United States: New Due Process Rights In IRS Collection Proceedings

1-1.10 RRA Section 3401,

• Due Process in IRS Collection Actions
• Effective date is after January 18, 1999
• Creates new IRC sections 6320 and 6330
• Requires new notice to taxpayers (CDP Notice)

Provides the taxpayer with new procedural rights when the Service files a Notice of Federal Tax Lien (NFTL) and when it intends to levy upon the taxpayer's property or right to property

1-1.20 The purpose of section 6320 is to provide a taxpayer with notification that a Notice of Federal Tax Lien has been filed and to provide the taxpayer with the opportunity to request a Collection Due Process hearing ("CDP hearing") with the IRS Office of Appeals ("Appeals") with respect to the tax liability for the taxable period or periods to which the lien relates. New section 6330 similarly requires the IRS to give, in non-jeopardy situations, the taxpayer whose property or rights to property, other than a State tax refund, are to be levied, the right to a CDP hearing with Appeals at least 30 days prior to levy, with respect to the tax liability for the taxable period or periods for which the levy is intended to be made. For levies on State tax refunds, the right to a CDP hearing will be given within a reasonable time after money is received from the State.

1-1.30 If the taxpayer timely requests a CDP hearing, Appeals will consider the case and render a written determination concerning the appropriateness of the lien filing or proposed levy. If the taxpayer does not agree with Appeals' determination, the taxpayer has the opportunity to seek judicial review. Through this section, the taxpayer may have the opportunity to challenge administratively and in court the taxpayer's liability for the tax years stated on the NFTL or levy, raise any additional defenses with respect to that liability, challenge the appropriateness of the filing of the NFTL or proposed levy, and offer collection alternatives. Because the taxpayer will only have one opportunity for a CDP hearing and subsequent judicial review, the taxpayer is required to raise all relevant substantive and collection issues at that hearing.

1-7.10 Applicable to any Notices of Federal Tax Lien filed after January 18, 1999. A taxpayer is entitled to notice of the filing of an NFTL not more than five business days after the date of any filing This notice describes the taxpayer's right to request a Collection Due Process hearing with respect to any taxable periods described on the NFTL, within the 30-calendar day period beginning on the day after the 5-day period for notification has expired. The taxpayer is entitled to only one CDP hearing with respect to each taxable period to which the unpaid tax relates. The determination made by Appeals may be appealed to either the United States Tax Court ("Tax Court") or a United States District Court ("district court"). The rules for determining to which court an appeal from the CDP hearing will be directed will be more specifically addressed below. The running of the periods of limitations for collection after assessment, for criminal prosecutions, and for suits described under IRC § 6532 are suspended for the periods in which the CDP hearing and any appeals are pending. (Suspensions will be more specifically addressed below).

If a taxpayer does not request a CDP hearing within the 30-day period, a taxpayer can still request a hearing at a later date and the IRS will provide a hearing equivalent to a CDP hearing. However, the taxpayer will not be entitled to judicial review of that later hearing. ("Equivalent hearings" are more specifically addressed below). Notification is not required for any refilling of NFTLs. However, a taxpayer may still seek administrative review of a refiling with IRS Collection, Appeals, or the National Taxpayer Advocate. Notification is not required to be given to any known nominees of the taxpayer. However, any person named on a filed NFTL other than the taxpayer may seek administrative review with IRS Collection, Appeals, or the National Taxpayer Advocate.

Written notification that an NFTL has been filed must be given to the taxpayer in person, or left at the taxpayer's dwelling or usual place of business, or sent by certified or registered mail to the taxpayer's last known address, not more than five days after the date of filing of the NFTL. This notification will include the amount of unpaid tax, state the taxpayer's right to request a CDP hearing within the 30-day period, the administrative appeals available to the taxpayer with respect to such lien, and Code provisions and procedures pertaining to release of liens on property. Properly given or mailed notice is deemed to be received by the taxpayer. Actual receipt by the taxpayer is not a prerequisite to the taxpayer's right to a CDP hearing.

