Russell T.
Pamela T.
Monroe, NC 28110-6344
Ms. Marie Maple
IRS
2303 W. Meadowview Rd.
Suite 100B
Greensboro, NC 27407
Dear Ms. Maple:
You sent me a Notice of Jeopardy Levy and Right of Appeal dated August 13, 2009. This stated that I am entitled to a collection due process hearing with the IRS Office of Appeals.
Within the 30 day window, I filed my CDPH Request Form 12153 as you instructed in your letter. This letter is to supplement my CDPH Request. Prior to now, you levied our bank account for approximately $61,000 after a jeopardy assessment.
IRC 6331 is the levy and destraint statue. The last sentence in section (a) provides:
If the Secretary makes a finding that the collection of such tax is in jeopardy, notice and demand for immediate payment of such tax may be made by the Secretary and, upon failure or refusal to pay such tax, collection thereof by levy shall be lawful without regard to the 10-day period provided in this section.
However the levy is subject to the following requirements:
(d) Requirement of notice before levy
(1) In general
Levy may be made under subsection (a) upon the salary or wages or other property of any person with respect to any unpaid tax only after the Secretary has notified such person in writing of his intention to make such levy.
(2) 30-day requirement
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 to such person’s last known address, no less than 30 days before the day of the levy.
(3) Jeopardy
Paragraph (1) shall not apply to a levy if the Secretary has made a finding under the last sentence of subsection (a) that the collection of tax is in jeopardy.
Note that the law provides for a waiver of the 30 day or the 10 day waiting period after the notice is issued. However, the Notice requirement is not waived and no notice was issued.
The collection law clearly mandates that the Notice and Demand Letter be sent. Then the levy can take place in 30 or 10 days except in jeopardy assessments when the levy can proceed immediately. However, the notice and demand letter still must be issued.
Since the notice and demand letter was not issued, the levy is invalid. Therefore the levy should be cancelled and the monies seized be returned to the taxpayer.
Further, the law provides in 6331:
(1) Offer-in-compromise pending
No levy may be made under subsection (a) on the property or rights to property of any person with respect to any unpaid tax -
(A) During the period that an offer-in-compromise by such person under section 7122 of such unpaid tax is pending with the Secretary; and of this subsection.
Taxpayers intend to file an OIC and no levy can be issued while that is pending as provided by above statute.
Yours,
______________________________ September 24, 2009 Russell T. ______________________________ Pamela T.