Begin forwarded message:
 

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Levies on Social Security Benefits 42 USC 407 Assignment; 
Amendment of Section 26 USC 6331 Levy and Distraint 26 USC 6334 Property Exempt From Levy 

History shows that these benefits have been consistently immune from levy and seizure action since the enactment of the original Social Security Act. 
     Section 208, "the right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of  the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment or any other legal process, or to any bankruptcy or insolvency law."
      

The statute could not be more complete. You cannot under any condition levy and seize any portion of Social Security Benefits payable to any person for any reason. Social Security Benefits remain immune to any seizure or limitations. This is the one asset which is and remains invulnerable to seizure. 

Social Security Benefits are immune from levy pursuant to the statutes. Title 42 section 407 establishes that these benefits shall not be subject to levy and 26 USC 6331 and 26 USC 6334 together confirm this. 
     
42 USC 407 Assignment of Benefits 

(a) The right of a person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment or any other legal process, or to any bankruptcy or insolvency law. 
(b) Amendment of section: no other provision of law, enacted before, on, or after April 20, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section. 

26 USC 6331 Levy and Distraint 
(a) Authority of Secretary 

If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax (and such further sum as shall be sufficient to cover the expenses of the levy) by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person or on which there is a lien provided in this chapter for the payment of such tax. 
(b) Seizure and sale of property 
(c) Successive seizures 
(d) Requirement of notice before levy 
(e) Continuing levy on salary and wages  
(f) Uneconomical levy 
(g) Levy on appearance date of summons 
(h) Continuing levy on certain payments 

(1) If the Secretary approves a levy under this subsection, the effect of such levy on specified payments to or received by a taxpayer shall be continuous from the date such levy is first made until such levy is released. Notwithstanding section 6334, such continuous levy shall attach to up to 15 percent of any specified payment due to the taxpayer. 
(2) Specified payment means 
(A) any Federal payment other than a payment for which eligibility is based on the income or assets (or both) of a payee, 
(B) any payment described in paragraph (4), (7), (9), or (11) of section 6334(a), and 
(C) any annuity or pension payment under the Railroad Retirement Act or benefit under the Railroad Unemployment Insurance Act. 

26 USC 6334 Property Exempt from Levy 

(a) There shall be exempt from levy 
(11)Certain public assistance payments: Any amount payable to an individual as a recipient of public assistance under - 
(A) title IV or title XVI (relating to supplemental security income for the aged, blind, and disable of the Social Security Act, or 
(c) No other property exempt: Notwithstanding any other law of the United States (including section 207 of the Social Security Act), no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a).  
(f) Levy allowed on certain specified payments: Any payment described in subparagraph (B) or (C) of section 6331(h)(2) shall not be exempt from levy if the Secretary approves the levy thereon under section 6331(h). 

6334 NOTES  References in Text The Social Security Act, referred to in subsecs. (a)(11)(A) and (c), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles IV and XVI of the Social Security Act are classified generally to subchapters IV (Sec. 601 et seq.) and XVI (Sec. 1381 et seq.), respectively, of chapter 7 of Title 42,  The Public Health and Welfare. Section 207 of the Social Security Act is classified to section 407 of Title 42. 

American Jurisprudence 2000 Edition 
Social Security and Medicare 
Assignment and Withholding of Benefits 

Assignment 1990 SSI benefits cannot be assigned A provision of the Social Security Act, which states that the right of any person to future OASDI payments cannot be transferred or assigned, and that no money paid or payable or any right existing under the OASDI program is subject to execution, levy, attachment, garnishment or other legal process, or to the operation of any bankruptcy or insolvency law, is applicable to SSI payments as well. The SSA will not certify the payment of SSI benefits to a transferee or assignee of an eligible person or of a survivor of an eligible person who is entitled to receive the payment of an underpayment. 

Practice Guide: SSI benefits are expressly exempt from an Internal Revenue Service Levy to collect unpaid federal taxes. 

26 U.S.C.A. 6334(a)(11)(A). The SSA's responsibility for protecting benefits against legal process and assignment ends when the claimant is paid; however, the claimant can use these statutory provisions as a personal defense against actions to order payment of the benefits to someone else or legal processes to take the benefits.

Internal Revenue Service Procedures
Automated Levy Program 

Taxpayers are being told by IRS agents and Taxpayer Advocates that the Federal Payment Levy Program gives them the right to levy on Social Security. This is not correct. The Federal Payment Levy Program is not a statute but an automated system of matching taxpayer numbers with federal payments. Federal payments describe any payment made by the Federal Government, such as student loans, federal employees salaries and vendor payments. The IRS has included Social Security in the Federal Payment Levy Program because it is a Federal payment, however, the IRS ignores the ruling statute, 42 USC 407.

