The Art of IRS Collection Defense in a Post-COVID 19 World

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Jason B. Freeman

Jason B. Freeman

Managing Member


Mr. Freeman is the founding member of Freeman Law, PLLC. He is a dual-credentialed attorney-CPA, author, law professor, and trial attorney.

Mr. Freeman has been named by Chambers & Partners as among the leading tax and litigation attorneys in the United States and to U.S. News and World Report’s Best Lawyers in America list. He is a former recipient of the American Bar Association’s “On the Rise – Top 40 Young Lawyers” in America award. Mr. Freeman was named the “Leading Tax Controversy Litigation Attorney of the Year” for the State of Texas for 2019 and 2020 by AI.

Mr. Freeman has been recognized multiple times by D Magazine, a D Magazine Partner service, as one of the Best Lawyers in Dallas, and as a Super Lawyer by Super Lawyers, a Thomson Reuters service. He has previously been recognized by Super Lawyers as a Top 100 Up-And-Coming Attorney in Texas.

Mr. Freeman currently serves as the chairman of the Texas Society of CPAs (TXCPA). He is a former chairman of the Dallas Society of CPAs (TXCPA-Dallas). Mr. Freeman also served multiple terms as the President of the North Texas chapter of the American Academy of Attorney-CPAs. He has been previously recognized as the Young CPA of the Year in the State of Texas (an award given to only one CPA in the state of Texas under 40).

Earlier this year, the novel coronavirus (COVID-19) disease spread throughout the United States.  On March 11, 2020, the World Health Organization (WHO) officially labeled it a pandemic.  Shortly thereafter, President Trump issued an executive order also labeling it a “national emergency.”  What followed was a series of historical stimulus packages passed by Congress totaling approximately $3 trillion to combat the financial chaos tied to nationwide shelter-in-place and business closure orders.

Regrettably, the economic stimulus provisions will likely not be enough to stave off financial collapse for many Americans.  For many small business owners, they have forever lost the opportunity to otherwise generate income they would have generated absent the pandemic.  Moreover, employees are not immune to the financial crisis.  Each week, more and more Americans continue to file for unemployment.

But, there may be a glimmer of hope for some taxpayers who currently owe the IRS large tax debts.  Specifically, on March 25, 2020, the IRS rolled out its new “People First Initiative,” which promises a kinder, more gentle IRS.  Although only time will tell when the COVID-19 pandemic passes, taxpayers not in compliance with their tax obligations should consider resolving their tax debts now rather than later.

Because many of the collection defenses available to taxpayers depend largely in part on the taxpayer’s specific financial condition, taxpayers who have experienced significant adverse financial effects from the COVID-19 pandemic may have a limited window of time to resolve their tax debts more favorably with the IRS than what they may have to otherwise do after the COVID-19 pandemic subsides.  This Insight provides a brief overview of the IRS’ chief collection tools:  the federal tax lien and the federal tax levy.  In addition, it provides insights into how taxpayers may defend against these collection tools in light of the COVID-19 pandemic.

In addition, readers may find useful other Freeman Law Insights relevant to the COVID-19 pandemic and IRS collection procedures in general, which include:  Help For Existing Chapter 13 Debtors During COVID-19; Everything that You Need to Know about IRS Offers in Compromise; Freeman Law’s Compendium of Recent Coronavirus Legislation and Regulatory Reform; IRS Seizures:  The Good, the Bad, and the Ugly; A Fresh Start for Many?  Economic Downturn Means an Upturn in Favorable Tax Settlements.

I.  The Federal Tax Lien

A.  Generally

Although not as powerful as the levy, the federal tax lien (and accompanying Notice of Federal Tax Lien) can wreak havoc on taxpayers.  In many cases, the NFTL can result in an inability for small businesses to obtain credit.  For individual taxpayers, the NFTL can significantly delay or completely stop transactions, such as a real estate closing.

