IRS Play a Mean Trick on Levies
IRS Plays Mean Trick on Levies
I got a call a couple days ago that triggered me writing this article. The caller had their bank account levied by the IRS. The IRS got away with $50,000. Because 26 USC § 6330 provides in pertinent part:
(e) Suspension of collections and statute of limitations
(1) In general
Except as provided in paragraph (2), if a hearing is requested under subsection (a)(3)(B), the levy actions which are the subject of the requested hearing shall be suspended for the period during which such hearing, and appeals therein, are pending.
I asked the caller if he had requested a Collection Due Process Hearing. He replied that he had, but that it had been denied. I exclaimed, "How could they deny it?" He replied that the IRS had told him it was denied because his request for the hearing, which the caller mailed after the Notice of Levy was sent to the bank, was not made timely. Ohhh, hurt me. I asked the caller, did they send you the notice? I have this provision of § 6330 fixed in my head (my emphasis added):
(a) Requirement of notice before levy
(1) In general
No levy may be made on any property or right to property of any person unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made. Such notice shall be required only once for the taxable period to which the unpaid tax specified in paragraph (3)(A) relates.
Since so many people I have talked to haven't received a notice of their right to hearing prior to the IRS sending a Notice of Levy, I figured that was the case once again. The caller replied that they had, but, they had sent it several months in advance of the levy arriving at the bank. 26 USC § 6330 provides this respecting the timing of the notice (my emphasis added):
(a)(2) Time and method for notice
The notice required under paragraph (1) shall be
(A) given in person;
(B) left at the dwelling or usual place of business of such person; or
(C) sent by certified or registered mail, return receipt requested, to such person's last known address;
not less than 30 days before the day of the first levy with respect to the amount of the unpaid tax for the taxable period.
This is not the first time I have heard of this happening. I've given some thought to why this happens and have arrived at a conclusion. I think that the provisions of 26 USC § 6330 gives the IRS fits. But, the IRS has figured out that their levy has the best chance of working several months after sending the notice of a right to a hearing described in 26 USC § 6330(a)(1), and the corresponding levy suspension described in 26 USC § 6330(e)(1), after the people have had a chance to become less guarded.
I am convinced that many people receive their notice of their right to a Collection Due Process Hearing and do not take action on it because they do not know what to do. Also, I don't think they recognize the ominous nature of that notice; it is telling them that the IRS is serious about levying their paycheck or bank account. At www.irsterminator.com I describe in nine 2-10 minute long videos how to very effectively take advantage of the opportunity for a Collection Due Process Hearing, and it's suspension of collection activity, with a minimum of effort on your part.
Best times to call: 8:30 am-9:00 pm MST
Bear's Pages: www.irsterminator.com www.legalbears.com
www.irslienthumper.com www.irslevythumper.com www.irs-armory.com www.freedivorceforms.net
www.cantheydothat.com (a free lien evaluation) Send an email to:
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I have been struggling to understand this issue and how the government manages to seize property without due process of law. There is a nexus here for the "Notice of Deficiency".
The IRS uses the 3219(SC/CG) Letter as their "Notice of Deficiency" Letter. This letter suggests that they have made a "determination" and you must choose to rebut it in Tax Court. I have learned the hard way what will happen if you choose not to file a petition in Tax court to rebut their claim.
The 3219(SC/CG) Letter specifically states: “If you decide not to sign and return the waiver and you do not petition the tax court, the law requires us to assess and bill you for the deficiency after the 90 days from the date of this letter (150 days if this letter is addressed to you outside of the United States).” This letter also refers to penalties that fall under Title 27 Alcohol, Tobacco and Firearms. I ignored the letter assuming that I would be fine if they chose to assess me. Wrong!
They seized my property anyway! I have been struggling to understand the connections between all these ideas and in particular the issues related to "United States Citizen" Admiralty Law, and "invisable contracts" and the way the IRS and the DOJ uses Title 27 Alcohol, Tobacco and Firearms penalties. After all, they seized my property without any assessment or judgment from a court. It looked like "Piracy" and therefore Admiralty Law to me! Never mind the gold fringed flags!
