| LEGAL
DISCLAIMER I am not a Tax Lawyer, Nor do I play Dan Evans on the internet. I am not a Certified Public Accountant, Nor do I play Paul Thomas on the internet. I am not an Enrolled Agent, Nor do I play Richard Macdonald on the internet. DO NOT TAKE MY WORD FOR ANYTHING ON THIS PAGE. Go look it up for yourself. |
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is just a temporary page tossed together for the purpose of exposing
some details to TrialBlogs that I have not yet composed into a 'proper'
page. This is an unformatted partial passage from another of my
writings. Since this is a quick and dirty posting, the
substantiating links are not yet installed, however the sources of the
citations are listed, so you can confirm the words with your own search. A “NOTICE” of Levy is NOT a “LEVY”.
xxx. The online Internal Revenue Manual (IRM) in section 1.11.4.5 paragraph 1 states, “Each delegation order must include the elements described below.” xxx. The online Internal Revenue Manual (IRM) in section 1.11.4.5 paragraph 1(a) states, “Title: Provide a brief topical title. Reflect the subject matter covered rather than duplicate the specific authority as stated within the order itself. Do not include any parenthetical information.” xxx. The online Internal Revenue Manual (IRM) in section 1.11.4.5 paragraph 1(b) states, “Authority: Provide a clear statement of the authority being delegated. Any difficulty in doing so might indicate that there are several authorities in issue, which should be broken down within the Delegation Order, or provided as separate Delegation Orders. This provision setting forth the authority being delegated, and the following provision setting forth the delegates, should be confined to effecting the delegation and should not include any extraneous material or explanation. Although all delegations of authority are necessarily subject to the restrictions of pertinent laws and administrative requirements, it is not practical to include extensive reference to such restrictions in a delegation order. Curt references to important limitations may be made where prudent.” xxx. Such “restrictions of pertinent laws” would also include Constitutional restrictions, such as the Fifth Amendment restriction on taking of property without Due Process and the Fourth Amendment restriction on seizing properly without a sworn warrant of probable cause. Also included is a Constitutional restriction that will be examined in detail below. xxx. The online Internal Revenue Manual (IRM) in section 1.11.4.5 paragraph 1(c) states, “Delegated to: Enter the title of the employee or position to whom the authority is delegated. Consideration must be taken to delegate authority to the lowest level keeping in mind that all positions within the chain of command up to and including the Commissioner have the same authority. For example, a delegation to a GS-09 Revenue Officer constitutes a delegation to the supervisory group manager, branch chief, etc. To determine the lowest appropriate level, originators may need to research field responsibilities which relate to the order being prepared. So, if redelegations are generally made to employees at the GS-07 level, and that is appropriate, then the Commissioner Delegation Order should make the delegation to the GS-07 level directly.” xxx. The online Internal Revenue Manual (IRM) in section 1.2.44.6 contains Delegation Order 191 (Rev. 3). xxx. Delegation Order 191 (Rev. 3) states IRS personal to whom authority is Delegated to in paragraphs 3, 6, 9, 12, 15, 18, 21, 24, 27, 30, 33, and 36. xxx. For example: Delegation Order 191 (Rev. 3) in paragraph 3 states, “Delegated to: SB/SE Compliance Area Directors, W & I Compliance Center Directors and W & I Area Directors; SB/SE and W & I Compliance Managers responsible for collection matters; GS-12 and above Insolvency employees, GS-11 and above Technical Support Advisor Reviewers; GS-09 and above Revenue Officers; GS-09 and above Dyed Fuel Compliance Officers; GS-09 and above Tax Resolution Representatives and Field Assistance Group Managers; GS-09 and above Customer Service Representatives (in Accounts Management and Compliance Services sites processing correspondence and notice account calls), and GS-592/962-08 and above Compliance/Collection personnel.” xxx. The title to Delegation Order 191 (Rev. 3) in paragraph 1 states, “Levy on Property in the Hands of a Third Party (not to include Levy Form 668-B)” xxx. This Delegation Order (191 (Rev. 3)) specifically EXCLUDES “Levy Form 668-B”. Quote: “not to include Levy Form 668-B”. xxx. Form 668-B is a “Levy” form. xxx. A “Levy” Form 668-B is NOT an “Intent to Levy” Form 668-A(c). xxx. Delegation Order 191 (Rev. 3) delegates different authority in paragraphs 2, 5, 8, 11, 14, 17, 20, 23, 26, 29, 32, and 35. Take note of what authority is actually delegated by Delegation Order 191 (Rev. 3). Note that in ALL cases, Delegation Order 191 (Rev. 3) only allows NOTICE of Levy xxx. Delegation Order 191 (Rev. 3) in paragraph 2 states, “Authority: To issue notices of levy on property in the hands of a third party, except as further qualified below.