A taxpayer to whom IRS has properly delivered or mailed notice of the CDP hearing is entitled to a CDP hearing if requested within the 30-calendar day period following the five business day period within which the IRS is required to give that notice. If the IRS determines that it did not properly deliver notice of the CDP hearing, a substitute notice will be sent. The taxpayer will be entitled to request a CDP hearing within 30-calendar days of the date of the substitute notice. The validity of the NFTL is not impacted by the IRS's failure to provide section 6320 notice. A taxpayer's request for a CDP hearing must be in writing. No specific format is required for the written request. However, a Form 12153 has been developed for this purpose. The request must set forth the taxpayer's name, address, daytime phone number, type of tax, taxable period, taxpayer's TIN, a statement that the taxpayer requests a CDP hearing concerning the NFTL and the reasons the taxpayer disagrees with the NFTL filing. The request must be signed and dated by the taxpayer or the taxpayer's representative. The location for sending the request for a CDP hearing is the office of the IRS that issued the CDP notice. The IRS hopes that many cases can be settled informally by the office filing the lien or Appeals prior to the need for a CDP hearing. However, the taxpayer will still be required to request a hearing within the 30-day period to preserve his or her right to the Appeal and subsequent judicial review.

The taxpayer is entitled to one CDP hearing with respect to each unpaid taxable period shown on an NFTL filed after January 18, 1999. To the extent possible, all CDP hearings under section 6320 and 6330 (which will be further addressed below) will be combined. The CDP hearing must be before an employee or officer of Appeals who has had no prior involvement with respect to the taxable period or periods involved in the CDP hearing, unless the taxpayer waives this requirement (in writing).

Appeals Division has the authority to determine the validity, sufficiency, and timeliness of any CDP hearing notice or request for a hearing by the taxpayer. At the CDP hearing, the hearing officer is required to obtain verification from IRS Collection that the requirements of any applicable law or procedure have been met. At the CDP hearing, the taxpayer is entitled to raise any relevant issue relating to the unpaid tax, including any appropriate spousal defenses, challenges to the appropriateness of the NFTL filing, offers of collection alternatives, and merits of liability, if appropriate.

The taxpayer is not entitled to raise an issue that was raised and considered at any previous CDP hearing or other previous administrative or judicial proceeding, if the taxpayer participated meaningfully in such hearing or proceeding.

The taxpayer may raise challenges to the existence or amount of the underlying tax liability for any period listed on the NFTL if and only if the taxpayer did not receive a statutory notice of deficiency for that tax liability or did not otherwise have an opportunity to dispute that tax liability.

1. If the underlying liability is subject to the deficiency procedures (for example, an income tax deficiency), then the taxpayer will be entitled to challenge the merits of that deficiency in the CDP hearing only if the taxpayer did not receive the notice of deficiency. A common situation is one where the taxpayer defaulted on the statutory notice and now wants to challenge the merits of the deficiency in a CDP hearing. The taxpayer's ability to do so will depend on whether he or she received the statutory notice.
2. If the underlying liability is not subject to the deficiency procedures (for example, trust fund recovery penalty), then the taxpayer will be entitled to challenge the merits of the liability only if the taxpayer can show that he or she did not otherwise have an opportunity to dispute the liability. A taxpayer who was previously offered, and chose to decline, a conference with Appeals concerning the underlying liability will not be entitled to challenge the merits of the liability at the CDP hearing.

The taxpayer must raise all relevant issues in the CDP hearing. The rule of variance that applies in refund litigation will apply here.

The taxpayer may appeal the determination made in the CDP hearing within 30 calendar days to the Tax Court or a District Court, as appropriate. The 30-day period runs from the date of the Appeals determination and is not extended because the taxpayer is out of the country. The Tax Court is the proper forum for judicial review of a CDP hearing determination if the underlying tax liability is the type of liability over which the Tax Court would otherwise have jurisdiction (for example, income, gift, and estate taxes). This is true even if the only issues raised by the taxpayer are collection related. District Court is the proper forum for judicial review of a CDP hearing determination if the underlying tax liability is not the type of liability for which the Tax Court would otherwise have jurisdiction (for example, trust fund recovery penalty, certain excise taxes). If the taxpayer files a timely appeal, but to the incorrect court, the taxpayer will have 30 calendar days within which to file an appeal with the correct court. The taxpayer is precluded from raising "new issues" upon judicial review. In other words, the taxpayer cannot raise any issues for the first time upon judicial review, but is required to raise all relevant issues in the CDP hearing. The courts will review Appeals' determination concerning the validity of the tax liability on a de novo basis. (This includes determinations concerning spousal defenses.) Appeals' determination concerning any other matters will be reviewed using an abuse of discretion standard of review. The Tax Court has issued interim rules to implement the due process provisions. These are number 330 through 334.

