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Serving Levies,
Releasing Levies and Returning Property

5.11.2 Serving Levies,
Releasing Levies and
Returning Property
5.11.2.1
(05-05-1998)
Serving Notices of Levy
- This section provides
procedures for serving notices of levy.
5.11.2.1.1 (05-05-1998)
General
- Serve a levy only when
there is reason to believe the third party is holding
the taxpayer's property.
- If the taxpayer
owns property with a person not liable for the
tax, consider using another source.
- Any property in
which the taxpayer has an interest is subject to
levy, even if the property is jointly owned with
another person (e.g., community property,
jointly owned bank accounts.) However, because
wrongful levy suits and claims can result from
such levies, consider levying on another
available source.
- Consider the effect
that the notice of levy may have on innocent third
parties.
5.11.2.1.2 (07-26-2002)
Preparing the Notice of Levy
- Prepare the appropriate
notice of levy form.
- Use Form 668–W(C)DO
to levy an individual's wages, salary or other
income.
- Use Form 668–A(C)DO
to levy other property that a third party is
holding. For example, this is often used for
bank accounts and business receivables.
- Include all appropriate
TINs on the notice of levy. For example, include both
the SSN and EIN of a sole proprietor, if they are known.
Include both SSNs on a joint income tax liability.
- If additional
information will help identify the taxpayer's property,
include it on the levy. This may include:
- Contract Number
- Franchise
Number or Operator
- Co-signer's
Name
- Royalty Owner
- Location of the
branch where the taxpayer works
- Any other
descriptive information
- If there is a joint
assessment, and there is a restriction that prevents
levy against one of the taxpayers' property, include
both taxpayers' names on the notice of levy.
- State on the
notice of levy, "This levy attaches the property
and rights to property of (taxpayer's name). It
does not attach the property and rights to
property of (taxpayer's name). "
Example:
Fred and
Janice Blue filed a joint return and owe
$3,000. They are divorced now. Janice has
filed bankruptcy and the automatic stay
prohibits levy on her property. Fred is not
a party to the bankruptcy. His property can
be levied. When a notice of levy is prepared
to collect from Fred, the taxpayer name line
will still include both taxpayers' names.
However, the notice of levy will also state,
"This levy attaches the property and rights
to property of Fred Blue. It does not attach
the property and rights to property of
Janice Blue."
- In some states,
the taxpayer whose property rights are being
levied may have a community property interest in
the property of a spouse, and there may be a
restriction which prevents levy on that spouse's
property. See IRM 5.11.6.11,
Levy on Non-Liable
Spouse in a Community Property State..
In the example above, other language may need to
be added to the notice of levy explaining that
Fred Blue's property rights that are being
levied include Fred's community property
interest in Janice Blue's property, although her
property rights are not being levied. The result
is similar to what would be levied if there were
an assessment only against Fred, but his
community property interest in Janice's property
is being levied.
5.11.2.1.3 (05-05-1998)
Serving Notices of Levy in Person
- When a notice of levy
is served in person, have the person who receives the
notice of levy sign for it. Write, " Receipt
Acknowledged," on the form, and have the person sign
after this. If the person will not sign it, leave the
form anyway. Document the case file to show the levy was
served. An acknowledgment is desirable, but it is not
critical.
- If the levy source is a
partnership or a corporation, try to serve the levy on a
partner or corporate officer.
- Try to find out how
much to expect from the levy. Ask for payment when the
levy is served, unless there is a reason for a delay,
such as,
- IRC 6332(c)
requires banks to wait 21 days
- A levy on wages
is not paid until the taxpayer's usual pay day
- If payment must be sent
later, give the person a business reply, self-addressed
envelope. Give the person more envelopes if there will
be several payments.
- If the person owes
nothing to the taxpayer, have this written on the form.
Ask the person to sign it and write a title, e.g.,
partner, vice-president.