Part 5, Collecting Process Chapter 11, 
Notice of Levy
Section 7, 
Automated Levy Programs 
Background and Authority (5.11.7.2.1 (10-27-2000)

According to the Internal Revenue Manual, the IRS is allowed by law to levy up to 15% of Social Security Benefits. This is accomplished via the Federal Payment Levy Program (FPLP), which states in part: 

"Internal Revenue Code (IRC) Section 6331(h), as prescribed by the Taxpayer Relief Act of 1997 (Public Law 105-34) Section, authorizes the Internal Revenue Service to issue continuous levies on certain federal payments."  

"The law allows up to fifteen percent of (15%) specified payments to be levied. Specified payments include any federal payment other than a payment for which eligibility is based on the income and/or assets of a payee (e.g.: > Medicaid)." 

"The Department of Treasury, Financial Management Service 

(FMS) is the disbursing agent for many of the federal payments that can be levied."  

"FPLP is a paperless, automated levy program the IRS has implemented with FMS that will systemically attach 15% of certain federal payments made by FMS." 

"FPLP will be phased in over a 3 to 4 year timeframe. The first phase of the FPLP was implemented in July 2000." See IRM Part 5, Collecting Process, Chapter 19, Liability Collection, Section, Automated Levy Programs. 

Part 5, Collecting Process Chapter 11, 
Notice of Levy
Section 7, 
Automated Levy Programs 
Background and Authority (5.11.7.2.1 (10-27-2000)

1. Internal Revenue Code (IRC) Section 6331(h) as > prescribed by the Taxpayer Relief Act of 1997 (Public Law 105-34) Section 1024, > authorizes the Internal Revenue Service to issue continuous levies on > certain federal payments.  

2. The law allows up to fifteen percent of specified payments to be levied. Specified payments include any federal payment other than a payment for which eligibility is based on the income and/or assets of a payee.  

3. FMS disburses some of the federal payments that are available for levy under this new law.  

4. Although the law also allows levy on some payments that are exempt pursuant to IRC Section 6334(a), the Service will not pursue those payment sources at this time.  

Part, Collecting Process 
Chapter 10, 
Liability Collection 
Section 9, 
Automated Levy Programs

1. Internal Revenue Code (IRC) Section 6331(h), as prescribed by the Taxpayer Relief Act of 1997 (Public Law 105-34) > Section, authorizes the Internal Revenue Service to issue continuous levies on certain federal payments. 

2. The law allows up to fifteen percent of (15%) specified payments to be levied. Specified payments include any federal payment other than a payment for which eligibility is based on the income and/or assets of a payee (e.g.: Medicaid). 

3. The Department of Treasury, Financial Management Service (FMS) is the disbursing agent for many of the federal payments that can be levied. 

4. FPLP is a paperless, automated levy program the IRS has implemented with FMS that will systemically attach 15% of certain federal payments made by FMS.  

5. FPLP will be phased in over a 3 to 4 year timeframe. The first phase of > the FPLP was implemented in July 2000. 
 

 

-------------------------------------------------

Begin forwarded message:

 

From: "jbj" <jbj@access995.com>
Date: October 1, 2004 12:45:23 PM PDT
To: <royetuckman@dslextreme.com>
Subject: Social Security letter to be turned into Constructive Notice letter!!

FIRST AMENDMENT PETITION FOR REDRESS OF GRIEVANCES
DEMAND FOR ADMINISTRATIVE DUE PROCESS OF LAW


Oct. 1, 2004
Confirmation mailing

Jo Anne Barnhart, Commissioner
Social Security Administration
6401 Security Boulevard
Baltimore, MD 21235

IDENTIFICATION: anyone, Social Security #xxxxxxxxxxxx
SUBJECT: Internal Revenue Service Notice of Levy Form 668-W(c)
ISSUES: Initiate Administrative process and thereafter court process
necessary to terminate unlawful garnishment of my Social Security benefit.
AUTHORITIES: Administrative Procedures Act, Title 5
ENCLOSURES:
1. Affidavit of material facts;
2. Pages 345 & 346 of the U.S. Government Manual (2 pages), 2001/2002
edition;
3. P.L. 104-316, 110 Stat. 3826 & 3827 (2 pages);
4. IRS Delegation Order 29 (Rev. 5) (1 page), Internal Revenue Manual §
1.2.2.19 (05-15-2002);
5. Treasury Order 150-08 of March 25, 1954 (1 page);
6. Parallel Table of Authorities and Rules, published in the Index volume of
the Code of Federal Regulations, pages 729 & 769-773 (6 pages).
7. U.S. Representative Raul M. Grijalva September 8, 2003 letter to an IRS
Taxpayer Advocate in Arizona (names & other identifying information
redacted).
8. Photocopy of form letter from Charlies A. Wilson, Financial Management
Service
PURPOSE: Notification and demand to terminate the fraudulent garnishment of
money the Social Security Administration owes me as remuneration for Social
Security benefits.