Any levy actions with respect to the applicable tax period are suspended during the pendency of a section 6320 CDP hearing. Note, however, that all collection action is not suspended-i.e., this is not like the automatic stay. The periods of limitation for collection after assessment, criminal prosecutions, and suits under IRC § 6532 are suspended while the CDP hearing and appeals therefrom are pending. In no event shall any of those periods of limitation expire before the 90th day after the day on which there is a final determination in such hearing. The suspension period runs from the time that a hearing is requested until the determination or court proceeding is final.

The Appeals office that makes the determination at a CDP hearing retains jurisdiction over that determination, including any subsequent hearings and collection actions taken with respect to that determination. Where a taxpayer has exhausted all administrative remedies and alleges a change in circumstances which affects the original determination, Appeals may consider issues previously raised and considered in any prior administrative or judicial proceeding, whether or not the taxpayer participated meaningfully in the prior proceeding. These subsequent hearings are not subject to judicial review and do not suspend the periods of limitations.

Taxpayers who fail to timely request a CDP hearing may later request an "equivalent hearing" with Appeals concerning the NFTL and tax liabilities for the tax periods shown on that NFTL. The equivalent hearing will be substantially similar to the CDP hearing, but will not be subject to judicial review. The taxpayer is not entitled to the same suspensions for limitation periods in the equivalent hearing, but collection action may be suspended as a matter of policy during the pendency of an equivalent hearing.

The focus of this section will be on the distinctions of the section 6330 CDP hearing from the section 6320 CDP hearing just discussed. Many of the issues discussed above are equally applicable under section 6330-i.e., the issues which can be raised at a CDP hearing, contents of notice, opportunities for judicial review, retained jurisdiction of Appeals, "equivalent hearings," etc. Operational/conceptual distinctions between 6320 and 6330: IRC 6320's key date is the date the NFTL is filed. 6330's key date is the date of the CDP hearing notice (FINAL NOTICE) or if SITLP or Jeopardy situations, the date of levy.

Notice is given of a right to a CDP hearing at least 30 days prior to levy on property or rights to property, other than a State tax refund, in non-jeopardy situations. CDP hearing is with respect to the tax liability for the taxable period or periods for which the levy is intended to be made. In jeopardy situations, and in cases where a levy is made on a State tax refund, notification to the taxpayer of a right to a hearing is not required to be given until after the levy action has occurred. The section 6330 notice of the right to a CDP hearing can be combined with the Notice of Intent to Levy in IRC section 6331 (d), or issued separately. This will be addressed further below. The section 6330 notice should set forth the amount of unpaid tax, the right to a hearing, and a statement that the IRS intends to levy and the taxpayer's rights with respect to the levy action. The statement should also set forth the Code provisions and procedures pertaining to levy and sale, the administrative appeal procedures with respect to levy and sale, alternatives available to the taxpayer that could prevent levy, and the Code provisions and procedures pertaining to redemption and release of liens. Notice is to be given in the same manner as a section 6320 notice EXCEPT that it must be sent return receipt requested if sent by certified or registered mail.

As with the section 6320 notice, a person whose property or rights to property may be levied upon must be given notice of his or her rights to a CDP hearing. These requirements do NOT apply in the case of jeopardy levies and levies on State tax refunds. This notice must be given not less than 30 days prior to the date of the first levy with respect to the unpaid tax liability for the taxable period for which the levy may be made. Section 6330 notice need only be given to the liable taxpayer. The IRS is not required to give section 6330 notice to nominees. The taxpayer must request the section 6330 hearing within the 30-day period from the date of the CDP hearing notice, or will lose the right to a CDP hearing, court review, and retained jurisdiction of Appeals. The taxpayer will get equivalent hearing if a hearing is requested after the 30 day period.

Notice is generally given in the same manner as for section 6320 notice, EXCEPT that where notice is sent by certified or registered mail, it must be sent return receipt requested. Notice must be given not less than 30 days before the IRS intends to levy on taxpayer's property or rights to property (except for State tax refunds and jeopardy levies) If the taxpayer did not receive the notice because the IRS did not mail the notice to the taxpayer',s last known address or deliver that notice to the taxpayer, and, therefore, did not timely request a section 6330 hearing, the IRS will cease collection activity with respect to the tax liability for the taxable period shown on the notice.

As with a section 6320 hearing, attempts may be made for informal resolution prior to a section 6330 hearing. However, the taxpayer must still request a section 6330 hearing within the 30-day period to preserve his or her right to the hearing if the matter cannot be resolved informally.

Levy actions are suspended during the pendency of a section 6330 hearing if they are "levy actions which are the subject of the requested hearing." Same suspensions apply as previously addressed with respect to the section 6320 hearing.