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 5 states, “Authority: To issue follow up notices of levy if previous levies (on a different source) are evident. See paragraph 10, below, for repeated levy on the same source.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 8 states, “Authority: To issue notices of levy on: A. retirement income; B. benefit income (unless specifically listed elsewhere in this Delegation Order); C. Social Security income.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 11 states, “Authority: To issue repeated notices of levy on the same source. See paragraph 4, above, for follow up notices of levy, if previous levies (on a different source) are evident.” xxx. Note: This is a typo and should state “See paragraph 5, above…” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 14 states, “Authority: To issue notices of levy on: A. both spouses' incomes; B. cash loan value of life insurance.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 17 states, “Authority: To issue notices of levy: A. when collection is in jeopardy (with or without a jeopardy/termination assessment) after all pre-levy notices have been issued and the waiting periods for them have passed. For example, even after all pre-levy notices, jeopardy may be required for a levy because –1) it is the appearance date of a summons; 2) there is a pending or active installment agreement; 3) a rejected installment agreement can be appealed or is being appealed; 4) an offer in compromise is pending or payments are being made on a deferred offer; 5) a rejected offer in compromise can be appealed or is being appealed.; B. on Relocation Act payments; C. on Medicare payments; D. on Foster Care payments; E. on cash deposited as security for bail; F. when the last warning of enforcement is over 180 days old, but collection is at risk ; G. when an offer of an installment agreement or an offer in compromise is made merely to delay collection ; H. during the fifteen tolerance days following the end of the 30-day period for the notice of intent to levy and notice of a right to a hearing, if collection is in jeopardy.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 20 states, “Authority: To issue notices of levy: A. when collection is in jeopardy (with or without a jeopardy/termination assessment) and the pre-levy notices have not been issued and/or the waiting periods after the notices have not passed; B. to collect taxes in refund litigation; C. in alter-ego, nominee, and transferee situations.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 23 states, “Authority: To issue notices of levy on: A. United Nations employees' salaries; B. restitution payments for Japanese American WWII internment; C. death benefits; D. funds held in pension and retirement plans (including IRAs) which the notice of levy withdraws as a lump sum.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds any joint bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 26 states, “Authority: To release notices of levy on property in the hands of a third party.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 29 states, “Authority: To issue final demand for payment to a third party who has not honored a notice of levy.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. Delegation Order 191 (Rev. 3) in paragraph 32 states, “Authority: To issue a notice to exhibit books and records.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. NOTE: In Schulz v. IRS, 04-0196 Docket No. 04-0196-cv UNITED STATES COURT OF APPEALS For the Second Circuit stated: “As the Supreme Court pointed out in United States v. Bisceglia, IRS summonses have no force or effect unless the Service seeks to enforce them through a §7604 proceeding. 420 U.S. 141, 146 (1975), partially superseded by 26 U.S.C. §7609, as stated in In re Does, 688 F.2d 144, 148 (2d Cir. 1982).” And: “In light of this, we view ourselves today as completing a task begun forty years ago and hold that, absent an effort to seek enforcement through a federal court, IRS summonses apply no force to taxpayers, and no consequence whatever can befall a taxpayer who refuses, ignores, or otherwise does not comply with an IRS summons until that summons is backed by a federal court order. In addition, we hold that if the IRS seeks enforcement of a summons through the courts, those subject to the proposed order must be given a reasonable opportunity to contest the government’s request.” xxx. In other words, ‘NO private property without a court order’. xxx. Delegation Order 191 (Rev. 3) in paragraph 35 states, “Authority: To make determinations to return levy payments