ther collection alternatives to a levy and, in some cases,

challenge the tax liability itself.

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Collection Due Process Appeal

• After a CDP hearing, if you do not come to agreement

with the appeals officer, you get a Notice of Determination, which gives you a right to petition the Tax Court, further delaying any levies.

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Propose Installment Agreement

• If an Installment agreement is pending, or in effect, no

levies can be issued.

• All returns must be filed to qualify for an Installment

Agreement.

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Establish a Financial Hardship

• If, based on a review of the taxpayer’s current financial

position, they are unable to make any payments, they will be placed into “hardship”status, and no levies will be issued File Bankruptcy

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• Ask for a collection hold
• File an Equivalent Hearing Request
• Full-pay promise

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Establish a Financial Hardship

• If, after review of taxpayer’s financial condition, it is

determined that the levy is causing an economic hardship, levy will be released.

• Can be full or partial release, depending on the economic

hardship.

• Need to fill out Collection Information Statement.

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Establish Installment Agreement If taxpayer proposes an acceptable installment agreement, the levy must be released once the agreement is established.

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Full-Pay Balance Due If the balance due is paid in full, the levy can be released. File Bankruptcy

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Thank you

AYARLAW.COM