Attention; Jo Anne Barnhart, Commissioner;
I am aware through correspondence with the Financial Management Service
that the Notice of Levy is the "uttered instrument" being utilized to exact
moneies from my social security check. Please be advised that I do not
consent to an administrative levy, i.e., garnishment of salary, wages or
other remuneration due from the Social Security Administration. I offer
testimony to that fact and more in the attached affidavit which I
incorporate herein as if set out in full. By surrendering part or all of my
Social Security Benefits you are violating my constitutional right to due
process of law. In the event you surrender sums due me as remuneration for
participation in social security, I reserve the right to pursue appropriate
civil and criminal remedies. Therefore, you would be advised to secure
verification from the Internal Revenue Service officer or agent responsible
for issuing the notice of levy that the Internal Revenue Service will defend
you, pay litigation expenses and compensate you for whatever damages are
awarded in the event that I prevail.
Please note that the IRS officer or employee responsible for the notice of
levy did not send you a Form 2159 Payroll Deduction Agreement, I have not
received, nor have you received, the necessary Letter 3164 notice, you have
not received a completed Form 12175, nor have you received a properly
executed Form 668 B Levy. Therefore, the naked notice of levy has no lawful
effect and you are not authorized by law to enforce it. Please reference IRS
website; 5.14.10 Payroll Deduction Agreements and Direct Debit Installment
Agreements <http://www.irs.gov/irm/page/0,,id=86524,00.html> to verify the
requirement for authorization and procedural documents listed in this
paragraph.
The naked notice of levy was fraudulently issued under the federal
Administrative Offset Program, a/k/a Treasury Offset Program, and the Social
Security Administration simply isn't authorized to participate against
private citizens. Only state and federal legislative, judicial and
administrative agencies may participate. See 31 U.S.C. § 3711 for
particulars. Per 31 U.S.C. § 3711(b)(1), even government disbursement
officers are required to ignore the procedure when it is fraudulent,
incomplete or otherwise irregular: "(b) (1) The head of an executive,
judicial, or legislative agency may not act under subsection (a)(2) or (3)
of this section on a claim that appears to be fraudulent, false, or
misrepresented by a party with an interest in the claim, or that is based on
conduct in violation of the antitrust laws."
To verify that the Treasury Financial Management Service instead of the
Internal Revenue Service has delegated authority over voluntary and
involuntary collection of delinquent tax debts, consult the authority
section of FMS system of records .015, Debt Collection Operation System,
published in the Federal Register on August 21, 2001, 66 F.R. 44204, et seq.
Authorities listed are as follows:
Authority for maintenance of the system:
Federal Claims Collection Act of 1966 (Pub L. 89-508), as amended by the
Debt Collection Act of 1982 (Pub L. 97-365, as amended); Deficit Reduction
Act of 1984 (Pub L. 98-369, as amended); Debt Collection Improvement Act of
1996 (Pub. L. 104-134, sec. 31001); Taxpayer Relief Act of 1997 (Pub. L.
105-34); Internal Revenue Service Restructuring and Reform Act of 1998 (Pub.
L. 105-206); 26 U.S.C. 6402; 26 U.S.C. 6331; 31 U.S.C. Chapter 37 (Claims),
Subchapter I (General) and Subchapter II (Claims of the U.S. Government).
Note that the authorities include sections 6331 (levy and distraint) and
6402 (authority to make credits and refunds) of the Internal Revenue Code.
By referencing the Parallel Table of Authorities and Rules, relevant
portions attached as an exhibit, there are no implementing regulations for
26 CFR Parts 1 or 31 for 26 U.S.C. § 6331 (levy and distraint) which might
vest the Internal Revenue Service with corresponding authority.
Please consult § 4080.50 of Part 3, Chapter 4000 of Title 1 of the Treasury
Financial Manual at http://www.fms.treas. gov/tfm/index.html.
An employee may arrange with the IRS to liquidate a tax liability through
payroll deduction. IRS Form 2159: Payroll Deduction Agreement, authorizes
such payroll deductions. The employee and a revenue officer (or other
authorized IRS agent) must sign Form 2159. Send the original to the payroll
officer. The employing agency deducts the amount agreed upon from the
employee's salary until the total tax liability is liquidated.
Where the Social Security Administration is concerned, § 5.14.10 of the
Internal Revenue Manual governs. Both the employee and the employer must
consent to administrative offset as the means for collecting delinquent
federal tax debts. See particularly § 5.14.10.2.5, beginning on page 2 of
the exhibit. The IRS agent must provide the Letter 3164 notice and a
properly executed Form 12175.
Since you did not receive the requisite consent form, notice, etc., and you
did not receive a valid levy instrument that verifies a judgment against me
from a court of competent jurisdiction, do not withhold money from what
Social Security owes me based on whatever "notice of levy" an Internal
Revenue Service agent or officer sent to you. The document is an uttered
instrument. The proper form IRS uses for garnishment, seizure, etc., is the
Form 668-B Levy, not the notice of levy. Additionally, in order to be valid,
a levy or any other execution instrument must be under the seal of the