and determine wrongful levy claims.” xxx. This Delegation Authority does NOT authorize "Notice of Levy" upon funds in any bank account. xxx. There is NO delegation of authority to remove or cause to be removed, funds from any bank account since the authority to levy bank accounts simply DOES NOT EXIST in Delegation Order 191 (Rev. 3). xxx. Even if Delegation Order 191 (Rev. 3) delegated authority to act against any joint bank account, Delegation Order 191 (Rev. 3) ONLY authorizes agents to send “NOTICE of Levy”. xxx. There is NO authority pursuant to Delegation Order 191 (Rev. 3) for any IRS employee to take ANY action to give "Notice of Levy" upon the funds in any bank account. xxx. There is NO authority pursuant to Delegation Order 191 (Rev. 3) for any IRS employee to “Levy” anything. xxx. On the reverse of Form 668-A(c) and on the reverse of Form 8519 is printed IRC section 6332(c) which states, “Special rule for banks -- Any bank (as defined in section 408(n)) shall surrender (subject to an attachment or execution under judicial process) any deposits (including interest thereon) in such bank only after 21 days after service of levy.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Prejudgment Remedies, Subchapter B - Prejudgment Remedies, section 3102 is labeled, “Attachment.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Prejudgment Remedies, in section 3102(a)(1) states: “Any property in the possession, custody, or control of the debtor and in which the debtor has a substantial nonexempt interest, except earnings, may be attached pursuant to a writ of attachment in an action or proceeding against a debtor on a claim for a debt and may be held as security to satisfy such judgment, and interest and costs, as the United States may recover on such claim.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Prejudgment Remedies, in section 3102(b) states: “Availability of Attachment. - If the requirements of section 3101 are satisfied, a court shall issue a writ authorizing the United States to attach property in which the debtor has a substantial nonexempt interest, as security for such judgment (and interest and costs) as the United States may recover on a claim for a debt - … (4) in an action to recover a fine, penalty, or tax.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Prejudgment Remedies, in section 3101(d) states: “Notice and Hearing. - (1) On filing an application by the United States as provided in this section, the counsel for the United States shall prepare, and the clerk shall issue, a notice for service on the debtor against whom the prejudgment remedy is sought and on any other person whom the United States reasonably believes, after exercising due diligence, has possession, custody, or control of property affected by such remedy. Three copies of the notice shall be served on each such person. The form and content of such notice shall be approved jointly by a majority of the chief judges of the Federal districts in the State in which the court is located and shall be in substantially the following form:…” xxx. The Form of the Notice required under 28 USC 3101(d) contains this excerpted statement: “NOTICE You are hereby notified that this (property) is being taken by the United States Government ('the Government'), which says that (name of debtor) owes it a debt of $ (amount) for (reason for debt) and has filed a lawsuit to collect this debt.” … “If you want a hearing, you must promptly notify the court.” … “At the hearing you may explain to the judge why you think you do not owe the money to the Government, why you disagree with the reason the Government says it must take your property at this time, or why you believe the property the Government has taken is exempt or belongs to someone else. You may make any or all of these explanations as you see fit.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, in section 3102(c) states: “Issuance of Writ; Contents. - (3) The writ of attachment shall contain - (A) the date of the issuance of the writ; (B) the identity of the court, the docket number of the action, and the identity of the cause of action; (C) the name and last known address of the debtor; (D) the amount to be secured by the attachment; and (E) a reasonable description of the property to be attached.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Prejudgment Remedies, in section 3102(d) states: “Levy of Attachment. - (1) The United States marshal receiving the writ shall proceed without delay to levy upon the property specified for attachment if found within the district. The marshal may not sell property unless ordered by the court.” xxx. In other words, NO writ of attachment without a court order; NO private property without a court order. xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Postjudgment Remedies, section 3203 is labeled, “Execution” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Postjudgment Remedies, in section 3203(a) states: “Property Subject to Execution. - All property in which the judgment debtor has a substantial nonexempt interest shall be subject to levy pursuant to a writ of execution.