Generally, the federal tax lien arises after an assessment has been made against the taxpayer, and the IRS has provided the taxpayer with notice of the assessed amount and demand for payment.  I.R.C. § 6303(a).  If the taxpayer fails to pay the amount due, the federal tax lien arises by operation of law.  I.R.C. § 6321.  Because the tax lien is not public record at this time, many people refer to it as the “silent lien” or the “secret lien.”

The federal tax lien attaches to “all property and rights to property, whether real or personal.”  I.R.C. § 6321.  Moreover, the tax lien relates back and attaches to property belonging to the taxpayer as of the date of the assessment.  I.R.C. § 6322.  It also attaches to any property or property rights acquired by the taxpayer after the lien arises.  See Glass City Bank v. U.S., 326 U.S. 265 (1945).  In addition, the federal tax lien attaches to any property substituted for what the taxpayer once owned, provided the chain of substitution can be adequately traced.  Mun. Trust & Sav. Bank v. U.S., 114 F.3d 99 (7th Cir. 1997).  In other words, the scope of the federal tax lien is very broad.

Although state law determines the taxpayer’s property and property rights for which the lien attaches, Acquilino v. U.S., 363 U.S. 509 (1960), state laws that provide creditor rights do not affect the federal tax lien, see U.S. v. Rodgers, 461 U.S. 677 (1983) (concluding that federal tax lien was not affected by state homestead laws).  In other words, “although the definition of underlying property interests is left to state law, the consequences that attach to those interests is a matter left to federal law.”  Id. at 682; see also U.S. v. Davis, No. 5:12-cv-01602 (W.D. La. Sept. 24, 2015) (holding that IRS may seize and sell property where the tax debt occurred during community property marriage irrespective of taxpayer’s death and state intestacy laws).

Notwithstanding its extensive reach, the federal tax lien itself provides little protection to the IRS against other third parties until a Notice of Federal Tax Lien (NFTL) is filed with the appropriate governmental authority.  I.R.C. § 6323.  For example, third parties such as subsequent purchasers, holders of security interests, judgment creditors, or holders of mechanic’s liens have prioritized interests in the taxpayer’s property in the event an NFTL has not been filed.  Id.  Accordingly, the IRS routinely files an NFTL to provide notice to these classes of creditors and also protect its interest in the property under the common law and statutory rules of “first-in-time, first-in-right.”

For real property, the IRS must file the NFTL in the office within the state, county, or other governmental subdivision as designated by state law in which the property subject to the lien is physically located.  Treas. Reg. § 301.6323(f)-1(a)(1)(i).  For personal property, the IRS must file the NFTL in the office within the state, county, or other governmental subdivision as designated by state law in which property subject to the lien is physically located.  Treas. Reg. § 301.6323(f)-1(a)(1)(ii).  Generally, personal property – whether tangible or not – is deemed to be located in the state where the taxpayer resides at the time the lien notice is filed.  Id.

During my representation of various clients, a common question I receive is whether the IRS files the NFTL in all instances.  The answer is “no.”  Rather, the Internal Revenue Manual (IRM) directs IRS collection personnel to make an independent decision as to whether to file an NFTL.  IRM pt. (Oct. 14, 2013).  In making this determination, the IRS is instructed to review, among other things:  (1) the taxpayer’s compliance history; (2) whether the taxpayer meets an applicable NFTL filing exception; (3) whether the government’s interests are adequately protected (for example, in the event of a bankruptcy filing); and (4) whether the NFTL filing will hamper collection efforts.  IRM pt. (Oct. 14, 2013).