5.11.2.1.4 (05-05-1998)
Serving Notices of Levy by Mail or FAX
- Treasury Regulation
301.6331–1(c) requires notices of levy to be accepted by
mail.
- Print, "Notice
of Levy," on the envelope used to mail levies.
This helps large employers and banks route the
levy to the right office.
- Include a
business reply, self-addressed envelope.
- When a levy must be
served quickly, a FAX can be used. First, confirm the
person has a FAX machine and will accept the levy this
way.
5.11.2.1.5 (08-01-2004)
Addresses for Mailing Notices of Levy
- Some large companies
and government agencies identify one address for serving
all levies. The company or agency must notify the area
director. Consider keeping a central index in the area
for these addresses. Then, they can be distributed to
all collection employees in the area.
- Consider whether other
areas and campuses need to know the address. Some large
companies and government agencies may get levies from
all over the country. A Notice of Levy Address Directory
(Document 6408) lists these levy sources. Use the
address in the directory, if you are sending a levy to
one of these sources.
- If a company or
agency needs to be in the Directory, ask for its
Employer Identification Number (EIN).
- If a bank gives
an address for its levies, ask for its EIN and
its American Bankers Association (ABA) transit
number.
- Send the
requests, including the EIN and ABA number, to
the area office. If the area agrees the company
or agency belongs in the Directory, it will be
sent to Headquarters to the Director, Payment
Compliance, SE:S:C:CP:PC:FPC, Attn: Systemic
Levy Analyst. The area will also send all
requests from banks to this address, even though
these are generally not included in the
Directory.
- ACS also maintains a
file of levy source addresses on the Servicewide
Electronic Research Program (SERP). To find this file,
go to the IRS Homepage (irweb.irs.gov). Then, click on:
- SERP
- Who/Where
- ACS Levy
Sources
- A computer program uses
the EIN and ABA number to insert these addresses for
many levy sources. However, it is not always able to do
this. This depends, for example, on IDRS having the levy
source's EIN or ABA number. Some levy sources do not
have these numbers, so sources must still be checked
against the Directory.
5.11.2.1.6 (05-05-1998)
Levy in Other Territories
- When a taxpayer has
property in another territory, either,
- Mail the notice
of levy
- Go to the other
territory if it is nearby, or
- Initiate a
Courtesy Investigation, see IRM 5.1.8,
Courtesy Investigations.
- The receiving territory
may find other levy sources. If so, other levies may be
served after checking with the originating territory.
5.11.2.1.7 (07-26-2002)
Notifying the Taxpayer After Serving the Levy
- After serving a levy in
person or faxing it, mail a copy to the taxpayer. Form
668–A(C)DO includes two taxpayer copies. Mail Part 4 to
the taxpayer. Leave Part 2 with the person who receives
the levy. ACS uses Form 668–A(C) and mails Form 8519,
Taxpayer's Copy of Notice of Levy, to the taxpayer.
- If the levy is mailed,
do not send the taxpayer copy immediately. Wait long
enough so the taxpayer does not get the levy before the
levy source does.
Note:
This is not
necessary for a levy on wages, salary, or other
income. The statement of exemptions and filing
status notifies the taxpayer of the levy.
- Also, see IRM
5.11.6.11.2, Notice to the
Non-Liable Spouse,when a levy is served on a
non-liable spouse in a community property state.
5.11.2.1.8 (05-05-1998)
Examination of Books and Records
- Records about
taxpayers' property must be provided when a levy is
served or is about to be served. See IRC 6333. A summons
could be used, but it may be unnecessary. Sometimes, a
cooperative person will show the records if something in
writing is given.
- Use Form 2270, Notice
to Exhibit Books and Records. Do not describe this as a
summons. Note the date and time the form is served.
Also, note the person who receives it.
- IRC 7611(b) requires 30
days notice before examining records of churches, church
conventions, and church associations when
determining a
liability.