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Postjudgment Remedies, in section 3203(b) states: “Creation of Execution Lien. - A lien shall be created in favor of the United States on all property levied on under a writ of execution and shall date from the time of the levy.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Postjudgment Remedies, in section 3203(c) states: “Writ of Execution. - (1) Issuance. - On written application of counsel for the United States, the court may issue a writ of execution.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Postjudgment Remedies, in section 3203(c) states: “(2) Form of writ. - (A) General contents. - A writ of execution shall specify the date that the judgment is entered, the court in which it is entered, the amount of the judgment if for money, the amount of the costs, the amount of interest due, the sum due as of the date the writ is issued, the rate of postjudgment interest, the name of the judgment debtor, and the judgment debtor's last known address.” xxx. TITLE 28 - Judiciary and Judicial Procedure, Chapter 176 - Federal Debt Collection Procedure, Subchapter B - Postjudgment Remedies, in section 3203(d) states: “Levy of Execution. - (1) In general. - Levy on property pursuant to a writ of execution issued under this section shall be made in the same manner as levy on property is made pursuant to a writ of attachment issued under section 3102(d).” xxx. In other words, NO writ of execution without a court order; NO private property without a court order. xxx. Whether it is an “attachment” or “execution” that creates a legal responsibility for a bank to surrender deposits to the IRS, it is JUDICIAL PROCESS which gives the OWNER of the deposit their “day in court” prior to such judgements. As stated in IRC section 6332(c) “Any bank (as defined in section 408(n)) shall surrender (subject to an attachment or execution under judicial process) any deposits…” means JUST THAT - UNDER JUDICIAL PROCESS. xxx. Without judicial process, there was never any levy, only common theft by fraud. attachment n. the seizing of money or property prior to getting a judgment in court, in contemplation that the plaintiff will win at trial (usually in simple cases of money owed) and will require the money or property to cover (satisfy) the judgment. The Supreme Court has ruled that an attachment may be made only after a hearing before a judge in which both sides can argue the danger that the party being sued (defendant) is likely to leave the area or otherwise avoid probable payment. A temporary attachment may be allowed by court order without both parties being present based on a declaration of the party wanting the attachment that there is clear proof that the defendant is going to flee. The court must also require a bond to cover damages to the defendant if the attachment proves not to have been necessary. Before the hearing requirement, pre-judgment attachments were common in which automobiles and bank accounts were held by the sheriff merely upon the person seeking the attachment posting a bond and the plaintiff getting a writ of attachment. Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved. writ of attachment n. a court order directing a sheriff (or other law enforcement officer) to seize property of a defendant which would satisfy a judgment against that defendant. Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill. All Right reserved. xxx. Table I in the online Title 26 IRC shows the following cross-references between the 1939 Code and the current 1954/1986 Code. 1939 Code 1986 Code 3692 6331(a), (b), 6334(c) 3710(a), (b) 6332(a), (b) 3710(c) 6332(c), 7343 xxx. The Circuit Court of Appeals, Sixth Circuit in O’Dell v. United States 160 F.2d 304, in the footnotes stated: Section 3710, I. R. C. "(A) * * * Any person in possession of property, or rights to property, subject to distraint, upon which a levy has been made, shall, upon demand by the collector or deputy collector making such levy, surrender such property or rights to such collector or deputy, unless such property or right is, at the time of such demand, subject to an attachment or execution under any judicial process. xxx. Section 3710 above is a statute in the codification of the Internal Revenue Code of 1939. xxx. The Circuit Court of Appeals, Sixth Circuit in O’Dell v. United States 160 F.2d 304 stated: Section 3710 requires the surrender of property or rights to property (1) subject to distraint; (2) upon which a levy has been made; (3) unless such property is subject to an attachment or execution under judicial process. This section is new, having been