As discussed above, the section 6330 procedures do not entitle the taxpayer to a section 6330 hearing prior to a jeopardy levy or a levy upon a State tax refund. Jeopardy levies-The taxpayer will be entitled to a post-levy section 6330 notice and will be entitled to a post-levy section 6330 hearing and court review. State tax refund levies-The taxpayer will receive pre-levy section 6331(d) notice (URGENT NOTICE), post-levy section 6330 notice, and will be entitled to a post-levy section 6330 hearing and court review. In other cases, as previously discussed, a combined section 6331 (d)/6330 notice will be sent, entitling the taxpayer to a pre-levy section 6330 hearing. {FINAL NOTICE}

1-4.10 The Act substantially increases the exemptions from levy available to taxpayers under §6334 of the Internal Revenue Code. The Exemption for personal effects rises from $2500 to $6,250 and books and tools of trade goes from $1350 to $3125. The increases will have the practical effect of preventing seizure of books and tools in trade and personal effects from many lower income taxpayers. The prior exemptions were diminished and allowed an opportunity for the IRS to take cars and other personal belongings from individuals with limited means. New exemptions will allow taxpayers to at least retain modest vehicles, personal items, books and tools of trade with reasonable value. [Act §3431] [IRC §6334(a)]

1-5.10 The Act prohibits the IRS from seizing any real property used as a residence by the taxpayer or any nonrental real property of the taxpayer used by any other individual as a residence to satisfy an unpaid liability of $5,000 or less, including penalties and interest. The Act requires the IRS to exhaust all other payment options before seizing the taxpayer's business assets or principal residence. For this purpose, future income that may be derived by a taxpayer from the commercial sale of fish or wildlife under a specified State permit must be considered in evaluating other payment options before seizing the taxpayer's business assets. A levy is permitted on a principal residence only if a judge or magistrate of a United States district court approves (in writing) of the levy. The provision is effective on the date of enactment. [§3445] [IRC §6334(a)(13)]

1-5.20 No seizure of a dwelling that is the principal residence of the taxpayer or the taxpayer's spouse, former spouse, or minor child would be allowed without prior judicial approval. Notice of the judicial hearing must be provided to the taxpayer and relevant family member. At the judicial hearing, the Secretary would be required to demonstrate (1) that the requirements of any applicable law or administrative procedure relevant to the levy have been met, (2) that the liability is owed, and (3) that no reasonable alternative for the collection of the taxpayer's debt exists. The provision is effective for collection actions initiated more than 180 days after the date of enactment. [§3445(b)] [IRC §6334(e)]

1-5.30 This provision imposes substantial constraints upon the seizure of residences and business assets. The Internal Revenue Service is specifically prohibited from seizing the taxpayer's residence when there is a tax liability of less than $5,000. The provision also enhances taxpayer protections for seizure of personal residences and business assets. Under prior law the Internal Revenue Service could seize a personal residence from the taxpayer with approval of the District Director or Assistant Director. The requirement for approval by the District Director or Assistant Director was enacted with the Taxpayer Act of Rights of 1988. §3455 provides additional protections from seizure of personal residences by providing the Internal Revenue Service may only take a personal residence with approval of a judge or magistrate. The provision also provides for protection of tangible personal property or real property used in trade or sale of business from levy by the Internal Revenue Service. The District Director or Assistant Director must approve prior to seizing tangible business related assets. The IRS must exhaust all other payment options before seizing the taxpayer's business assets or principle residence. The provisions should substantially reduce the number of Internal Revenue seizures of residences and business assets. [§3445(b)] [IRC §6374(e)]

1-5.40 The protections provided by §3445 should also be viewed in context of the new protections regarding levy provided in §6330. The taxpayer now has the right to seek judicial review prior to any type of levy action by the Internal Revenue Service. But if we assume the taxpayer neglected to protest pursuant to §6330 when first given notice, the Internal Revenue Service would then be allowed to seek authority to seize the personal residence or District Director approval to seize business assets of a taxpayer. The practitioner must be alert to take all steps to protect the taxpayer's rights pursuant to §6320 and §6330 at the first instance to avoid the potential that the IRS might later seek to exercise its authorities under §3445.