B.  Lien Defenses

1.  NFTL Filing Exceptions (Streamlined, Guaranteed, and In-Business Trust Fund Installment Agreements)

The IRS will generally file an NFTL if the aggregate unpaid balance of tax assessments totals $10,000 or more, and the taxpayer does not qualify for any of the IRS’ NFTL filing exceptions.   These exceptions include the taxpayer entering into a streamlined, guaranteed, or in-business trust fund installment agreement with the IRS and maintaining filing and payment compliance.  IRM pt. (Oct. 14, 2013).  The criteria for these exceptions can be found in IRM pt. 5.14.5 (Dec. 23, 2015).  Generally, this is the easiest defense against an NFTL filing; however, this defense will not apply where the tax debt is relatively large.  Moreover, taxpayers should be aware that even if they do qualify for the NFTL exceptions, the IRS has the discretion to file the NFTL if the filing protects its interests.

2.  Collection Due Process Hearing

Under federal tax law, the IRS is required to issue a Collection Due Process (CDP) hearing notice to the taxpayer after an NFTL has been filed.  I.R.C. § 6320.  After the taxpayer receives the CDP hearing notice, the taxpayer has 30 days to timely request a CDP hearing with the IRS Independent Office of Appeals (Appeals).  I.R.C. § 6330(a), (b).

During the CDP hearing with Appeals, the taxpayer can raise:  (1) appropriate spousal defenses, such as innocent spouse claims; (2) challenges to the appropriateness of the NFTL filing; and (3) offers of collection alternatives, which may include posting of bond, the substitution of other assets, an installment agreement, or an offer in compromise.  I.R.C. § 6330(c)(2).  In certain instances, the taxpayer can also challenge the existence or amount of the tax liability that arose and caused the NFTL filing, provided the taxpayer has not otherwise had an opportunity to do so. Generally, this means the taxpayer has not received a notice of deficiency, but there are other exceptions.

If the taxpayer has received a CDP hearing for an NFTL and has a pending case with Appeals, the taxpayer should give serious thought to raising any additional COVID-19 related issues during the CDP hearing process.  For example, there may be stronger circumstances now to argue that, in light of COVID-19, the NFTL is not appropriate.  Moreover, taxpayers may consider supplementing existing collection alternatives they proposed, and arguing for a lower installment agreement payment or offer in compromise amount.

There is little doubt that the most effective defense against an NFTL is the submission of an offer in compromise.  This is because if the offer in compromise is accepted, the taxpayer’s debts associated with the NFTL is deemed paid in full after the taxpayer satisfies the terms of the offer.  Taxpayers should note that they can submit an offer in compromise to the IRS at any time—that is, they are not limited to waiting for a CDP hearing, although there may be strategic reasons for waiting to file an offer in compromise if the taxpayer has not yet received a CDP hearing notice.

Currently, the IRS will compromise tax debts under one of three methods:  (1) doubt as to liability; (2) doubt as to collectability (OIC-DAC); and (3) to promote effective tax administration (OIC-ETA).  Treas. Reg. § 301.7122-1(b).  The first instance challenges the proper amount of the tax liability whereas the other two instances look at whether it is fair or possible to collect the full tax liability.  These latter two are discussed more below.


To determine whether to accept an OIC-DAC, the IRS reviews the financial information submitted by the taxpayer. Generally, the IRM instructs that the financial information should be as current as possible.  In the event a taxpayer submitted financial information to the IRS prior to COVID-19, the taxpayer should give serious thought to amending the financial information, particularly where the taxpayer has been significantly impacted.

Generally, assets are valued at “net realizable equity,” which is defined as the quick asset value (QSV) less certain debts. IRM pt. (Sept. 30, 2013).  Because the QSV is defined as “an estimate of the price a seller could get for the asset in a situation where financial pressures motivate the owner to sell in a short period of time (usually 90 calendar days or less),” the QSV is by definition less than fair market value.  IRM pt. (Sept. 30, 2013).  As a general matter, the QSV will be 80% of the fair market value; however, a higher or lower percentage may be applied where appropriate, depending on the type of asset and current market conditions.  IRM pt. (Sept. 30, 2013).  Accordingly, taxpayers affected by COVID-19 should consider, where appropriate, arguing that the QSV should be lower than 80%.