enacted in 1926, Act of Feb. 26, 1926, section 1114(e) and (f), 44 Stat. 117; but the provision authorizing the Collector after failure or refusal of the taxpayer to pay taxes due, to levy upon his property or property rights (section 3692) dates from 1866. As pointed out in United States v. Metropolitan Life Ins. Co., 2 Cir., 130 F.2d 149, 151, the procedure for distraint authorized under section 28 of the Revenue act of 1864, 13 Stat. page 233, was in substance like that of Section 3692 except that nothing was said about a levy. … The stipulation covering levy is as follows: "That one Giles Kavanagh, the duly appointed, qualified and acting Collector of Internal Revenue for the District of Michigan, on September 8, 1941, as said Collector, gave written notice to the defendant LeRoy E. O'Dell that the tax assessment ... totalling $1,336.84, including interest thereon, were unpaid and due and further notified the defendant that all property, rights to property, moneys, credits and/or bank deposits then in his possession or under his control and belonging to said Howie Company, and all sums of money owing from the defendant to said Howie Company, were seized and levied upon for the payment of said taxes, together with the penalties and interest, and demand was made upon the defendant for the sum of $1,336.84, or such lesser sum as he was indebted to said Howie Company, to be applied in payment of said tax liabilities." Nothing alleged to have been done amounts to a levy, which requires that the property be brought into legal custody through seizure, actual or constructive, levy being "an absolute appropriation in law of the property levied upon." Rio Grande R. Co. v. Gomila 132 U.S. 478, 10 S.Ct. 155, 33 L.Ed. 400; In re Weinger, Bergman & Co., D. C., 129 F. 875, 877; Smith v. Packard, 7 Cir., 98 F. 793. Levy is not effected by mere notice. Hollister v. Goodale, 8 Conn. 332, 31 Am. Dec. 674; Meyer v. Missouri Glass Co., 65 Ark. 286, 45 S.W. 1062, 67 Am.St.Rep. 927; Jones v. Howard, 99 Ga. 451, 27 S.E. 765, 59 Am.St.Rep 231. … Section 3692 does not prescribe any procedure for accomplishing a levy upon a bank account. The method followed in the cases is that of issuing warrants of distraint, making the bank a party, and serving with the notice of levy copy of the warrants of distraint and notice of lien. Cf. Commonwealth Bank v. United States, 6 Cir., 115 F.2d 327; United States v. Bank of United States, D. C., 5 F.Supp. 942, 944. No warrants of distraint were issued here. … No such procedure was followed in this case. Moreover, it does not appear that notice and demand were served upon the person liable to pay the taxes, namely, the Howie Company, in accordance with section 3670 and 3690. This being the case, query, whether the property or rights to property were within the meaning of section 3710 "subject to distraint," for under section 3690 the right to collect taxes by distraint and sale arises only after notice and demand. xxx. The West Key number system cites the following two sentences resulting from United States v. O’Dell, No. 10188, Internal revenue key 1781. “A “levy” requires that the property be brought into legal custody through seizure, actual or constructive, levy being an absolute appropriation in law of the property levied on and mere notice is insufficient.” “The method for accomplishing a levy on a bank account is the issuing of warrants of distraint, the making of the bank a party, and serving with notice of levy, copy of the warrants of distraint and notice of lien.” xxx. Currently, the only instances of the word “distraint” found in the Unites States Codes are the 10 sections of Title 26 (the IRC), 1 instance in Title 50 barring and deferring distraint actions against soldiers and sailors, and a single instance in the notes under Rule 69 in the appendix of Title 28 - Judiciary and Judicial Procedure which follows. xxx. TITLE 28 - Judiciary AND Judicial Procedure - Appendix, Federal Rules of Civil Procedure, Provisional and Final Remedies in Rule 69. labeled Execution states: “In General. Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, in proceedings supplementary to and in aid of a judgment, and in proceedings on and in aid of execution shall be in accordance with the practice and procedure of the state in which the district court is held, existing at the time the remedy is sought, except that any statute of the United States governs to the extent that it is applicable.” xxx. Without a writ of attachment or execution under judicial process by such or any other name, attached to the “Notice of Levy”, such “Notice of Levy” is without authority. Without a “Notice of Lien” attached to the “Notice of Levy”, such “Notice of Levy” is without authority. Such “Notice of Levy” without attached writs notifies a non existent levy. It notifies a nullity. It is VOID AB INITIO and applies NO legal force. |