Internal Revenue Service, thereby verifying it, or the seal of a court of
competent jurisdiction. See state and federal rules of evidence and
procedure: Any legal document issuing from a government agency is
self-executing evidence only when under the appropriate seal and the officer
who has custody of the seal verifies validity of the instrument.
Per 26 CFR § 301.6332-1(b)(2), the property custodian may refuse to honor a
"levy" in the event of reasonable cause: "The penalty described in this
subparagraph is not applicable in cases where bona fide dispute exists
concerning the amount of the property to be surrendered pursuant to a levy
or concerning the legal effectiveness of the levy."
Any statute that supposes to effect legislative judgment, thereby
eliminating judicial due process of law, is a bill of attainder, which the
U.S. Constitution prohibits both Congress and state legislatures from
enacting. Upon request I will mail a memorandum on relation-back doctrine
for details. However, the Internal Revenue Code does not authorize seizures,
garnishments and the like without judicial due process.
In Duncan v. Kahanamoku, Sheriff, (1946) 327 U.S. 304; 66 S. Ct. 606; 90 L.
Ed. 688, the Supreme Court of the United States condemned legislative
summary judgment and unilateral administrative execution:
Courts and their procedural safeguards are indispensable to our system of
government. They were set up by our founders to protect the liberties they
[**615] valued. Ex parte Quirin, 317 U.S. 1, 19. . Their philosophy has
been the people's throughout our history. For that reason we have
maintained legislatures chosen by citizens or their representatives and
courts and juries to try those who violate legislative enactments. We have
always been especially concerned about the potential evils of summary
criminal trials and have guarded against them by provisions embodied in the
Constitution itself. See Ex parte Milligan, 4 Wall. 2; Chambers v. Florida,
309 U.S. 227. Legislatures and courts are not merely cherished American
institutions; they are indispensable to our Government.
The notice of levy you received would be bogus for the simple reason that it
is not supported by a judgment from a court of competent jurisdiction.
However, there are numerous other flaws. In addition to other defects I will
cover in some detail, Internal Revenue Service personnel have no authority
whatever to levy salaries and wages from privately owned companies. The
authority is applicable solely to government agencies and personnel by 26
U.S.C. § 6331(a) absent from the back of the Notice of Levy sent to you: ".
Levy may be made upon the accrued salary or wages of any officer, employee,
or elected official, of the United States, the District of Columbia, or any
agency or instrumentality of the United States or the District of Columbia,
by serving a notice of levy on the employer (as defined in section 3401(d))
of such officer, employee, or elected official."
I encourage you to in particular review 26 CFR § 301.6331-1(a)(4).
I don't want to make this any more laborious than necessary, but it is
important to convey the scope of the "notice of levy" fraud so first I will
dispose of the notion that IRS or anyone else can administratively garnish
bank accounts, wages or anything else, then detail authorities IRS personnel
have access to. I will also touch on a few of the more bizarre facts
concerning federal income tax and the Internal Revenue Service.
In Fuentes v. Shevin, Attorney General of Florida, et al, (1972) 407 U.S.
67, 92 S.Ct. 1983, 32 L.Ed. 2d 556, the U.S. Supreme Court addressed
essentials of the due process clause as it appears in the Fifth and
Fourteenth Amendments:
[***HR3] [***HR4] For more than a century the central meaning of procedural
due process has been clear: "Parties whose rights are to be affected are
entitled to be heard; and in order that they may enjoy that right they must
first be notified." Baldwin v. Hale, 1 Wall. 223, 233. See Windsor v.
McVeigh, 93 U.S. 274; Hovey v. Elliott, 167 U.S. 409; Grannis v. Ordean, 234
U.S. 385. [***570] It is equally fundamental that the right to notice and an
opportunity to be heard "must be granted at a meaningful time and in a
meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552.
[***HR5] [***HR6] The constitutional right to be heard is a basic aspect of
the duty of government to follow a fair process of decision making when it
acts to deprive a person of his possessions. The purpose of this requirement
is not [*81] only to ensure abstract fair play to the individual. Its
purpose, more particularly, is to protect his use and possession of property
from arbitrary encroachment -- to minimize substantively unfair or mistaken
deprivations of property, a danger that is especially great when the State
seizes goods simply upon the application of and for the benefit of a private
party. So viewed, the prohibition against the deprivation of property
without due process of law reflects the high value, embedded in our
constitutional and political history, that we place on a person's right to
enjoy what is his, free of governmental interference. See Lynch v. Household
Finance Corp., 405 U.S. 538, 552.
[***HR7] The requirement of notice and an opportunity to be heard raises no
impenetrable barrier to the taking of a person's possessions. But the fair
process of decision-making that it guarantees works, by itself, to protect
against arbitrary deprivation of property. For when a person has an
