Wednesday, March 23, 2011
Section 6323(j) (1) provides the general rule that the if the IRS withdraws a NFTL, the NFTL will be treated as if the withdrawn notice had not been filed, if the Secretary determines that— (A) the filing of such notice was premature or otherwise not in accordance with administrative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, (B) the taxpayer has entered into an agreement under section 6159 to satisfy the tax liability for which the lien was imposed by means of installment payments, unless such agreement provides otherwise, (C) the withdrawal of such notice will facilitate the collection of the tax liability, or (D) with the consent of the taxpayer or the National Taxpayer Advocate, the withdrawal of such notice would be in the best interests of the taxpayer (as determined by the National Taxpayer Advocate) and the United States. Section 6323(j)(1) is permissive. Although section 6323(j)(1) allows the Commissioner to withdraw the NFTL for any of the listed reasons, it does not require him to do so . The IRS Internal Revenue Manual requires the filing of a tax lien for tax assessment balances of $5,000 or more and states that the tax lien should filed even if the tax balance is less than $5,000 if the filing of the tax lien will promote payment compliance . The tax lien will not be released until the tax debt is paid or otherwise discharged. The IRS recently published IR-2011.20 on February 24, 2011, centering on important changes to its lien filing practices that will lessen the negative impact on taxpayers. The changes include: • Significantly increasing the dollar threshold when liens are generally issued, resulting in fewer tax liens. • Making it easier for taxpayers to obtain lien withdrawals after paying a tax bill. • Withdrawing liens in most cases where a taxpayer enters into a Direct Debit Installment Agreement. • Creating easier access to Installment Agreements for more struggling small businesses. • Expanding a streamlined Offer in Compromise program to cover more taxpayers. The IRS will significantly increase the dollar thresholds when liens are generally filed. The new dollar amount is in keeping with inflationary changes since the number was last revised. Currently, liens are automatically filed at certain dollar levels for people with past-due balances. The IRS plans to review the results and impact of the lien threshold change in about a year. The IRS will also modify its current procedures to make it easier for taxpayers to obtain lien withdrawals. Liens will now be withdrawn once full payment of taxes is made if the taxpayer requests it. The IRS has determined that this approach is in the best interest of the government. In order to speed the withdrawal process, the IRS will also streamline its internal procedures to allow collection personnel to withdraw the liens. The IRS is making other fundamental changes to liens in cases where taxpayers enter into a Direct Debit Installment Agreement (DDIA). For taxpayers with unpaid assessments of $25,000 or less, the IRS will now allow lien withdrawals under several scenarios: • Lien withdrawals for taxpayers entering into a Direct Debit Installment Agreement. The IRS will withdraw a lien if a taxpayer on a regular Installment Agreement converts to a Direct Debit Installment Agreement. • The IRS will also withdraw liens on existing Direct Debit Installment agreements upon taxpayer request. Liens will be withdrawn after a probationary period demonstrating that direct debit payments will be honored. The policy of the IRS to file mandatory tax liens in all cases above the current $5,000 is the only part of the tax lien change that is misguided because it makes the filing of an NFTL mandatory when that threshold for filing an NFTL is met. The language drafted by Congress under section 6321 crates an unperfected lien, and not one that requires that the tax lien be perfected by a filing of the tax lien in the public records. When the IRS created a mandatory filing of tax liens in the public records in its Manual, and now supported by IR-2011-20, it converted a discretionary power to a mandatory rule that is in conflict with the intent of Congress. In the case of a consulting or other service business (e.g., the mortgage loan industry) with no significant assets relative to the tax debt, the tax lien will destroy credit, result in the disqualification of mortgage loan originators, destroy businesses, and correspondingly reduce the collection of tax revenue. This abuse of power is form of misconduct, because the IRS is transmuting a discretionary tax lien statute into a mandatory tax lien statue. As noted in IR-2011-20, the IRS will always file a tax lien in all cases where the tax debt reaches a yet unannounced threshold. The application to request a tax lien withdrawal if on Form 12277 (Rev. August 2005) Application for Withdrawal of Filed Notice of Federal Tax lien (as based on Internal Revenue Code Section 6323(j). http://www.irs.gov/pub/irs-pdf/f12277.pdf. As indicated in IR-2011-20, a tax lien can be facilitated in the context of an Installment Agreement.