A DOJ attorney suggested to me that it was as a result of ignoring this letter caused the liens and levies to "arise in a mechanical fashion". Of course he was not telling me the whole truth, but there was some truth in his statement.
Below is what I discovered today and it is still so new to me I haven't digested it and been able to make it more concise. This gets rather long, but I think it is worth discussing and hashing out.
Here is how they get to use Admiralty Law:
26 USC 7327 Customs laws applicable
The provisions of law applicable to the remission or mitigation by the Secretary of forfeitures under the customs laws shall apply to forfeitures incurred or alleged to have been incurred under the internal revenue laws.
Forfeiture is a broad term that can be used to describe any loss of property without compensation. “The involuntary relinquishment of money or property without compensation as a consequence of a breach or nonperformance of some legal obligation or the commission of a crime.” The surrender by an owner of his or her entire interest in real property, mandated by law as a punishment for illegal conduct or Negligence. Under old English Law, the release of land by a tenant to the tenant's lord due to some breach of conduct, or the loss of goods or chattels (articles of Personal Property) assessed as a penalty against the perpetrator of some crime or offense and as a recompense to the injured party.
A forfeiture may be privately arranged. For example, in a contractual relationship, one party may be required to forfeit specified property if the party fails to fulfill its contractual obligations. Courts are often called upon to resolve disputes regarding a forfeiture of property pursuant to a private contract. They may examine these cases to see whether they are fair and not the result of duress, deception, or other nefarious tactics.
The forfeitures that inspire the most discussion in the U.S. are those that are exercised by the state or federal government. Congress and state legislatures maintain statutes that allow law enforcement to seize property on suspicion of certain criminal activity. The property can be forfeited to the government upon conviction. In many cases, forfeiture to the government occurs without criminal prosecution.
The general concept of forfeiture in the United States can be traced to the English Common Law, or court decisions. English courts recognized three types of forfeiture: Escheat upon attainder, deodand, and statutory forfeiture. Under the doctrine of escheat upon attainder, a person's property reverted to the government upon that person's conviction for a felony or Treason. This doctrine was premised on the theory that the sovereign government possessed a superior property interest.
The doctrine of deodand, or guilty property, allowed English courts to strip a person of property if the property was involved in a certain offense. This doctrine allowed a court to seize property regardless of the owner's culpability. For example, if a horse caused the death of a person, the owner would lose that horse, even if he had been completely blameless.
Statutory forfeiture, or forfeiture based on written laws, was the only kind of English forfeiture recognized in the American colonies. In other words, the colonies did not order the forfeiture of property unless it was required pursuant to a law passed by the legislature. However, the written laws in the colonies sustained the concept of deodand, and this concept survives to the present day.
Although forfeiture laws have existed in the United States since the colonial period, they have not always been favored. Early cases of forfeiture usually involved extraordinary circumstances, such as the seizure of pirate ships or warring ships. After the Civil War, forfeitures were used for tax-revenue violations, but government-imposed forfeiture was a rarity.
In 1970, Congress enacted the Comprehensive Drug Abuse Prevention and Control Act (21U.S.C.A. § 881), also known as the Forfeiture Act. The Forfeiture Act authorized federal prosecutors to bring civil forfeiture actions against certain properties that were owned by persons who had been convicted in federal court of dealing drugs. This act was seldom used because it limited forfeiture to the property of persons who had been convicted of participating in continuing criminal enterprises.
In 1978, Congress amended the Forfeiture Act to allow the forfeiture of anything of value used or that was intended to be used by a person to purchase illegal drugs (Psychotropic Substances Act of 1978 [Pub. L. No. 95-633, tit. III, § 301(a), 92 Stat. 3768, 3777 (codified as amended at 21 U.S.C.A. § 8821(a)(6))]). This change expanded the Forfeiture Act to allow the forfeiture of all proceeds and property that were traceable to the purchase of an illegal drug. Under the 1978 amendments, the federal government was authorized to proceed in rem against property. In rem forfeiture actions are taken against the property itself, not against its owner. In such proceedings, the guilt or innocence of the property owner regarding any criminal activity is irrelevant. Thus, under the Forfeiture Act, the government may remove property from persons it suspects of a crime, without ever charging them with a crime. The basis of this kind of forfeiture is traced back to the deodand doctrine of the English common law.
