Thursday, October 25, 2007

IRS tax levy - section 6632 enforcement penalty of 50%

United States of America, Plaintiff v. Moskowitz, Passman & Edelman, Defendant., U.S. District Court, So. Dist. N.Y.; 00-CV-3832 (RO), October 10, 2007.

[ Code Sec. 6331]

IRS levy: Partner's salary. --
A law firm was required to honor levies on an attorney's wages and salary, and a fine was imposed for the firm's failure to do so. The attorney's argument that checks written to him by the firm were not subject to the levies because they were only a draw, an advance or a loan, not income or salary, was rejected. The firm could not be exempted from honoring the levies because of the taxpayer's partner status and because the firm paid out monies as advances on future income to the partner as opposed to terming the payments wages.

[ Code Sec. 6332]

IRS levy: Surrender of property: Reasonable cause: Penalty for failure to surrender. –

A 50-percent penalty was imposed on a law firm under Code Sec. 6332(d) for its failure to honor levies on an attorney's wages and salary. Since the firm failed to create a bona fide dispute over either the amount that the firm owed to the partner or the legal effectiveness of the levies, it failed to show a reasonable cause for its failure to surrender the levied property. Back reference: ¶38,198.197.



OWEN, District Judge: Before me are the government's and Moskowitz, Passman & Edelman's cross Motions for Summary Judgment.

The facts of this case are not in dispute. A. Sheldon Edelman, Esq., is an attorney and the senior of the two partners of defendant law firm Moskowitz, Passman & Edelman ("MPE"). Attorney Edelman owes $1,224,157.74 in unpaid income taxes, a debt memorialized in a January 2004 Stipulation for Judgment and a subsequent Judgment against him. The Judgment is based on his unpaid federal income tax liabilities for the years 1990-1994, 1996, 1998-2001.

Over 1996 and 1997, his law firm, MPE, was served with two levies (Form 668-W(c) and Form 668-A(c)) and two Final Demand Letters (Form 668(c)). 1 The 1996 levy stated that it applied to: "(1) This taxpayer's wages and salary that have been earned but not paid yet, as well as wages and salary earned in the future until this levy is released, and (2) this taxpayer's other income that you have now or for which you are obligated." MPE neither honored the levies, nor filed a wrongful levy action. On the contrary, Mr. Edelman, who handled the books for the firm, wrote himself and his junior partner Motelson checks from whatever was available in MPE's bank accounts, frequently on a weekly basis. Mr. Edelman stated at his deposition that these checks in varying amounts were rough advances to each of them against the total income and firm profits they were due to receive from the partnership in a given year, and principally motivated by Motelson's continuing needs, 2 no issue being presented as to the bona fides of any of these advances.

Summary judgment should be granted when "there is no genuine issue as to any material fact... and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Internal Revenue Code provides that, to satisfy a tax judgment, the IRS may impose a lien on any "property" or "rights to property" belonging to a taxpayer. See 26 U.S.C. § 6321; Drye v. United States, 528 U.S. 49, 55 (1999). The lien can attach "to an individual partner's interest in [a] partnership, that is, to the fair market value of his or her share in the partnership assets." United States v. Craft, 535 U.S. 274, 286 (2002). As the holder of the lien, the IRS is "entitled to 'receive... the profits to which the assigning partner would otherwise be entitled.'" Id. If a taxpayer refuses to honor a lien, and pay its tax liabilities, the IRS may levy upon "all property and rights to property" of the delinquent taxpayer. 26 U.S.C. § 6331(a). The Supreme Court has repeatedly observed that the language in Sections 6321 and 6331 is broad and reveals on its face that Congress "meant to reach every interest in property that a taxpayer might have." Drye, 528 U.S. at 56. "When Congress so broadly uses the term 'property,' we recognize... that the Legislature aims to reach 'every species of right or interest protected by law and having an exchangeable value.'" Id.

Mr. Edelman contends that the above described checks were not subject to the levies against the firm because they were as he testified a "draw or an advance or a loan against what is ultimately converted to income at the end of the year." However, calling it a draw or an advance instead of income or salary is insufficient to except it from the levies' ambit. See United States v. Jefferson-Pilot Life Ins. Co., 49 F.2d 1020, 1022 (4 th Cir. 1995) (holding that IRS levies apply to commissions earned by an independent contractor, although such earnings are not a traditional salary); see also United States v. Has, Inc., No 87-1644CC, 1990 WL 54826 at *2 (D. Puerto Rico, Feb. 21, 1990) (holding that an employer may not avoid a levy on its employee's wages by advancing the employee the salary it will later owe the employee).

While Mr. Edelman points out that the government cannot cite a case where it has applied this collection device to a partner's draw from a partnership, I note that neither does he cite a case where a court has refused to permit it. Keeping in mind the spirit of the law, the fact that monies are paid out to the partners frequently weekly as advances on future income cannot exempt the law firm from the statute by virtue of Edelman's partner status.

Section 6332(d)(2) of the Internal Revenue Code imposes an additional punishment of fifty percent on an entity failing to honor a levy if there was no "reasonable cause" for failing to surrender property to the United States that is subject to the levy. See 26 U.S.C. § 6332(d)(2); Celauro v. I.R.S., 411 F. Supp. 2d 257, 265-66 (E.D.N.Y. 2006).

