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Brenda
reviewed this web page and here is
what she had to say:
26
U.S.C. § 7432. Civil damages for failure
to release lien says:
(a)
In general If any officer
or employee of the Internal Revenue
Service knowingly, or by reason of
negligence, fails to release a lien
under section 6325 on property of
the taxpayer, such taxpayer may bring
a civil action for damages against
the United
States
in a district court of the United
States.
26
U.S.C. § 6325. Release of lien or
discharge of property:
(a)
Release of lien Subject to such regulations
as the Secretary may prescribe, the
Secretary shall issue a certificate
of release of any lien imposed with
respect to any internal revenue tax
not later than 30 days after the day
on which - (1) Liability satisfied
or unenforceable The Secretary finds
that the liability for the amount
assessed, together with all interest
in respect thereof, has been fully
satisfied or has become
legally unenforceable;
The
regulations that the Secretary has
prescribed are 26 C.F.R. § 301.6325-1
Release of lien or discharge of property:
(a)
Release of lien -- (1) Liability satisfied
or unenforceable. Any district director
may issue a certificate of release
of a lien imposed with respect to
any internal revenue tax, whenever
he finds that the entire liability
for the tax has…become unenforceable
as a matter of law (and
not merely uncollectible or unenforceable
as a matter of fact).
In
In re Isom, No. 87-2189 (9th Cir.
1988) a United States Bankruptcy Appellate
Panel held that, “…there are clearly
other methods that a liability might
become legally
unenforceable.”
In
a treasury
Inspector General for Tax Administration
memorandum two Deputy Inspector
Generals for Audit stated, “…CFf staff
are not always filing liens in accordance
with Internal Revenue Manual (IRM)
guidelines and are interpreting national
policies in a variety of ways.” Also
they said, “…the IRS should develop
a more uniform lien filing policy
that will better protect the Government’s
interest…” I interpret that to mean,
and I would think that you would too,
that the IRS is making mistakes throughout
their lien filing process; you just
need the knowledge to recognize what
those mistakes are enabling you to
get your lien removed.
A
Federal Appellate Court made it clear
that to get your lien removed under
26 U.S.C. § 7432 you must first go
through the requirements of 26 U.S.C.
§ 6325 when it said, “Section 7432
amounts to a limited waiver of sovereign
immunity for civil damages actions
for failure to release a federal tax
lien upon notice under I.R.C. § 6325;
...Plaintiff has not shown that he
has given notice in accordance with
§ 6325.” Overton v. United
States,
925 F.2d 1282 (10th Cir. 1991). We
are supposed to learn from Mr. Overton’s
mistake and give notice in accordance
with § 6325 before taking any other
action.
So,
you need to write a letter to the
Area Director (who used to be called
the District Director) utilizing both
26 U.S.C. § 6325, 26 CFR § 401.6325–1
and 26 C.F.R. § 301.6325 and prove
that the lien on your property is
“legally unenforceable.” To write
an effective letter you will first
need information from the I.R.S. You
will get that information with:
These
“Killer FOIA's” are called this because
this package contains requests for
forms the IRS is supposed to have
before they embark on collection activities,
but probably do not have; very embarrassing
for them. This “Killer FOIA” package
contains the following:
First,
you’ll get a request for a 23c form
supported by enough exhibits making
it plain that you will not settle
for anything less than a 23c. The
IRS has been responding to FOIA (Freedom
of Information Act) requests for a
23c by trying to substitute a RAACS
Reports or a 4340 Form. The reason
they try and do that is because they
do not in all likelihood have a 23c
form filled out and signed for you
and up until 2002 their Internal Revenue
Manual required them to before they
could move forward with attempts to
collect. With this package you will
receive digital exhibits that go with
this FOIA that are numerous. In these
exhibits are copies of the internal
instructions to the disclosure officer
about what to do to cover up the fact
that the 23c requirement has not been
met. A lien cannot possibly be valid
without a valid assessment. If your
file is typical, there is no valid
assessment providing you with your
first good administrative issue for
you letter respecting why the lien
is “legally unenforceable.”