The Forfeiture Act was again amended in 1984, when the Comprehensive crime control act (Pub. L. No. 98-473, § 306, 98 Stat. 1837, 2050 [codified as amended at 21 U.S.C.A. § 881(a)(7)]) expanded it to authorize the in rem forfeiture of real property, or land and buildings. Under the 1984 act, federal authorities may seize any real property that is purchased, used, or intended to be used to facilitate narcotics trafficking. Although the Legislative History of the 1984 act suggests that Congress intended real property forfeiture to apply only to drug manufacturing or storage facilities, courts have construed the act to allow the seizure of any real property, including fraternity houses, hotels, ranches, and private residences. Furthermore, courts have allowed real property forfeiture regardless of whether the property was used to store or manufacture drugs.
Forfeiture under the Forfeiture Act begins with either the constructive or actual seizure of property after a district court has issued a warrant. This warrant must be based on a reasonable belief that the property was used in a crime subject to forfeiture, but this reasonable belief can be based entirely on Hearsay and Circumstantial Evidence. After the property is seized, the court holds it until the case is resolved.
Forfeiture proceedings may be either criminal or civil. If the government seeks forfeiture pursuant to criminal charges, it must establish the defendant's guilt Beyond a Reasonable Doubt. If acquitted, the defendant is entitled to retrieve the seized property.
To initiate a civil forfeiture proceeding, the government need only show reasonable grounds to believe that the property was used in, or derived from, certain prohibited activities. If the defendant fails to rebut the showing of probable cause with sufficient evidence, the government may keep the property. At trial, the government's standard in a civil forfeiture is proof by a preponderance of the evidence, a lesser burden than a criminal case's reasonable doubt standard.
The Forfeiture Act also allows law enforcement agencies to receive a portion of the proceeds from property forfeiture. Many legal scholars claim that this is a perversion of the police function because it detracts from the more compelling, traditional police function of fighting violent crime. These critics also argue that law enforcement agencies may become financially dependent on the very drug activity that they are supposed to curtail. Proponents of this budgetary scheme argue that drug activity is the source of much violent crime. They further note that the proceeds both benefit community programs and increase the capacity to fight violent crime.
The Racketeer Influenced and Corrupt Organizations Act (RICO) (18 U.S.C.A. §§ 1961 et seq.) is another vehicle for forfeiture in federal court. Enacted as title IX of the Organized Crime Control Act of 1970 (Pub. L. No. 91-452, 84 Stat. 922), RICO allows federal authorities to seize the property of persons engaged in a pattern of Racketeering. Persons who commit murder, Kidnapping, perjury, Extortion, Arson, Robbery, Bribery, gambling, or narcotics offenses two or more times within a ten-year period thus may be forced to forfeit all property that is traceable to the crimes. In a 1984 amendment, Congress added the violation of federal and state Obscenity laws to the list of racketeering offenses.
In Bennis v. Michigan, Tina B. Bennis brought suit against the state of Michigan after it seized the 1977 Pontiac that she owned jointly with her husband, John Bennis. Her husband had been arrested and convicted in Michigan state court of gross indecency in connection with his encounter with a prostitute. The county prosecutor filed a complaint alleging that the Pontiac was a public Nuisance and subject to abatement, or forfeiture. An order of abatement was entered by the trial court. On appeal by Bennis, the appeals court reversed. On subsequent appeal by the state of Michigan, the Michigan Supreme Court also reversed. Bennis appealed to the U.S. Supreme Court.
The high court affirmed the decision of the Michigan Supreme Court. Bennis argued that the forfeiture was a violation of the due process clause of the Fourteenth Amendment because she had not known that the Pontiac would be used for prostitution. The Court cited a long line of cases supporting the proposition that a person may be deprived of property if it has been put to criminal use, regardless of the owner's knowledge or participation.