- However, if tax has
already been assessed and a levy is or is about to be
served, IRC 6333 allows records to be examined without
30 days notice.
5.11.2.1.9 (05-05-1998)
Refusing to Comply with a Levy
- If a person refuses to
surrender the property, discuss IRC 6332. This section
of the IRC
- Requires the
property to be surrendered,
- Discharges the
person from any liability to the taxpayer and
anyone else, and
- Describes the
person's liability if the levy is not honored.
- If the person still
refuses, serve Form 668–C, Final Demand.
- A Notice of Federal Tax
Lien is not required before serving Form 668-C. However,
if a suit to enforce the levy is likely, then file the
lien.
- Try to serve Form 668-C
on the same person who received the levy. Complete the
Certificate of Service on Part 1. Try to get a signature
at the bottom of the form to acknowledge it was
received.
5.11.2.2
(05-05-1998)
Releasing Levies
- The authority to release
levies is not intended to weaken the levy.
5.11.2.2.1 (08-01-2004)
Legal Basis for Releasing Levies
- IRC 6343 requires
levies to be released in the following circumstances.
- The liability
is no longer owed
- The statutory
collection period has run out
Note:
Generally, a
levy served prior to the expiration of the
collection period is good and should not be
released. In addition, a levy served after
reducing a tax liability to judgment is
valid after the collection statute expires.
Example:
One week
before the statutory collection period runs
out, a notice of levy is served at the
taxpayer's bank. The bank does not have to
send the levy proceeds until the 21 day
holding period on bank levies expires, and
this will be after the period for collection
runs out. This levy does not have to be
released when the collection period runs
out, because it was served timely.
Exception:
A continuous
wage levy served before the expiration of
the collection statute should be released
after the expiration of the collection
statute.
Example:
When a
notice of levy is served on a taxpayer's
right to property, sometimes that includes
the right to receive future payments. If
there is a fixed and determinable right to
receive those future payments, the levy will
attach them when they would have been paid
to the taxpayer, even though it is not
actually a "continuous" levy. As long as the
right to property has been levied before the
period for collection runs out, the notice
of levy does not have to be released.
- The release
will facilitate collection of the amount that is
owed.
- The levy is
creating an economic hardship
- The fair market
value of the levied property is much more than
the amount owed. A portion can be released
without risking collection.
- The taxpayer
makes an installment agreement, unless the
agreement allows for the levy
Example:
A notice of levy is
served on the taxpayer's broker. The broker is
holding a certain amount of the taxpayer's cash but
not enough to pay the tax liability. In addition,
the broker is holding the taxpayer's stock options.
The stock is worth more than when the option price
was set. The cash held by the broker is enough to
exercise the option on shares worth more than the
tax liability. We arrange to meet the taxpayer and
the broker. The release of levy is served, the
taxpayer gives the broker an order to use the cash
held by the broker to exercise the stock options and
to immediately sell the shares. A new notice of levy
is served on the broker, so the proceeds of selling
the shares will be attached and pay the tax
liability.
Example:
A notice of levy is
served on the taxpayer's bank. The amount in the
bank is less than the tax liability. The taxpayer
needs the Notice of Federal Tax Lien released and
wants to post a bond to do so. The bank has a bond
department, and the amount on deposit at the bank is
enough to pay for the bond to get the lien released.
A collateral agreement is submitted and approved. We
meet the taxpayer at the bank. The notice of levy is
released, and the taxpayer has the funds in the bank
immediately turned over to the bond department, so
the bond that assures payment of the amount owed can
be issued and the lien can be released.
- Release the notice of
levy as soon as one of the circumstances in (1) is
identified to prevent payments from being received after
the notice of levy should have been released. This will
avoid the need to return levied property and the
inconvenience this may cause for the taxpayer.