opportunity to speak up in his own defense, and when the State must listen
to what he has to say, substantively unfair and simply mistaken deprivations
of property interests can be prevented. It has long been recognized that
"fairness can rarely be obtained by secret, one-sided determination of facts
decisive of rights. ... [And n]o better instrument has been devised for
arriving at truth than to give a person in jeopardy of serious loss notice
of the case against him and opportunity to meet it." Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123, 170-172 (Frankfurter, J.,
concurring).
[***HR8] If the right to notice and a hearing is to serve its full purpose,
then, it is clear that it must be granted at a time when the deprivation can
still be prevented. At a later hearing, an individual's possessions can be
returned to him if they were unfairly or mistakenly [**1995] taken in the
first place. Damages may even be [*82] awarded to him for the wrongful
deprivation. But no later hearing and no damage award can undo the fact that
the arbitrary taking that was subject to the right of procedural due process
has already occurred. [***571] "This Court has not ... embraced the general
proposition that a wrong may be done if it can be undone." Stanley v.
Illinois, 405 U.S. 645, 647.
[***HR9] [***HR10] This is no new principle of constitutional law. The
right to a prior hearing has long been recognized by this Court under the
Fourteenth and Fifth Amendments. Although the Court has held that due
process tolerates variances in the form of a hearing "appropriate to the
nature of the case," Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313,
and "depending upon the importance of the interests involved and the nature
of the subsequent proceedings [if any]," Boddie v. Connecticut, 401 U.S.
371, 378, the Court has traditionally insisted that, whatever its form,
opportunity for that hearing must be provided before the deprivation at
issue takes effect. E. g., Bell v. Burson, 402 U.S. 535, 542; Wisconsin v.
Constantineau, 400 U.S. 433, 437; Goldberg v. Kelly, 397 U.S. 254; Armstrong
v. Manzo, 380 U.S., at 551; Mullane v. Central Hanover Tr. Co., supra, at
313; Opp Cotton Mills v. Administrator, 312 U.S. 126, 152-153; United States
v. Illinois Central R. Co., 291 U.S. 457, 463; Londoner v. City & County of
Denver, 210 U.S. 373, 385-386. See In re Ruffalo, 390 U.S. 544, 550-551.
"That the hearing required by due process is subject to waiver, and is not
fixed in form does not affect its root requirement that an individual be
given an opportunity for a hearing before he is deprived of any significant
property interest, except for extraordinary situations where some valid
governmental interest is at stake that justifies postponing the hearing
until after the event." Boddie v. Connecticut, supra, at 378-379 (emphasis
in original).
The Supreme Court of Florida wrote one of the better analytical summaries of
U.S. Supreme Court decisions concerning procedural due process secured by
the Fifth and Fourteenth Amendment clauses in Ray Lien Construction, Inc. v.
Jack M. Wainwrite, (1977) 346 S.2d 1029:
Garnishment is but one form of summary remedy historically available to the
creditor. It is a method whereby a person's property, money, or credits in
the possession, under the control, or owing by another are applied to
payment of the former's debt to a third person by proper statutory process
against the debtor and garnishee. Because this remedy works a deprivation of
debtor's property, it must comply with the requirements of procedural due
process.
For more than a century the central meaning of procedural due process has
been clear: "Parties whose rights are to be affected are entitled to be
heard, and in order that they may enjoy that right, they must first be
notified." Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233, 17 L. Ed. 531.
Fuentes v. Shevin, 407 U.S. 67, [**4] 80, 92 S. Ct. 1983, 32 L. Ed. 2d 556
(1972).
The United States District Court for the Middle District of Florida recently
reviewed the statutes in question and held the procedure, as outlined in
Chapter 77, Florida Statutes, unconstitutional. See Bunton v. First National
Bank of Tampa, 394 F. Supp. 793 (M.D.Fla.1975). In arriving at its decision,
the District Court relied upon the Supreme Court's decision in North Georgia
Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S. Ct. 719, 42 L. Ed. 2d
751 (1975), wherein a similar Georgia prejudgment garnishment statute was
declared unconstitutional. In North Georgia Finishing, the Court referred to
its earlier decision in Fuentes v. Shevin, supra, wherein the Florida and
Pennsylvania replevin statutes were held invalid. Those statutes permitted a
secured installment seller to repossess goods sold without prior notice and
without opportunity for a hearing or other safeguard against mistaken
repossession. A writ was issuable by a clerk of the court upon ex [*1032]
parte application and posting of bond. It was not necessary to show that the
goods were wrongfully detained. Nor was provision made for prompt
post-seizure [**5] hearing. Thus, the debtor was deprived of his property
until final outcome of the repossession suit. The Georgia statute was
condemned on similar grounds. A writ of garnishment was issuable at the
behest of the seller, without notice or opportunity for early hearing and
without participation by a judicial officer. As in Fuentes, debtor's only
remedy was to post a security bond.