The Court also dismissed Bennis's argument that the forfeiture violated the Fifth Amendment's Takings Clause, which generally requires compensation for property seized by the government. According to the Court, the government is under no obligation to reimburse a person for property it has seized pursuant to government authority other than the power of Eminent Domain. Ultimately, Bennis lost her ownership of the Pontiac, despite being innocent of any wrongdoing. In a strong dissent, Justice John Paul Stevens argued that "neither logic nor history supports the Court's apparent assumption that [a person's] complete innocence imposes no constitutional impediment to the seizure of their property simply because it provided the locus for a criminal transaction."
Defendants have cultivated several defenses to forfeiture, and some have been successful. If the initial seizure is not preceded by notice and a hearing before a court, a defendant may argue that a forfeiture violates the Due Process Clause of the Fifth and Fourteenth Amendments. Despite the decision in the Alexander case, if a massive, estate-depleting forfeiture is disproportionate to the offense that gave rise to it, it may be found to violate the Excessive Fines Clause of the Eighth Amendment.
In addition, Congress has enacted an "innocent owner" defense in civil drug forfeitures (21U.S.C.A. § 881(a)(6) ). These are cases in which forfeiture is sought without prosecution of the owner. A defendant in a civil forfeiture case may invoke this defense if the property was connected with the illegal drugs without the owner's knowledge or consent.
Supporters of forfeiture laws cite the laws' effectiveness in fighting crime and stripping criminals of their resources. Many legal observers argue that the increasing use of government forfeiture is a flagrant violation of several constitutional rights. The state of forfeiture in contemporary law has been compared to "an Orwellian nightmare" (Aznavoorian 1995, 553), creating a climate that has "turned police agencies into bounty hunters, who, in their quest for cash, have harmed innocent citizens or those guilty of only minor offenses" (Henry 1994, 52). By the early 1990s, the federal government was prosecuting only 20 percent of the individuals from whom they had seized property through forfeiture. Congress finally responded by passing the Civil Asset Forfeiture Reform Act of 2000 (Pub.L. No. 106-185, 114 Stat. 202), which requires federal prosecutors to show a substantial connection between the property and the crime. In addition, it allows the property to be released by the district court pending final disposition of the case when the owner can demonstrate that possession by the government causes a hardship to the owner. Finally, the law permits property owners to sue the government for any damage to the property if they prevail in a civil forfeiture action.
In rem:[Latin, In the thing itself.] A lawsuit against an item of property, not against a person (in personam).
An action in rem is a proceeding that takes no notice of the owner of the property but determines rights in the property that are conclusive against all the world. For example, an action to determine whether certain property illegally imported into the United States ought to be forfeited can be captioned United States v. Thirty-nine Thousand One Hundred and Fifty Cigars. The object of the lawsuit is to determine the disposition of the property, regardless of who the owner is or who else might have an interest in it. Interested parties might appear and make out a case one way or another, but the action is in rem, against the things.
In rem lawsuits can be brought against the property of debtors in order to collect what is owed, and they are begun for the partition of real property, foreclosure of mortgages, and the enforcement of liens. They may be directed against real or Personal Property. In rem actions are permitted only when the court has control of the property or where its authority extends to cover it. For example, the courts in Kansas may determine rights to a farm in Kansas, but not the ownership of a cannery in Texas. The in rem jurisdiction of a court may be exercised only after parties who are known to have an interest in the property are notified of the proceedings and have been given a chance to present their claim to the court.
Since there are no implementing regulations under 26 CFR 7231, lets see what Title 27 say for the implementing regulation:
27 CFR 72.31 Laws applicable.
Remission or mitigation of forfeitures shall be governed by the applicable customs laws.