1-6.10 The taxpayer has the right to apply for assistance from the Taxpayer Advocate if he or she is suffering or is about to suffer significant hardship. Taxpayers have the statutory right to appeal unreasonable decisions by collection officers. If your request for an agreement is unreasonably denied, you may request a Taxpayer Assistance Order (TAO) which may require collection personnel to release property levied upon or to cease any actions or refrain from any action with respect to the taxpayer. [IRC § 7811(b)] A request is initiated by filing form 911 with the Taxpayer Advocate. The mere existence of these rights tends to mitigate the unreasonableness of some collection personnel. Do not continually threaten to appeal a TAO, but beware of your rights. You must establish that the collection actions will cause your client significant hardship to receive a Taxpayer Assistance Order.

1-6.20 The Internal Revenue Service Restructuring and Reform Act of 1998 expanded the definition of "significant hardship" by including the following circumstances:

1. The existence of an immediate threat of adverse action;
2. A delay of more than thirty (30) days in resolving the taxpayers account problems;
3. The payment by the taxpayer of significant cost (including fees for professional services) if relief is not granted; or
4. Irreparable injury or a long standing adverse impact, if relief is not granted. [Act§1102; IRC§7811]

1-6.30 The list is not intended to be exclusive. A TAO may also be issued in any case which the taxpayer meets other requirements that will be spelled out in regulations. [IRC § 7811 (a)(1 )(B)] The ranks are to be based in consideration of equity. If the Internal Revenue Service has failed to follow published guidance, including the Internal Revenue Manual, the Taxpayer Advocate is required to construe the facts taken into account in a manner most favorable to the taxpayer. [Conf Rept 1 05-599(Pub L 105-206) p216]

1-6.35 TBR2 expanded the authority of the Taxpayer Advocate to issue taxpayer assistance orders. The Taxpayer Advocate may now "order the IRS to take any action as permitted by law" as opposed to simply ordering an IRS employee "to cease any action."A taxpayer assistance order may no longer be revoked by a District Director. That authority now rests solely with the Commissioner of Internal Revenue Service or the Deputy Commissioner and only if a written explanation listing the reasons for modification is provided to the Taxpayer Advocate (Problem Resolution Officer). [IRC § 7802(d)(2)]

1-6.40 The submission of a Form 911 extends the statute of limitations for the duration of the time the matter is under consideration. The statute begins to run again on the date the Problem Resolution Officer makes a determination on the application. [IRC § 7811(c)]

1-7.10 The Internal Revenue Service Restructuring and Reform Act of 1998 permits up to $100,000 in civil damages caused by an officer or employee of the IRS who negligently disregards provisions of the Code or Treasury Regulations in connection with the collection of Federal tax with respect to the taxpayer. The damages are $1,000,000 if the disregard was wilful or reckless. Each award is further enhanced by the costs of the action. The taxpayer must exhaust administrative remedies. The Act also permits up to $1 million in civil damages caused by an officer or employee of the IRS who wilfully violates provisions of the Bankruptcy Code relating to automatic stays or discharges. These provisions are effective for actions of officers or employees of the IRS occurring after July 22,1998. [Act § 3102; IRC § 7433]

1-7.20 The Act applies the Fair Debt Collection Practices Act to the IRS relating to communication with taxpayer/debtors and the prohibitions on harassing or abusing a debtor. The restrictions relating to communication with the taxpayer/debtor are not intended to hinder the ability of the IRS to respond to taxpayer inquiries (such as answering telephone calls from taxpayers). The Collection Division has been made subject to some of the protections provided to individuals from private collectors. The Internal Revenue Service is not allowed to contact the taxpayers at an unusual time or place which is known to be inconvenient to the taxpayer. The Internal Revenue Service specially is directed to deal with the taxpayer's authorized representative and not to deal with the taxpayer unless that representative fails to respond within a reasonable period of time. This provision provides additional protections for a taxpayer by clearly delineating the right to be represented before the Internal Revenue Service by a CPA, EA or Attorney. The Internal Revenue Service is also prohibited from harassing or abusing the taxpayer and, in some instances, from calling the taxpayer on the job. If the Internal Revenue Service violates these provisions, the taxpayer is authorized to pursue remedies pursuant to Section 7433 of the Internal Revenue Code regarding negligent, reckless or intentional disregard of the Internal Revenue Code by IRS collection employees. Most employees of the Internal Revenue Service act in a professional manner but these additional protections will allow taxpayers specific rights to seek judicial damages as a result of improper conduct. In the past, the taxpayer had few remedies for abusive IRS conduct by incompetent or arrogant IRS employee's. Now the taxpayer has specific statutory rights. Bad IRS employees must change their collection approach to avoid judicial sanctions. [Act § 3466; IRC § 6304]