We read North Georgia Finishing, supra, and Mitchell, supra, to require a
hearing either before the alleged taking or promptly thereafter. In Unique
Caterers v. Rudy's Farm Co., supra, we found Chapter 76 constitutionally
deficient because it did not require an immediate post-seizure hearing.
Rather, it simply kept the court open at any time to hear motions for
dissolution.
We also stated:
It is constitutionally imperative that a writ issue only after an impartial
factual determination is made concerning the existence of the essential
elements necessary for issuance of [**8] the writ. Consequently, a writ must
be issued by a judicial officer based upon a prima facie showing rather than
pro forma by the clerk of court, unless the initial pleading is made under
oath to a clerk who makes an independent factual determination that the
requirements of the statute have been complied with. Only then can the
individual have his use and enjoyment of [*1033] property protected from
arbitrary encroachment. (footnote omitted)

The meaning of the Fifth Amendment due process clause shouldn't need
explanation. It says what it means and means what it says. However, in a
1935 decision on a completely different matter, the U.S. Supreme Court
summarized essentials of tax administration, and in the course of the
off-point discourse, equated assessments to judgments. IRS utilizes those
few paragraphs of dicta to fraudulently justify administrative liens and
levies when in reality, two years earlier, the Supreme Court struck down
conclusive presumption statutes. At any rate, unless you have evidence of a
court order authorizing pre-judgment or post-judgment garnishment, as
required by the Federal Debt Collection Procedures Act, you have no
authority whatever to garnish Social Security Benefits that belongs to me.
We will now consider supplemental authorities that evidence the extent of
IRS fraud. It is also important to emphasize the potential those who
accommodate the fraud have for civil and criminal liability.
According to the United States Attorney's Manual, the purpose of a "levy" is
to not to "seize" assets, but to "freeze" assets until a civil action for
collection of a delinquent tax debt is commenced:
UNITED STATES DEPARTMENT OF JUSTICE
TAX DIVISION JUDGMENT COLLECTION MANUAL - 1997 Ed.
E. Liquidating Assets
1. The IRS's Ability to Collect Administratively
A suit to reduce an assessment to judgment must be brought, or a
counterclaim filed, prior to the expiration of the ten-year period provided
under § 6502, I.R.C., or the extension of that period (by agreement or by
operation of law) (47). During this period the IRS has the power to seize
property by levy (*48) and distraint. I.R.C. §§ 6331-6344. If a collection
suit is timely filed, the IRS power to levy is extended for as long as the
suit is pending and for as long as any judgment resulting from the suit
remains enforceable.
*48. While a levy must be served within the period prescribed in I.R.C. §
6502, it "freezes" the corpus levied upon until a levy enforcement action is
commenced. Such an action may be brought at any later date. See, e.g.,
United States v. Eiland, 223 F.2d 118, 121-22 (4th Cir. 1955); United States
v. Weintraub, 613 F.2d 612 (6th Cir. 1979), cert. denied, 447 U.S. 905
(1980). [Bold & underscore emphasis added]
Thus, the purpose of the notice, assuming intent to initiate civil
litigation, is to require the 21-day hold; it is not a seizure order. If
litigation is not initiated by the government before the 21 days expires, no
action can be required or expected of you. Technically, a lis pendens must
be filed before a notice of levy is issued. You will find prejudgment
remedies classified in the Federal Debt Collection Procedure Act at 28
U.S.C. §§ 3101-3105. You will also find that state law forbids garnishment,
seizure and encumbrance of property without a judgment from a court of
competent jurisdiction. In sum, garnishment other than via a voluntary
administrative offset agreement is a lawful remedy only as a pre-judgment
remedy, which corresponds with 28 U.S.C. §§ 3101-3105, or as a post-judgment
remedy, which under federal law must comply with provisions of 28 U.S.C. §
3205.
According to the following court case, the levy is Form 668 B, which
replaced the Form 69, Warrant for Distraint. The Secretary's authority to
issue a warrant for distraint is found at Title 31 Section 3541, which
authorizes the Secretary to obtain a warrant for distraint against public
officials who are holding the government's money. Warrants for distraint are
served by United States Marshals, not by IRS agents, and not through the
mail.
"Under the 1939 Code, effective with respect to distraint and seizure and
sale actions prior to January 1, 1955, levy or distraint on personal or real
property in the possession of a taxpayer was authorized by a signed Warrant
for Distraint, Form 69, which commanded the collection officer to take the