(Sec. 613, 618, 46 Stat. 756, as amended, 757, as amended, sec. 4, 53 Stat. 1292, sec. 7327, 68A Stat. 871; 19 U.S.C. 1613 Disposition of proceeds of forfeited property, 1618 Remission or mitigation of penalties, 49 U.S.C. 784, 26 U.S.C. 7327 Customs Law Applicable - there we are... full circle back to the IRS seizing property under “alleged forfeiture”)
Here is where the DOJ attorneys and IRS agents tie it together:
“19 USC 1613 Disposition of proceeds of forfeited property
(a) Application for remission of forfeiture and restoration of proceeds of sale; disposition of proceeds when no application has been made
Except as provided in subsection (b) of this section, any person claiming any vessel, vehicle, aircraft,merchandise, or baggage, or any interest therein, which has been forfeited and sold under the provisions of this chapter, may at any time within three months after the date of sale apply to the Secretary of the Treasury if the forfeiture and sale was under the customs laws, or to the Commandant of the Coast Guard or the Commissioner of Customs, as the case may be, if the forfeiture and sale was under the navigation laws, for a remission of the forfeiture and restoration of the proceeds of such sale, or such
part thereof as may be claimed by him. Upon the production of satisfactory proof that the applicant did not know of the seizure prior to the declaration or condemnation of forfeiture, and was in such circumstances as prevented him from knowing of the same, and that such forfeiture was incurred without any willful negligence or intention to defraud on the part of the applicant, the Secretary of the Treasury, the Commandant of the Coast Guard, or the Commissioner of Customs may order the proceeds of the sale, or any part thereof, restored to the applicant...
big gap in text here... and a lot of extra words below to give the big picture of how it folds back in to itself!
Transfer of Functions
For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6. Coast Guard transferred to Department of Transportation, and functions, powers, and duties relating to Coast Guard of Secretary of the Treasury and of other officers and offices of Department of the Treasury transferred to Secretary of Transportation by Pub. L. 89-670, Sec. 6(b)(1), Oct. 15, 1966, 80 Stat. 938. Section 6(b)(2) of Pub. L. 89-670, however, provided that notwithstanding such transfer of functions, Coast Guard shall operate as part of Navy in time of war or when President directs as provided in section 3 of Title 14. See section 108 of Title 49, Transportation.
For transfer of functions of other officers, employees, and agencies of Department of the Treasury, with certain exceptions, to Secretary of the Treasury with power to delegate, see Reorg. Plan No. 26 of 1950, Secs. 1, 2, eff. July 31, 1950, 15 F.R. 4935, 64 Stat. 1280, 1281, set out in the Appendix to Title 5, Government Organization and Employees. Commissioner of Customs, referred to in text, was an officer in Department of the Treasury. Functions of Coast Guard and Commandant of Coast Guard excepted from transfer when Coast Guard is operating as part of Navy under sections 1 and 3 of Title 14, Coast Guard.
By Reorg. Plan No. 3 of 1946, set out in the Appendix to Title 5, Government Organization and Employees, functions of Secretary of Commerce relating to remission and mitigation of fines, penalties and forfeitures incurred for violation of navigation laws were transferred to Commandant of Coast Guard and Commissioner of Customs, subject to direction and control of Secretary of the Treasury...”
“19 USC 1618 Remission or mitigation of penalties
Whenever any person interested in any vessel, vehicle, aircraft, merchandise, or baggage seized under the provisions of this chapter, or who has incurred, or is alleged to have incurred, any fine or penalty thereunder, files with the Secretary of the Treasury if under the customs laws, and with the Commandant of the Coast Guard or the
Commissioner of Customs, as the case may be, if under the navigation laws, before the sale of such vessel, vehicle, aircraft, merchandise, or baggage a petition for the remission or mitigation of such fine, penalty, or forfeiture, the Secretary of the Treasury, the Commandant of the Coast Guard, or the Commissioner of Customs, if he finds that such fine, penalty, or forfeiture was incurred without willful negligence or without any intention on the part of the petitioner to defraud the revenue or to violate the law, or finds the existence of such mitigating circumstances as to justify the remission or mitigation of such fine, penalty, or forfeiture, may remit or mitigate the same upon such terms and conditions as he deems reasonable and just, or order discontinuance of any prosecution relating thereto. In order to enable him to ascertain the facts, the Secretary of the Treasury may issue a commission to any customs officer to take testimony upon such petition: Provided, That nothing in this section shall be construed to deprive any person of an award of compensation made before the filing of such petition.
