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Administrative appeal of liens-26 USC § 6326

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  • Legalbear
    I just went looking for 26 USC § 6343(j) on withdraw the Lien and notify the creditors and it’s gone. Currently, § 6343 deals entirely with releasing
    Message 1 of 2 , Jun 14, 2012
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      I just went looking for 26 USC § 6343(j) on withdraw the Lien and notify the creditors and it’s gone. Currently, § 6343 deals entirely with releasing levies. At 26 USC § 6326 I found the following:

       

      (a) In general

      In such form and at such time as the Secretary shall prescribe by regulations, any person shall be allowed to appeal to the Secretary after the filing of a notice of a lien under this subchapter on the property or the rights to property of such person for a release of such lien alleging an error in the filing of the notice of such lien.

       

      (b) Certificate of release

      If the Secretary determines that the filing of the notice of any lien was erroneous, the Secretary shall expeditiously (and, to the extent practicable, within 14 days after such determination) issue a certificate of release of such lien and shall include in such certificate a statement that such filing was erroneous.

       

      Here’s the regulation:

       

      § 301.6326-1 Administrative appeal of the erroneous filing of notice of federal tax lien.

       

      (a) In general. Any person may appeal to the district director of the district in which a notice of federal tax lien was filed on the property or rights to property of such person for a release of lien alleging an error in the filing of notice of lien. Such appeal may be used only for the purpose of correcting the erroneous filing of a notice of lien, not to challenge the underlying deficiency that led to the imposition of a lien. If the district director determines that the Internal Revenue Service has erroneously filed the notice of any federal tax lien, the district director shall expeditiously, and, to the extent practicable, within 14 days after such determination, issue a certificate of release of lien. The certificate of release of such lien shall include a statement that the filing of notice of lien was erroneous.

       

      (b) Appeal alleging an error in the filing of notice of lien. For purposes of paragraph (a) of this section, an appeal of the filing of notice of federal tax lien must be based on any one of the following allegations:

       

      (1) The tax liability that gave rise to the lien, plus any interest and additions to tax associated with said liability, was satisfied prior to the filing of notice of lien;

      (2) The tax liability that gave rise to the lien was assessed in violation of the deficiency procedures set forth in section 6213 of the Internal Revenue Code;

      (3) The tax liability that gave rise to the lien was assessed in violation of title 11 of the United States Code (the Bankruptcy Code); or

      (4) The statutory period for collection of the tax liability that gave rise to the lien expired prior to the filing of notice of federal tax lien.

       

      (c) Notice of federal tax lien that lists multiple liabilities. When a notice of federal tax lien lists multiple liabilities, a person may appeal the filing of notice of lien with respect to one or more of the liabilities listed in the notice, if the notice was erroneously filed with respect to such liabilities. If a notice of federal tax lien was erroneously filed with respect to one or more liabilities listed in the notice, the district director shall issue a certificate of release with respect to such liabilities. For example, if a notice of federal tax lien lists tax liabilities for years 1980, 1981 and 1982, and the entire liabilities for 1981 and 1982 were paid prior to the filing of notice of lien, the taxpayer may appeal the filing of notice of lien with respect to the 1981 and 1982 liabilities and the district director must issue a certificate of release with respect to the 1981 and 1982 liabilities.

       

      (d) Procedures for appeal— (1) Manner. An appeal of the filing of notice of federal tax lien shall be made in writing to the district director (marked for the attention of the Chief, Special Procedures Function) of the district in which the notice of federal tax lien was filed.

       

      (2) Form. The appeal shall include the following information and documents:

       

      (i) Name, current address, and taxpayer identification number of the person appealing the filing of notice of federal tax lien;

      (ii) A copy of the notice of federal tax lien affecting the property, if available; and

      (iii) The grounds upon which the filing of notice of federal tax lien is being appealed.

      (A) If the ground upon which the filing of notice is being appealed is that the tax liability in question was satisfied prior to the filing, proof of full payment as defined in paragraph (e) of this section must be provided.

      (B) If the ground upon which the filing of notice is being appealed is that the tax liability that gave rise to lien was assessed in violation of the deficiency procedures set forth in section 6213 of the Internal Revenue Code, the appealing party must explain how the assessment was erroneous.

      (C) If the ground upon which the filing of notice is being appealed is that the tax liability that gave rise to the lien was assessed in violation of title 11 of the United States Code (the Bankruptcy Code), the appealing party must provide the following:

      (1) The identity of the court and the district in which the bankruptcy petition was filed; and

      (2) The docket number and the date of filing of the bankruptcy petition.

      (3) Time. An administrative appeal of the erroneous filing of notice of federal tax lien shall be made within 1 year after the taxpayer becomes aware of the erroneously filed tax lien.

       

      (e) Proof of full payment. As used in paragraph (d)(2)(iii) of this section, the term “proof of full payment” means:

       

      (1) An internal revenue cashier's receipt reflecting full payment of the tax liability in question prior to the date the federal tax lien issue was filed;

      (2) A canceled check to the Internal Revenue Service in an amount which was sufficient to satisfy the tax liability for which release is being sought; or

      (3) Any other manner of proof acceptable to the district director.

       

      (f) Exclusive remedy. The appeal established by section 6326 of the Internal Revenue Code and by this section shall be the exclusive administrative remedy with respect to the erroneous filing of a notice of federal tax lien.

       

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    • Michael
      ... When did 6343[j] exist, prior to your search? I checked Title 26 from between 1988 to date, and there was no such 6343[j]. You are correct. I went in my
      Message 2 of 2 , Jun 14, 2012
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        --- In tips_and_tricks@yahoogroups.com, "Legalbear" <bear@...> wrote:
        >
        > I just went looking for 26 USC § 6343(j) on withdraw the
        > Lien and notify the creditors and it's gone. Currently, §
        > 6343 deals entirely with releasing levies.

        When did 6343[j] exist, prior to your search?
        I checked Title 26 from between 1988 to date,
        and there was no such 6343[j].

        You are correct. I went in my Lien Thumper package to check whether I remembered the statute correctly because I noticed the same thing. Sure enough; at 26 USC § 6323(j) is what I remembered:

        (j) Withdrawal of notice in certain circumstances

        (1) In general
        The Secretary may withdraw a notice of a lien filed under this section and this chapter shall be applied as if the withdrawn notice had not been filed, if the Secretary determines that—
        (A) the filing of such notice was premature or otherwise not in accordance with administrative procedures of the Secretary,
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