Secondly,
you’ll get a request, supported by
exhibits, for a Non-Master File Assessment
Voucher. Without this voucher they
cannot pursue collection of penalties
and interest from you. They probably
do not have one. Most notice of liens
include penalties and interest in
the amount of the lien and sometimes
these penalties and interest can be
substantial as a lot of you know.
Thirdly,
you’ll get a request for a Notice
of Assessment supported by exhibits.
The statute requires them to provide
you with a copy if you request it;
how comical if they are pursuing collections
on you via a notice of lien without
one because their own IRM says, “The
Assessment Certificate is the legal
document that permits collection activity.”
This could turn out to be a great
issue for your letter; especially
if it is backed up by a certification
by the disclosure officer as an exhibit
that no record exists.
Fourthly,
Federal Regulations require the District
Director to appoint Assessment Officers
that are qualified to sign the above
millions and millions of forms for
American Taxpayers. The fourth “killer”
request is for the names of the Assessment
Officers appointed by the Director
for the years in question. Can they
tell you those? Probably not; assessment
officers probably don’t exist in sufficient
numbers that one actually worked on
your case. Do they want to tell you
those names? Probably not. Each of
these requests include a request for
a certification that the record does
not exist that you can use in court
if need be.
Fifth,
you’ll get a FOIA request asking for
Form 668-F, Notice of Federal Tax
Lien under Internal Revenue Laws,
Part 2, signed by an authorized IRS
officer certifying that “Demand for
payment of this liability has been
made, but it remains unpaid.” Do they
have one of these for you; probably
not. You’ll have one more good issue
for your letter.
Sixth,
you’ll get a FOIA request asking for
a copy of the certified amount that
you owe on the proper IRS form used
for the certification process pursuant
to 26 C.F.R. § 301.6305-1(b)(4)(ii)
supported by an exhibit. That could
be another good issue for your letter.
And
lastly, you’ll get a FOIA request
for all the files being maintained
in the “Integrated Collection System”
maintained by the IRS about you pertaining
to liens. Who knows what you’ll find
in there; there could be some really
good stuff.
I
suggest that you send one of the above
FOIAs per
week to avoid copying charges by the
disclosure officer. Send these FOIAs, get back the responses; review 26 U.S.C. § 6325 and
26 C.F.R. § 301.6325 that are included
as part of this package. Also review
26 CFR § 401.6325–1(f) to be sure
that your request for a certificate
of release with respect to a notice
of Federal tax lien includes everything
it is required to. Plus, review the
ten published cases respecting these
statutes that are included in this
package and you are ready to write
your § 6325 letter.
I
am of the opinion that this will not
work unless your letter sounds like
you know what you are doing. The only
way to do that is to sit and read
all of the cases, statutes, and regs
that are part of the package. It is
important that each person do this
because when the letter reaches the
Area Director's office he is already
going to know which arguments are
valid and which ones are not. The
Area Director/District Director is
not going to declare your lien “legally
unenforceable” unless your letter
is credible. This is the reason I
keep checking the case law and try
to stay current. He is going to know
what the courts have done most recently
and so should we. If your letter contains
arguments that are not valid it will
not be credible nor will it be effective.
Send
the letter in and wait for your response.
If the Area Director denies your demand
letter to remove your lien, it is
not proof that your issues are not
valid you are simply on to the next
step. You have complied with what
is known in law as “condition precedent.”
If you don’t do first things first,
you will not like the results. Next
step:
After
you’ve gotten a negative response
to your demand that the IRS remove
the lien, you may be asking, what
will I do next? I spent a lot of hours
over a several month period finding
the answer to that question. I reviewed
a lot of cases over that time and
eventually came across some cases
where judges explained the remedy;
26 USC § 7432. In summary, the Tax
Payer’s Bill of Rights waived the
United
States
sovereign immunity and made it possible
to sue for their refusal to remove
“legally unenforceable” liens because
of the filing of them without following
procedure such as the above FOIAs
will expose. 26 CFR § 301.7432-1 requires
that:
(e)
No civil action in federal district
court prior to filing an administrative
claim—(1) Except as provided in
paragraph (e)(2) of this section,
no action under paragraph (a) of this
section shall be maintained in any
federal district court before the
earlier of the following dates:
(i)
The date a decision is rendered on
a claim filed in accordance with paragraph
(f) of this section; or
(ii)
The date 30 days after the date an
administrative claim is filed in accordance
with paragraph (f) of this section.