For OIC-DAC purposes, the IRS also looks to the taxpayer’s “future income,” which is defined as “an estimate of the taxpayer’s ability to pay based on an analysis of gross income, less necessary living expenses for a specified number of months into the future.”  I.R.M. pt. (March 23, 2018).  Generally, the number of months depends on the taxpayer’s proposed OIC-DAC payment schedule, if the OIC-DAC were accepted.  If the taxpayer’s OIC-DAC payments will be made in 5 months or less and 5 or fewer payments, the future income amount is limited to 12 months.  I.R.M. pt. (March 23, 2018).  However, if the taxpayer prefers a longer payment schedule (6 to 24 months), the future income amount is extended to 24 months.  Id.

Under the IRM, “as a general rule, the taxpayer’s current income should be used in the analysis of future ability to pay.” IRM pt. (March 23, 2018).  This includes circumstances in which the taxpayer’s income has been recently reduced based on a change in occupation or employment status.  Id.  However, in many cases, the IRS will average income from prior years to ascertain future income projection.

If the taxpayer is currently unemployed, the analysis becomes trickier.  For example, if the taxpayer is “long-term unemployed,” the IRM instructs the IRS not to income average.  Rather, the IRS is directed to use the taxpayer’s current income for the future income calculation unless there is a verified expectation that the taxpayer will secure employment in the future.  IRM pt. (March 23, 2018).  On the other hand, if the taxpayer is “temporarily or recently unemployed,” the IRM instructs the IRS to use the level of income expected if the taxpayer were fully employed and if the potential for future income is apparent.  IRM pt. (March 23, 2018).  Needless to say, if a taxpayer’s income has been affected by COVID-19, there will be many arguments back and forth between the IRS as to whether the taxpayer should be characterized as “long-term unemployed,” “temporarily or recently unemployed,” or alternatively, whether another income projection should be used.

Recognizing that it may be difficult or impossible in many circumstances to properly calculate the taxpayer’s anticipated future income, the IRM also instructs that it may be appropriate in some instances to use the taxpayer’s current income but secure a future income collateral agreement.  IRM pt. (Sept. 30, 2013).  For example, the IRM specifies that it may be necessary to obtain a future income collateral agreement where it is “reasonably expected that the taxpayer will be receiving a substantial increase in income.”  Id.

Under the future income collateral agreement, the taxpayer agrees to pay the IRS a certain percentage of his or her annual income when the income exceeds a specified amount in the future.  Significantly, this can include items not commonly associated with the tax term for income, such as gifts and inheritances.  Generally, the future income collateral agreement extends for the 5-year compliance period; however, the percentages and amounts at issue in a future income collateral agreement are typically negotiable between the taxpayer and IRS.  IRM pt. (10-4-17).

After the taxpayer’s future income is determined, the IRS will permit the taxpayer to claim certain expenses to offset the income.  IRM pt. (Oct. 22, 2010).  As a general matter, the IRS utilizes national and local standards as a guidepost for whether the taxpayer’s claimed expenses are reasonable and necessary.  Id.

Under the IRM, a necessary expense is one that is necessary for the production of income or for the health and welfare of the taxpayer and his or her family.  IRM pt. (Oct. 22, 2010).  Two of the more common necessary expenses include:

Food, Housekeeping Supplies, Clothing, Etc.  For this group of expenses, taxpayers may utilize the national standards based on their family size without the IRS questioning the amounts they spent.  IRM pt. (July 24, 2019).

Housing and Utilities.  This group of expenses accounts for mortgage or rent, property taxes, insurance, maintenance, repairs, gas, electric, and other utility bills.  IRM pt. (July 24, 2019).  Taxpayers may utilize the local standard or the amounts actually paid monthly for these expenses, whichever is less, unless they can show a permissible deviation.  Id.