Example:
After a notice of
levy has been sent to a taxpayer's employer, the
taxpayer responds and shows that the notice of levy
prevents her from paying for basic necessities for
her family. Because the levy is causing an economic
hardship, release it immediately, so the employer
will not send a levy payment on the next pay day.
- Section 362(a) of the
Bankruptcy Code (Title 11) prohibits levy on the
property of a taxpayer in bankruptcy. A levy on this
property is generally illegal and must be released.
Contact Technical Services for advice if you
inadvertently levy on property of a taxpayer in
bankruptcy.
- Any notice of levy that
violates the Internal Revenue Code or regulations must
also be released.
5.11.2.2.2 (07-26-2002)
Releasing Wrongful and Erroneous Levies
- A wrongful levy is one
that attaches property to which the taxpayer has no
rights. IRC 6343 authorizes release of wrongful levies.
When a claim is received, contact Technical Services
about the taxpayer's rights to the levied property.
- See IRM 5.10.4.4,
Release of Wrongful Seizures for
Property Not Yet Sold,and IRM 5.10.6.15,
Wrongful Seizure - Payment of
Claims After Saleregarding wrongful levy
claims. Also, see IRM 5.1.15,
Account Transfers, Adjustments, Payment Tracers, Credit
Transfers and Refunds.
- If a notice of levy is
served erroneously, release it immediately. Send Pattern
Letter P–548 to the taxpayer. See Exhibit 5.11.2–1. The
taxpayer can give this to people who received levies.
See IRM 5.11.4.8, Reimbursing
Bank Charges Because of Erroneous Levy,about
reimbursing bank charges for erroneous levies.
Example:
A notice of levy is
served, although the amount owed has been paid. The
taxpayer shows a canceled check used to pay the tax.
When IDRS is researched, the check is found among
unidentified remittances. Release the levy. Any
related bank charges may be reimbursed.
5.11.2.2.3 (05-05-1998)
Serving Releases of Levy
- Generally, levy
releases are mailed to save resources. Sometimes,
though, they may be served in person.
- When a levy must be
released quickly, it can be faxed. Confirm that the
person has a FAX machine and is willing to accept the
release this way.
5.11.2.2.4 (05-05-1998)
Forms Used to Release Levies
- Use Form 668–D, Release
of Levy/Release of Property from Levy, to release a levy
served on Form 668–A or 668–W. Use Form 668–E, Release
of Levy, to release seized property when Form 2433,
Notice of Seizure, cannot be used.
- Form 668–D can be used
to release the levy in part or in full.
Example:
The taxpayer has
defaulted on an installment agreement, and his wages
are levied. The amount being levied creates a
hardship, but a smaller amount would not. A release
of wages less than
$X allows the taxpayer to receive an amount that
will not cause a hardship. Anything earned more than
that amount is sent as levy proceeds each pay day.
Example:
The taxpayer agrees
to an amount for an installment agreement. A payroll
deduction agreement is desirable to avoid a default,
but the employer is reluctant to agree. A wage levy
with a partial release of wages
more than $X, sets a fixed amount that
will be sent as levy proceeds each pay day. Anything
more than that is paid to the taxpayer.
5.11.2.3
(08-01-2004)
Returning Levied Property to the Taxpayer
- Before July 30, 1996, once
levy proceeds were deposited, there was no authority to
return the money regardless of the circumstances.
5.11.2.3.1 (08-01-2004)
Authority for Returning Levied Property
- On July 30, 1996,
Taxpayer Bill of Rights 2 (TBOR2) was enacted. This
added subsection (d) to IRC 6343.
- Now levy proceeds can
be returned at the discretion of
the serviceif:
- The levy is
premature
- IRS procedures
were not followed
- An installment
agreement is made for a liability included on
the levy, unless the agreement provides
otherwise
- Returning the
payment facilitates collection
- With the
consent of the taxpayer or the Taxpayer
Advocate, returning the payment is in the best
interest of the taxpayer (as determined by the
National Taxpayer Advocate [NTA]) and the
government
Example:
Some companies
notify the Service of an address for serving notices
of levy. See IRM 5.11.2.1.5. A levy is sent to
another address by mistake. The company forwards it
to the correct address, and a levy payment is sent.