necessary distraint action. Under the 1954 Code, effective with respect to
all collection actions after December 31, 1954, the levy and distraint
action will be authorized by a new form, Levy, Form 668-B, January 1955.
This form, properly executed, directs the collection officer to levy upon,
and to sell so much of the property and rights to property, either real or
personal, of the taxpayer liable, as may be necessary to satisfy the taxes
enumerated in the levy." Henderson v. Internal Revenue Service, KTC 1994-486
(S.D. Ind. 1994) [Bold & underscore emphasis added]
The notice also says "this levy requires.." A notice is never the thing of
which it notifies. If the levy requires some action, evidence of the action
must be included with or identified on the execution instrument. For
example, notices of federal tax lien IRS personnel routinely send to county
recorders have space on the back for judgment abstracts but that portion is
rarely if ever completed because IRS personnel are either ignorant or are
masters at coercion and intimidation. See 28 U.S.C. § 3201 concerning
judgment liens and definitions at 28 U.S.C. § 3002(3) to verify that "tax
debts" are in fact among obligations to Government of the United States
subject to the Federal Debt Collection Procedures Act. As is the case for
federal tax liens, if there is no judicial writ attached to or referenced on
a notice of levy, and the notice is accompanied by an actual Form 668-B
Levy, there is no levy.
Attorney General's Opinions, AGO 53-55 No. 97 and AGO 65-66 No. 127 explain
in some detail how a levy proceeds from an action in a court of law.
Further, Internal Revenue Service Letter Ruling, # 200123062, dated
5/2/2001, explains several important due process steps in serving notices of
levy.
First, such notices must include a Form 668 B, which is the actual levy.
Second, only those large businesses and governmental units, that have
designated officers and written agreements, are authorized to receive
notices of levy by mail. Third, to complete the levy, another form, Form 668
C, must be served, but cannot be served by mail; it must be served in
person. That completes service of "notice of levy". Absent Form 668 B, it is
dubious, if not patently false, that there is a levy. In the event the IRS
fails to serve either or both the levy and Form 668 C, service of process is
incomplete, and IRS defaults.
Again, state law governs property and rights to property, and substantive
due process rights secured by the state Bill of Rights correspond with those
secured by the Fourth, Fifth, Sixth and Seventh Amendments to the
Constitution of the United States. The Fifth Amendment due process clause
has universal application within States of the Union: No person shall be
deprived of life, liberty or property without due process of law. Further,
for reasons not addressed in this letter, federal judgments are foreign to
States of the Union and must be executed via state courts of competent
jurisdiction.
Even registering a foreign judgment does not give the foreign creditor the
right to execute on it. The creditor must obtain the equivalent in a state
court before proceeding. In brief, there can be no seizure before a judgment
in a state court is rendered. Further, the AGO states clearly that there are
two forms of judicial process referred to above, writs of attachment and
writs of garnishment. Since a notice of levy is neither, it should be
obvious that it is not "service of process" in any legal sense whatsoever.
Federal law says that a levy is served with a writ of attachment; writs of
attachment have a different purpose than writs of garnishment.
The Treasury Financial Services publishes a procedural manual (the Treasury
Financial Manual, or TFM) that explains in plain English that the IRS can
only "serve" notices of levy on government officers who are appointed by
heads of agencies to receive such notices. The following excerpts from
Chapter 3, Part 4000, of Volume 1, were downloaded from the Treasury
Financial Services web site, at <http://www.fms.treas. gov/tfm/index.html>.
Section 4080-Levy for Unpaid Tax Liability
IRC provisions permit district directors to collect delinquent Federal taxes
by levy on the accrued salary or wages of any officer, employee or elected
official of the United States or the District of Columbia. Since this levy
is served against the take-home pay of the employee, once the levy is
served, agencies should not permit an employee to increase any voluntary
allotment until the tax liability is liquidated or other arrangements
satisfactory to the IRS are made.
4080.10-Service of Levy
An IRS employee (agent) serves notice of levy on wages, salary and other
income of individuals designated under section 4080.20. The IRS can serve
this notice in person or by mail. Service by mail is limited to the United
States, its territories and possessions, and ships at sea. A notice of levy