Of course, there are a host of other additional expenses that may be permitted.  With any OIC-DAC, the underlying concept remains to determine the taxpayer’s “reasonable collection potential.”  In this regard, the Tax Court has noted that:

The RCP is a key concept in this corner of tax law, but it’s easy to understand:  A taxpayer’s RCP is the amount that the IRS thinks it can get from his assets and income.  The IRM explains in exhaustive detail how to calculate a taxpayer’s RCP, and while the process is complicated, its guiding principle and purpose are simple:  The Commissioner estimates how much he can collect by selling a taxpayer’s property and garnishing his income while allowing for certain necessary expenses.  We can even come up with a Hand formula: RCP > OIC = NO.  Though as always in tax law, there are some exceptions, and under some circumstances that ‘no’ can become a ‘yes.’

Alphson v. Comm’r, T.C. Memo. 2016-84.  In sum, taxpayers affected by COVID-19 should explore whether they qualify for a lower reasonable collection potential in light of their individual circumstances and the effects of COVID-19.

ii.  OIC-ETA

The distant kin of the OIC-DAC is the OIC-ETA.  If the taxpayer fails to qualify for an OIC-DAC (e.g., their reasonable collection potential exceeds the federal tax debts), the taxpayer may nevertheless qualify for an OIC-ETA.  See Treas. Reg. § 301.7122-1(b)(3).

Generally, the IRS will accept an OIC-ETA if the IRS determines that, although collection in full could be achieved, collection of the full tax debt would cause economic hardship.  Id.  In addition, even without economic hardship, the IRS may accept an OIC-ETA where compelling public policy or equitable considerations warrant relief.  Id.

Taxpayers can make OIC-ETAs during a CDP hearing or, alternatively, outside the CDP hearing context.  In light of COVID-19, taxpayers may have stronger arguments warranting relief under OIC-ETA procedures, particularly given the OIC-ETA’s analysis of economic hardship and compelling public policy or equitable considerations.

3.  Request for Withdrawal of NFTL

If the taxpayer does not qualify for an offer in compromise, the taxpayer can request the IRS withdraw the NFTL.  I.R.C. § 6323(j).  Under the Code, the IRS may withdraw the NFTL if, among other reasons:  (1) its withdrawal would facilitate collection of the tax liability, or (2) its withdrawal is in the beset interest of the taxpayer and the IRS.  Id.

Generally, withdrawal requests are discretionary.  However, taxpayers affected by COVID-19 and the NFTL may consider using this procedure to have the NFTL withdrawn.  To obtain a withdrawal of the NFTL from the IRS, the taxpayer must generally file a Form 12277, Application for Withdrawal of Filed Form 668(Y), Notice of Federal Tax Lien.  Predictably, the form requests a narrative for the reasons in which the NFTL should be withdrawn.

4.  Request for Lien Discharge

In some circumstances, it may be advantageous for a taxpayer to request a certificate of discharge.  This commonly occurs when the taxpayer is attempting to sell real property, and the taxpayer’s tax liabilities exceed the total equity of the property.  Without the lien discharge, the federal tax lien continues to follow the property (i.e., the purchaser takes the property subject to the lien).  In most cases, not having a lien discharge from the IRS postpones or terminates the closing.

Under I.R.C. § 6325(b), the IRS may issue a certificate of discharge for property subject to a federal tax lien if one of the following requirements has been met:  (1) the value of the taxpayer’s other property that remains subject to the federal tax lien is equal to at least twice the amount of the unsatisfied tax liability plus the amount of all other liens on the remaining property with priority over the tax lien; (2) the owner deposits with the IRS an amount equal to the value of the IRS’ interests in the property or furnishes a bond acceptable to the IRS; (3) the taxpayer pays the IRS an amount equal to the value of the tax lien; (4) the IRS’ interest in the property has no value; or (5) the taxpayer sells the property and the proceeds from the sale are substituted and encumbered by the tax lien.

