Volume 19 Issue 4 -- July/August 2007
What is the best thing to do
when a client receives notice of a proposed levy or lien?
Often the best thing will be to file for a Collection Due Process (CDP)
The Internal Revenue Service
(IRS) is required to send out notice of the CDP Appeal right following a lien or
prior to a levy. Accompanying the notice of lien or final notice of intent to
levy will be the paperwork needed to initiate a CDP Appeal, which must be filed
within 30 days of the date on the notice.
A lien is a formal statement of
debt that is filed with the appropriate recorder of deeds or other locations
which informs the public that a tax debt is owed by, let’s say, “Sam.”
Once the lien is filed, all of the properties owned by Sam are subject to the
A levy, on the other hand, is
the taking of Sam’s property or funds (i.e. bank accounts). For example, if
the asset is a bank account and a levy is served, then after a required 21-day
period the funds in the bank account on the date the levy is received may be
taken, up to the amount of the levy. If the levy is served on other types of
assets, such as accounts receivable or machinery, they will be seized by the IRS
and, in some cases, sold.
If a CDP hearing request is
filed, in most cases the lien or levy will be suspended and other alternatives,
such as an installment agreement or offer in compromise, may be considered by
the CDP appeal officer.
One reason some practitioners
file CDP Appeals is to gain time. The revenue officer who requested the lien or
levy is usually prevented from taking further collection action until a CDP
appeals officer has reviewed the collection action.
In a CDP Appeal, a taxpayer may
challenge the tax liability, if he or she has not previously had an opportunity
to do so, or may propose other collection alternatives, such as an installment
agreement or an offer in compromise.
There are also other reasons to
file a CDP appeal. One, for example, is where a taxpayer has a third-party loan
agreement specifying that, if a tax lien is filed, the entire mortgage or
installment arrangement is accelerated and the full amount is due.
Also, a CDP Appeal may suspend a
levy in situations where a business has insufficient cash flow to continue if
the levy is fully enforced. An
appeals officer might suggest that an alternative such as an installment payment
agreement be considered.
In the “old days,” before
the CDP Appeal system came into existence, practitioners and reasonable revenue
officers could negotiate installment payment agreements for the taxpayer or take
other steps without the necessity for the CDP Appeals system. If a revenue
officer is assigned to the case and if it is the desire of the taxpayer to file
a CDP Appeal but continue to work with the revenue officer on an installment
agreement, it would be advisable to tell the revenue officer not to forward the
matter to a CDP appeals officer until a reasonable period of time has expired.
If the revenue officer forwards
the CDP Appeal to an appeals officer during the time the taxpayer’s
representative is trying to work with the revenue officer, there can be
substantial administrative problems. Appeals officers will not consider any
collection alternative as long as a revenue officer is actively involved.
The period of time between
filing for a CDP Appeal and hearing from an appeals or settlement officer can be
quite lengthy, sometimes six months to a year. Then, the contact is usually by
phone and the appeals officer can be in another part of the country. This does
not preclude working with the appeals officer, but it makes a face-to-face
meeting with a CDP person unlikely. Also, because these individuals are, after
all, IRS employees, they are unlikely to grant any sweeping types of equitable
If the request for a CDP hearing
is filed within 30 days of receipt, it is possible to appeal the matter to the
U.S. Tax Court. It appears from reading the opinions that this avenue has been
taken far too often — in cases where there are really no grounds for appeal to
If the CDP hearing request is
not filed within the required 30-day period, the IRS will grant what it calls an
“equivalent hearing,” but an adverse determination in such a hearing cannot
be appealed to the Tax Court.
The CDP Appeal system may
eventually be repealed or limited because it does not work well and it is
overused. A better alternative would be to require the IRS, and in particular
IRS supervisors, to use discretion in dealing with taxpayers.
Until that happens, a CDP Appeal
may be the client’s best course of action.
By Tax and Business Professionals, Inc.
9837 Business Way
Manassas, VA 20110
While designed to be accurate, this publication is not intended to constitute the rendering of legal, accounting, or other professional services or to serve as a substitute for such services.
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