17348Re: Contradictory sections in 26 USC re honoring levies
- Dec 7, 2009Fred,
I believe you were looking in the wrong place for the answer. The section your referring to is not in the US Code, its in the CFR. Here is what I believe you were searching for:
26 CFR 301.6332-1(c)(2)
"Exception for certain incorrectly surrendered property. Any
person who surrenders to the Internal Revenue Service property or rights
to property not properly subject to levy in which the delinquent
taxpayer has no apparent interest is not relieved of liability to a
third party who has an interest in the property. However, if the
delinquent taxpayer has an apparent interest in property or rights to
property, a person who makes a good faith determination that such
property or rights to property in his or her possession has been levied
upon by the Internal Revenue Service and who surrenders the property to
the United States in response to the levy is relived of liability to a
third party who has an interest in the property or rights to property,
even if it is subsequently determined that the property was not properly
subject to levy."
The regulation cannot alter or go beyond the scope of the statute. Therefore, neither the statute nor regulation can apply to an individual who has not been made liable for a tax.
The information as stated on a "notice of levy", is that a person is required to turn over property because a tax liability exists and the person named has refused to pay. You cannot refuse to pay something that cannot exist.
Can you voluntarily pay your bill at the corner grocery store if you do not have a bill at the corner grocery store? Can the corner grocer collect money from you to pay your bill if you do not have a bill? Of course not. He may take your money. He may put it in the cash register, or in his pocket. He may establish an account pretending you had a bill. But your bill cannot be paid, because you did not have a bill in the first place. By the same token, you cannot voluntarily pay your taxes if you are not subject to the tax in the first place.
The Anti-Injunction Act, which is restated in 26 U.S.C. 7421, with certain exceptions, prevents suits from being maintained to stop the assessment or collection of a
tax. The Anti-Injunction Act does not, however, stop a suit regarding the taking of money under the guise of supposedly "collecting taxes". (See Miller v. Standard Nut Margarine Co., 284 U.S. 498 (1932); Botta v. Scanlon, 288 F. 2d 504 (2nd Cir. 1961). Almost any attorney in the country should be able to help obtain such an injunction once he understands that it is the revenue taxable activity, and not the income, that is the subject of the tax.
If the individual is not subject to the tax, there can be no collection of a tax. If the individual is not subject to the tax, there can be no valid lien, no valid levy, no valid
assessment, no valid proposed assessment, and no valid summons of records. Just because a document is called an assessment, does not make it an assessment. Just because a document is called a summons, does not make it a summons.
If a nontaxpayer is asked if he received an assessment, the answer should be that he received an invalid document which is merely called an assessment, as this document has no factual basis to support it.
If the individual is not subject to the tax, anything a tax collection agency does, or anything a court does to such an individual under the revenue laws is invalid, null and
Please don't ignore or disregard the first sentence of section 6331(a) and give full
emphasis to the next sentence. Section 6331(a) reads in part as follows...
"If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand..."
The bottom line here is that if a person is truly liable for any tax, the government can lay claim to that individual's property. Don't get caught up in putting the burden of proof on yourself to prove that it applies to someone else ("any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality
of the United States or the District of Columbia"), but not to you. Why not keep the burden of proof on the government to prove that YOU are liable for a tax?
Hope you find this helpful!
--- In email@example.com, Fred Marshall <fredm07@...> wrote:
> 26 USC 6332(d)(1) is something a payroll clerk could cite as
> justification for not defying a levy. Years ago, I found another
> section somewhere in 26 USC that says something to the effect that a
> person wrongly surrendering property or monies of the one being levied
> *can* be held liable by the person whose property or money it is, but
> for the life of me, I haven't been able to find it.
> Anyone know where that is? (I've searched using FindLaw & Cornell's LII
> site, to no avail.)
> Once I find/get that, I want to investigate if they're really
> contradictory, and if so, which one takes precedence & why.
> Thanks in advance for your help - I appreciate it.
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