To obtain a certificate of discharge from the IRS, the taxpayer is generally required to file a Form 14135, Application for Certificate of Discharge of Property from Federal Tax Lien.  Significantly, the IRS advises taxpayers that they should submit the form at least 45 days prior to the transaction date in which the certificate of discharge is needed (e.g., the closing date).

II.  The Federal Tax Levy

A.  Generally

If the taxpayer neglects or refuses to pay an outstanding tax debt within 10 days of notice and demand, the IRS may levy upon the taxpayer’s property and property rights.  I.R.C. § 6331(a).  However, this is subject to various exceptions, some of which are discussed more fully below.

The IRS generally effectuates a levy through serving a levy notice on a third party who is indebted to the taxpayer or a third part who holds property in which the taxpayer holds an interest.  For these purposes, and similar to the federal tax lien, the tax levy extends to “all property and rights to property” belonging to the taxpayer in addition to any property subject to an NFTL.  I.R.C. § 6331(a).  In addition, the IRS may seize property subject to a federal tax lien which has been sold or otherwise transferred, subject to the creditor protection rules discussed above in I.R.C. § 6323.  Treas. Reg. § 301.6331-1(a)(1).

Thus, when appropriate and more importantly when the IRS is aware of the location of a taxpayer’s assets or financial accounts, the IRS will issue the levy notice to the appropriate third party.  The levy notice can be used to seize and recover receivables, bank accounts, evidences of debt, securities, and salaries, wages, commissions or other compensation.  Treas. Reg. § 301.6331-1(a)(1).  Unless the levy is a continuous levy, the levy extends only to property possessed and obligations which exist at the time the levy was made.  Id.

Wages, Salaries and Commissions.  Levies on wages, salaries and commissions are continuous levies.  I.R.C. § 6331(e); Treas. Reg. § 301.6331-1(b)(1); U.S. v. Jefferson-Pilot Life Ins. Co., 49 F.3d 1020 (4th Cir. 1995) (independent contractor’s commissions subject to continuous levy).  Accordingly, the levy has continuous effect from the time the levy is made until it is released.  Treas. Reg. § 301.6331-1(b)(1).  To levy on wages or salary, the IRS will generally issue the taxpayer’s employer a Form 668-W, Notice of Levy on Wages, Salary, and Other Income.  After the employer has been served with the levy notice, the employer is required to surrender any non-exempt wages or salary to the IRS on the same date that the employer otherwise pays the taxpayer.  Treas. Reg. § 301.6331-1(b).

Social Security Benefits.  Levies on Social Security benefits are also continuous levies.  I.R.C. § 6331(h); CCM 199948004 (concluding that a single levy attaches to future Social Security benefit payments if the taxpayer has a current fixed and determinable right to those payments).  Generally, the IRS levies on Social Security benefits through the Federal Payment Levy Program (FPLP).  Under this program, the IRS levies up to 15% of the Social Security benefits each month.  I.R.C. § 6331(h)(1).

Other Continuous Levies.   The IRS has taken the position that a levy is also continuous if the levy attaches to property of a taxpayer that represents an unqualified fixed right, under a trust or contract, or through a chose in action, to receive periodic payments or distributions of property.  Rev. Rul. 55-210; see also St. Louis Union Trust Co. v. U.S., 617 F.2d 1293, 1302 (8th Cir. 1980) (“The unqualified contractual right to receive property is itself a property right subject to seizure by levy, even though the right to payment of the installments has not matured at the time of the levy.”).

Bank Levies.  Conversely, bank levies are not continuous levies.  See IRM pt. (Feb. 15, 2018).  Rather, a bank must surrender deposits in the taxpayer’s account (including any interest earned during the holding period) 21 days after being served with the notice of levy.  I.R.C. § 6332(c).  The congressional purpose for enactment of the 21-day holding period is to provide taxpayers with sufficient time to contact the IRS and arrange to pay the tax or notify it of errors.