(2)
If an administrative claim is filed
in accordance with paragraph (f) of
this section during the last 30 days
of the period of limitations described
in paragraph (i) of this section,
the taxpayer may file an action in
federal district court anytime after
the administrative claim is filed
and before the expiration of the period
of limitations, without waiting for
30 days to expire or for a decision
to be rendered on the claim.
26 U.S.C. §
7432(d) provides:
Limitations
(1) Requirement that administrative
remedies be exhausted A judgment for
damages shall not be awarded under
subsection (b) unless the court determines
that the plaintiff has exhausted the
administrative remedies available
to such plaintiff within the Internal
Revenue Service.
Can
you see what they are doing? They
want you to send in your administrative
letter and give them an opportunity
to prevent you from suing them. What
you would hope that means, and what
is likely to occur, is that the lien
will be removed without you ever having
to go to court!
26
CFR § 301.7432-1(f) requires that
you send your letter to the Chief
of Special Operations function in
the District Director’s Office. This
guy has the ability, based on a well
worded letter complying with the statutes
and regulations, to call off the dogs
so to speak. Heck, he can even award
you damages if your letter is good
enough (yeah right). Anyway, now there
is somebody that will actually read
your correspondence that has the power
to do something other than file it.
My first letter based on § 7432’s
sister statute § 7433 (which works
on almost exactly the same process
as § 7432) caused the IRS to withdraw
one levy and not to execute on a second
that they had threatened. A friend
that used this process mentioned in
passing that after sending in his
letter his next Social Security check
was for the full amount. Of course,
if you hadn’t guessed already, those
letters both threatened to sue.
Who
could ever imagine that curtailing
IRS collection activity could be as
simple as sending a well worded, authoritative
letter to the person that has the
power and authority to stop illegal
tax collection activity? In the treasury
Inspector General for Tax Administration
memorandum linked to above the two
Deputy Inspector Generals for Audit
state, “With its current processes,
the IRS does not have enough resources
to resolve all the balance due accounts
in its inventory. To deal with this,
years ago the IRS created the Queue
to hold cases for future assignment
to revenue officers who make personal
contact with taxpayers. The collection
potential of each delinquent account
is prioritized by computer as high,
medium, or low risk, based on case
type, amount, and skills required
to work the case. Accounts meeting
certain criteria are immediately assigned
to revenue officers, while others
are assigned from the Queue to revenue
officers as workload permits, based
on their assigned priority.” Not only
is the IRS in this situation, so is
the U.S. Attorneys’ office. It is
this overbearing workload on both
to their parts that works in your
favor when using this process; they
don’t want anymore lawsuits! This
concept makes it a very strong likelihood
that you’ll win while you are exhausting
your administrative remedies.
There
are probably many unpublished wins
that we’ll never hear about that were
taken care of administratively. If
you would like your letter to carry
some weight and to succeed, the Chief
of Special Operations must find your
letter threatening to sue informed
and credible. The way you can accomplish
this is by studying. This package
includes the seven FOIAs mentioned
above and their accompanying exhibits.
Plus, I collected together thirty-nine
published decisions on § 7432, ten
cases on § 6325, the applicable regulations
including 26 CFR § 401.6325–1 on where
to send your first demand for Release
of liens, and the statutes themselves
and have packaged that together with
the letter I wrote that was successful
on using the sister statutes § 7433.
The letter I wrote is not a boilerplate
letter that you can just put your
name at the top of. You have to use
it as a model for your own unique
letter. It doesn’t discuss any of
the above KILLER FOIA's at all. Numerous
people have already used this process
to successfully remove levies and
there is every reason to believe that
it will work equally as well on bogus
Notices of Lien.
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