The taxpayer may claim the payment
must be returned,
because procedures were not followed. This is not
the case. The error is trivial, and returning the
payment is unwarranted.
Example:
An installment
agreement form gets lost and does not get loaded
onto IDRS. Because of this, the liability becomes a
balance due. The taxpayer's bank account is then
levied. If the error is found before payment is
received, the levy must be released. However, the
error may be found after the payment is received and
deposited. There is authority to correct the error,
and return the money.
- The taxpayer can file a
claim for the return of property up to nine months after
the levy. Claims made after nine months cannot be
considered.
Note:
The Service can
refund levy proceeds without a claim from the
taxpayer. If the taxpayer requests the return of
money within nine months of the levy, the Service
may return the money after the nine month period
ends if time is needed to investigate and process
the request. The money can, then, be refunded after
nine months.
5.11.2.3.2 (07-26-2002)
Factors to Consider Before Returning a Levy Payment
- Except for a levy in
violation of the law (see IRM 5.11.2.3.1(3)), there are
no rigid rules for deciding whether to return a levy
payment. The decision is made on a case-by-case basis.
At least one of the conditions in IRM 5.11.2.3.1(2) must
exist. Some things to consider include:
- How significant
is a procedural error? In the first example in
IRM 5.11.2.3.1(3), the error is harmless and
insignificant.
- Did the person
who received the levy get bad instructions about
how much to send?
- Is there an
error that affects whether the levy should have
been issued?
- Is there an
inequity in keeping the payment?
- Would the levy
have been released if all facts were known
before the payment was received?
- Is the taxpayer
a pyramiding, delinquent trust fund repeater?
5.11.2.3.3 (05-05-1998)
Rejecting Claims
- When a written claim is
rejected, give the taxpayer a written rejection. The
group manager will sign this. Include in the rejection
letter:
- The reason(s)
for rejection
- The right to
appeal, and
- How to appeal
- A written rejection is
not required, unless a written claim is filed.
5.11.2.3.4 (08-01-2004)
Delegation of Authority to Return Levy Payments
- See Delegation Order
191 to determine who can approve returning levy
proceeds.
5.11.2.3.5 (08-01-2004)
Getting the Money Refunded
- See IRM 5.1.15.7,
Requests for Manual Refunds,for
general instructions for issuing a manual refund.
Note:
Although IRM
5.1.15.7.2 mentions only the Territory Manager,
returning levy proceeds can be approved by the
people listed in Delegation Order 191.
- Unlike money that has
been wrongfully levied, no interest is paid on the
refund.
5.11.2.3.6 (07-26-2002)
Effect on Penalty & Interest
- When levy proceeds are
returned, the delinquent tax is not forgiven. The
taxpayer is still obligated to pay the amount owed, and
the Service is obligated to collect it.
- However, the taxpayer
will not be charged failure to pay penalty and interest
during the period that the Service held the money. After
the payment is returned to the taxpayer, penalty and
interest start to accrue again.
- The taxpayer owed
$10,000.
On April 10, 1998, $2,500 was collected as levy
proceeds.
On May 4, 2000, the $2,500 was returned.
- Compute accrued
interest on $10,000 through April 10, 1998.
Then, compute interest on $7,500 for the period
April 11, 1998, though May 4, 2000. Assess the
total interest from these two steps using
transaction code (TC) 340. Have the TC 340 input
with the COMP-INT-AMT and INT-TO-DT fields
complete. The COMP-INT-AMT is the amount still
owed, so IDRS and master file should continue
computing interest on this. In this example, it
would be the amount still owed on May 4, 2000.