And lastly, back to Title 26:
26 USC ' 7491. Burden of proof
(a) Burden shifts where taxpayer produces credible evidence
(1) General rule
If, in any court proceeding, a taxpayer introduces credible evidence with respect to any factual issue relevant to ascertaining the liability of the taxpayer for any tax imposed by subtitle A or B, the Secretary shall have the burden of proof with respect to such issue.
Paragraph (1) shall apply with respect to an issue only if--
(A) the taxpayer has complied with the requirements under this title to substantiate any item;
(B) the taxpayer has maintained all records required under this title and has cooperated with reasonable requests by the Secretary for witnesses, information, documents, meetings, and interviews...
I am sorry that this is so long, but as I said, this is brand new to me and I haven't digested it.
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What is it about people that never learn the lessons! It's one thing for someone else to paint the target on your back; it's quite another to paint it yourself. Here they are lessons again:
1. The IRS only knows your location from the information on a change of address form; or lacking that, the address when you last filed.
2. The IRS MOST OFTEN files liens on the addresses of taxpayers it has on file and SOMETIMES where it can find property in a credit report or public record. See 1 until it SINKS in!!
3. The IRS will respect a change of address IMMEDIATELY.
4. If you're not a taxpayer, why do you continue to accept mail at an address known to someone to be a taxpayer? Supposing someone came up to your house yelling, Oh silly taxpayer!! Oh stupid taxpayer!! Here is mail for you!! Would you not correct him and maybe tell him where the mail should go to maybe some office that deals with taxpayers??
5. Where would you find the addresses of parties who deal with taxpayers?
6. The IRS gets INFORMATION from INFORMATION RETURNS. So if you are STUPID enough to get INTEREST, then the bank or brokerage WILL file an INFORMATION RETURN and then the IRS WILL levy there first. Remember: All thieves are LAZY.
7. The IRS is allowed to SURVEY banks in the VICINITY of the ADDRESS they have on FILE for you. See Number 1 till this sinks in. They CAN'T SURVEY all banks, especially those NOT in the immediate vicinity.
8. Anything of an account in your NAME is suspect, especially if the NAME matches the SSN.9. Anything in a credit report is accessible by the IRS because the IRS is a client of credit reporting agencies.
Post Shabbat Shalom Barry, et alia,
So in order to translate this into a peaceful solution, it appears that you are saying is that:
- When one does his personal business in his own name (buy tooth brushes, razor blades, the occasional cream cheese Danish, et cetera) through his own, non-interest bearing bank account, and
- uses a tax immune, hybrid Corporation/Trust for taking care of the financial needs of a religious society (which includes his family), and
- stores the bulk of the money offshore in a Panamanian hybrid Corporation/Trust bank account that is not even taxable in Panama, then
- this would keep the Internal Revenue Service off of one's back.
I have personally been involved with several Offshore Asset Protection companies, and when I had suspicions that any company that I was doing business with was operating illegally, I would leave them. I know from personal knowledge that the ones that have been taken down by the Internal Revenue Service/Department of Justice have been taken down because of crimes OTHER than the series of entities mentioned above. Usually, the leaders of the Offshore Asset Protection companies have taken legal short-cuts in order to maximize on their profits. Usually, the shortcuts involve the use of false Social Security Numbers or using someone’s Social Security Number without authorization, both of which are crimes.
While some of the cases that I have studied brought charges regarding money laundering, not a single one of the court cases that I have studied have brought up any specifics regarding any of the legal transfers of money between tax immune organizations/entities. In case anyone forgets, money laundering is the act/process of hiding money that is the result of a crime. As long as one remembers that when the money is from a legal source, and all of the taxes that are legally owed are paid, then the money can be sent anywhere you want to send it.