B.  Levy Defenses

    1.  Collection Due Process Hearing

A significant difference between a CDP hearing for an NFTL and a proposed levy is that the IRS must issue the CDP hearing notice to the taxpayer before levying on the taxpayer’s assets.  I.R.C. § 6330.  Moreover, if the taxpayer files a timely CDP hearing request within 30 days, the IRS may not levy until Appeals has issued a notice of determination and, if timely filed, until the Tax Court reaches a decision on the taxpayer’s petition (including any appeal).  I.R.C. § 6330(e).

Similar to a CDP hearing for an NFTL, the taxpayer can raise the same defenses to the proposed levy. Accordingly, taxpayers with pending CDP hearings related to proposed levies should also consider supplementing their financial information with Appeals to the extent they have been negatively impacted by COVID-19.  Moreover, these taxpayers should directly challenge the appropriateness of the proposed levy in light of current circumstances.

    1. Request for Release of Levy

I.R.C. § 6343 requires the IRS to release levies in certain circumstances.  Qualifying circumstances include a determination by the IRS that the levy is creating an “economic hardship” due to the financial condition of the taxpayer. I.R.C. § 6343(a).  Under the Regulations, this condition applies if satisfaction of the levy (in whole or in part) would cause an individual taxpayer to be unable to pay his or her reasonable living expenses.  Treas. Reg. § 301.6343-1(b)(4).

In determining the reasonable amount of basic living expenses, the IRS must consider any information provided by the taxpayer, including:  (1) the taxpayer’s age, employment status and history, ability to earn, number of dependents, etc.; (2) the amount reasonably necessary for food, clothing, housing, medical expenses, transportation, current tax payments, alimony, child support, or other court-ordered payments, and expenses necessary for the taxpayer’s production of income; (3) the cost of living in the geographic area in which the taxpayer resides; (4) the amount of property exempt from levy which is available to pay the taxpayer’s expenses; (5) any extraordinary circumstances such as a natural disaster; and (6) any other factor that the taxpayer claims bears an economic hardship.

Because economic hardship is determined based on the taxpayer’s current employment in addition to the effects of any natural disasters (which surely, COVID-19 meets), taxpayers should consider requesting levy releases to the extent one has been issued (either continuous or one-time levies).

Generally, a taxpayer can make a request for release of a levy either orally over the phone or in writing.  Treas. Reg. § 301.6343-1(c)(1).  Taxpayers who make these requests should be ready to provide the IRS with the following information:  (1) the name, address, and taxpayer identification number of the taxpayer; (2) a description of the property levied; (3) the type of tax and period for which the tax is due; (4) the date of the levy and the originating IRS office, if known; and (5) a statement of the grounds upon which the request for release of levy is based.

With respect to requests of levy releases during COVID-19, the IRS has indicated that continuous levies will remain in place and “will not be automatically released.”  However, the IRS will consider the taxpayer’s request on a case-by-case basis to determine if the levy is causing an economic hardship.  To request a release of the levy, taxpayers should contact the appropriate Revenue Officer.  If a Revenue Officer has not been assigned, they can request a release via tax at (855) 796-4524.

    1. Stand-Alone OICs or Installment Agreements

If the taxpayer has exhausted his or her CDP rights or not yet been granted a CDP hearing, the taxpayer may consider filing a stand-alone offer in compromise or an installment agreement.  Under the Code, the IRS is generally precluded from levying against the taxpayer’s assets during the period the collection alternative is pending and until the taxpayer has received a determination from Appeals regarding the collection alternative.  I.R.C. § 6331(k).  Thus, the taxpayer enjoys the dual advantage of a stay of levy action and IRS review of their proposed collection alternative to satisfy the outstanding tax debts.

III.  Conclusion

This Insight provides only a handful of potential collection defenses against the IRS in light of the COVID-19 pandemic. To discuss these or any other potential collection defenses, please feel free to contact us.


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