In this context, reasonable cause means a "bona fide dispute over the amount owing to the taxpayer (by the property holder) or over the legal effectiveness of the levy itself." Sterling National Bank, 494 F.2d 919, 923 (2d Cir. 1974). MPE has not created a "bona fide" dispute over either the amount the firm owes Mr. Edelman or the legal effectiveness of the levies. As set forth in his deposition as a witness on behalf of MPE, see supra n.2, Mr. Edelman testified that based upon oral agreement with the firm's other partner, Motelson, his share of the annual profits is 60%. I find that there was no reasonable cause for MPE's failure to surrender any property subject to the levies, and I therefore also impose the fifty percent statutory penalty here yet to be established.

The government's Motion for Summary Judgment is granted 3 as is its request for imposition of the fifty percent statutory penalty.

Submit order on notice.


6332(d)(1) EXTENT OF PERSONAL LIABILITY. --Any person who fails or refuses to surrender any property or rights to property, subject to levy, upon demand by the Secretary, shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of taxes for the collection of which such levy has been made, together with costs and interest on such sum at the underpayment rate established under section 6621 from the date of such levy (or, in the case of a levy described in section 6331(d)(3), from the date such person would otherwise have been obligated to pay over such amounts to the taxpayer). Any amount (other than costs) recovered under this paragraph shall be credited against the tax liability for the collection of which levy was made.

6332(d)(2) PENALTY FOR VIOLATION. --In addition to the personal liability imposed by paragraph (1), if any person required to surrender property or rights to property fails or refuses to surrender such property or rights to property without reasonable cause, such person shall be liable for a penalty equal to 50 percent of the amount recoverable under paragraph (1). No part of such penalty shall be credited against the tax liability for the collection of which such levy was made.

6332(e) EFFECT OF HONORING LEVY. --Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made who, upon demand by the Secretary, surrenders such property or rights to property (or discharges such obligation) to the Secretary (or who pays a liability under subsection (d)(1)) shall be discharged from any obligation or liability to the delinquent taxpayer and any other person with respect to such property or rights to property arising from such surrender or payment.

6332(f) PERSON DEFINED. --The term "person," as used in subsection (a), includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to surrender the property or rights to property, or to discharge the obligation.
Penalty for Failure to Surrender Property: Levy and demand

Failure of the government to levy upon funds in the hands of a trustee for the benefit of a taxpayer's creditors precludes it from collecting excise taxes owed by the taxpayer.

O'Dell, CA-6, 47-1 USTC ¶9190, 160 F2d 304.

Similarly, as to funds held by a creditor.

Princess Anne Speedway, Inc., DC, 54-2 USTC ¶9627.

To reduce its claims to "possession", the government did not need to serve "warrants of distraint" in addition to its notices of levy.

J.M. Rosenblum, CA-1, 62-1 USTC ¶9384, 300 F2d 843.

The author of a book entitled How Anyone Can Stop Paying Income Taxes was unable to overturn a levy by frivolously arguing that the IRS had only used a notice of levy instead of a so-called "Levy" form.

I. Schiff, CA-2, 86-1 USTC ¶9204, 780 F2d 210.

A corporation which owed a fee to a delinquent taxpayer and had been served with warrants of distraint and levy for unpaid taxes was held to be indebted to the United States for the amount of the delinquent's unpaid taxes plus interest.

Electriglas Corp., DC, 58-1 USTC ¶9167.

A corporation which owed the delinquent taxpayer certain sums on its purchase of letters patent and had been served with notices of levy for taxpayer's unpaid taxes was held to be indebted to the United States in the amount due taxpayer at the time of service of levies plus interest.

Wolf Cereal Processing Co., DC, 67-1 USTC ¶9111.

The United States recovered from a bank on the grounds that the money belonged to a taxpayer and that levy and demand had been made.

Wilson Industrial Bank, DC, 47-1 USTC ¶9199.

The levy by the United States against a secured debt owing to the taxpayer, rather than against the security itself, was valid and allowable in bankruptcy where the levy was made against the taxpayer's debtor before he became bankrupt.

Cal-Neva Lodge, Inc., DC, 60-2 USTC ¶9563, 186 FSupp 187.

Where the stipulation of facts before the District Court was insufficient to show whether the conditions of an effective levy and distraint were met, the matter was remanded to the referee for rehearing.

J.W. Holdsworth, DC, 53-2 USTC ¶9589, 113 FSupp 878.

The IRS was entitled to funds in the possession of the bankruptcy trustee that were owed to the bankrupt's spouse, because the spouse was not entitled to notice of the levy or service of the motion. The court held that the spouse was not an appropriate party and had no standing to challenge the levy. It was therefore not necessary to give her notice of the motion directing compliance with the levy.

J.A. Samson, DC S.C., 89-1 USTC ¶9314, 100 BR 800.

The trustee of a debtor's estate could not sue the United States under Code Sec. 6332 to collect a portion of money and property that was seized by the IRS from an oil company that owed the debtor $75,000. The United States did not waive its sovereign immunity to such claim. The exclusive remedy available against the United States is a wrongful levy action under Code Sec. 7426.

Frederick Petroleum Corp., BC-DC Ohio, 92-2 USTC ¶50,362.

To comply with an IRS administrative levy, a corporation was ordered to pay its debt under a purchase money mortgage to the government, not to a federal district court clerk. The corporation's concern that its payment of the mortgage debt to the IRS would lead to disputes between theovernment and the property's seller regarding the disposition of funds was misplaced. The government did not automatically gain ownership of the property as the result of the levy; rather, the levy protected it against diversion or loss while any claims were being resolved. On payment of its obligations under the levy, the corporation was protected from any further liability to the seller under the mortgage.,

K.A. Fellenz, DC N.J., 2006-2 USTC ¶50,401.

Alvin S. Brown
Tax Attorney
703 425-1400

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