The INT-TO-DATE is the date that the interest
has been computed through, i.e. in this example,
May 4. This will allow IDRS and master file to
compute interest after that, so it will not have
to be done manually.
- Compute the
failure to pay penalty that accrued from April
11, 1998, through May 4, 2000, on $2,500. Input
this amount using TC 271 with Reason Code 62.
This will allow IDRS and master file to compute
the penalty after that, so it will not have to
be done manually.
5.11.2.4
(07-26-2002)
Returning Levied Property to Someone Other Than the
Taxpayer
- Generally, if levied
property must be returned, it is given back to the
taxpayer(s) who owed the tax that was credited with the
payment. Typically, if a levy payment is applied to a
liability owed by John and Mary Smith, and it must be
returned later, the refund check would be in the names John
and Mary Smith.
- Sometimes the name(s) on
the check can not be the same as the name(s) on the
delinquent account because the money must be retuned to the
third party who was wrongfully levied upon.
Example:
Fred Jones owes
delinquent tax for tax year 1997, when his filing status
was single. In addition, Fred and Mary Jones owe
delinquent tax for returns they filed jointly for tax
years 1998 and 1999. One notice of levy is mistakenly
issued for all three tax years showing Fred and Mary
Jones as the taxpayers. This results in money from
Mary's bank account being used to pay all three
liabilities. The payment that is applied to tax year
1997 is for a liability owed by Fred Jones, but the
refund check for that payment must be issued in the name
Mary Jones. This example assumes the bank account is not
community property.
Example:
Sam Wilson's Social
Security benefits are levied. After five levy payments
have been sent, the Social Security Administration finds
out that Sam had died and was only eligible for benefits
during the first three months. The other two months'
levy payments must be returned to the Social Security
Administration.
- See IRM 5.1.15.7,
Requests for Manual Refunds,for
instructions about how to get the manual refund check
issued.
- A wrongful levy is one in
which the levy proceeds are money that belonged to someone
other than the delinquent taxpayer, such as in the first
example in (2), above or when the levy destroyed the
interest of a lien senior to the federal tax lien. In these
cases, the person the money is returned to is entitled to
interest. Using the overpayment rate in IRC 6621, interest
runs from the date the levy payment was received to the
refund schedule date. The date the interest runs through can
be no earlier than thirty days before the money is actually
returned.
- When a wrongful levy is not
involved, as in the second example in (2), above, no
interest is paid.
5.11.2.5
(07-26-2002)
Disposing of Surplus Proceeds
- Every reasonable effort
will be made to release a notice of levy timely. However,
sometimes surplus levy proceeds are received. Surplus
proceeds are payments greater than the amount still owed for
the liabilities listed on the notice of levy.
Example:
A refund posts after the
levy source has already sent payment for the levy
- The payment may need to be
returned to the levy source when there are surplus proceeds.
- If surplus proceeds are
received, and taxes are owed that were not listed on the
notice of levy, the surplus can be offset to those taxes.
However, use levy proceeds to pay the taxes listed on the
levy, first. The surplus may be offset to taxes not listed
on the notice of levy, even if all the notices in IRM
5.11.1.2.1 have not been given to the taxpayer for those
taxes.
Exhibit 5.11.2-1 (05-05-1998)
Pattern Letter P–548
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(Reference 2.2.2) |
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Person to Contact: |
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Contact Telephone
Number: |
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Date: |
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Dear (Name of
Taxpayer): |
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We apologize for the
concern and inconvenience we caused you by the
erroneous serving of a notice of levy, dated
______ , that attached assets, belonging to you, in
the possession or control of
______ , at ______ . |
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We are enclosing a
copy of this letter, since you may want to furnish
it to your employer, bank, or other individual or
organization. |
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If you have any
questions, please contact the person whose name and
telephone number are shown above. |
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Sincerely yours, |
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Area Director |
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By |
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(Signature and
title) |
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Enclosures:
Copy of this letter
Copy of Release of Levy |
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