includes an original and four copies. All copies should be signed and dated,
with the time of receipt noted on the forms. The agency should return the
original to the IRS employee. The employing agency keeps one copy. IRS or
the employing agency sends another copy to the employee.
The person designated in section 4080.20 must honor all applicable notices
of levy, whether served in person or received by mail. The General
Accounting Office makes no disallowance nor does it raise charges against
any disbursing officer or designated person for complying with notices of
levy.
4080.20-Designating Individuals to Receive Service of Notice of Levy
Each Government agency should designate one or more persons on whom notice
of levy for delinquent taxes of its employees may be served. These designees
receive written statements from such employees regarding exemptions for
dependents as provided for in the IRC.
Nothing in the TFM indicates that IRS has authority to perform any similar
act regarding private citizens in regard to the Social Security
Administration. Unless you are one of the designated agents outlined above,
you are not a person lawfully authorized to respond to an IRS notice of
levy. A government or state employer must agree to participate in
administrative offset as the means for collecting delinquent federal taxes,
as specified by § 5.14.10 of the Internal Revenue Manual.
Previously cited sections of the Treasury Financial Manual are somewhat
misleading as government employees subject to administrative garnishment
must voluntarily agree to garnishment. See § 4080.50, cited in the first
part of this letter. If a federal employee doesn't concede a liability for
delinquent taxes and voluntarily authorize administrative offset
garnishment, the Treasury Financial Management Service must verify the claim
then recommend civil action for collection. The Attorney General must
initiate an action in compliance with 26 U.S.C. § 7402. See 5 U.S.C. § 5512
concerning garnishment litigation against government personnel. In notes
following § 5512, you will find that the General Accounting Office, not the
Internal Revenue Service or even the Secretary of the Treasury, was general
agent of the Treasury until 1996. Via Public Laws 104-53 & 104-316 (See
attached exhibit), the Office of Management and Budget replaced GAO in that
capacity; GAO subsequently delegated the authority to FMS. The authorization
process originates in Executive Order #6166 of June 10, 1933, as amended.
The simple explanation for why the Internal Revenue Service doesn't have
lien and levy authority is that Congress did not create the Internal Revenue
Service or its predecessor, the Bureau of Internal Revenue, as required by
Article I § 8, clause 18 of the U.S. Constitution. Please have your legal
department reference the IRS organization statement published in Volume 37
of the Federal Register on October 5, 1972. Toward the bottom of the first
column on page 20960, you will find the following statement: "(3) By common
parlance and understanding of the time, an office of the importance of the
Office of Commissioner of Internal Revenue was a bureau."
The fact is, Congress did precisely what Congress intended in the revenue
act of July 1, 1862 (12 Stat. 432) by creating three offices: The office of
Commissioner of Internal Revenue, the office of assessor, and the office of
collector. While there was only one Commissioner of Internal Revenue, an
assessor and a collector were appointed for each revenue district. In each
case the President would nominate people for the positions and the names
were submitted for advice and consent of the Senate, as required by Article
II § 2, clause 2 of the Constitution. Once candidates for each office were
improved the President was required to issue civil commissions; each newly
commissioned officer was then required to take his or her oath of office and
post a personal surety bond. Collectors were responsible for collecting tax
obligations under internal revenue laws of the United States until
implementation of the Internal Revenue Code of 1954; the offices of assessor
and collector were abolished by deceased former President Harry Truman via
Reorganization Plan 26 of 1950 and Reorganization Plan 1 of 1952.
Abolishing offices is as much a legislative act as creating them so the
Truman reorganization plans were void due to the Constitution vesting
Congress with complete legislative responsibility, but for reasons I won't
address in this letter the change didn't significantly affect liability for
or legitimate collection of income taxes imposed by Subtitle A of the
Internal Revenue Code.
Please reference IRS Delegation Order Number 29 (Rev. 5), Internal Revenue
Manual § 1.2.2.19 (05-15-2000), § 2, Authority: "To certify and approve as
accountable officers Internal Revenue Collections in such manner and on such
forms as the Financial Management Service of the Department of the Treasury
shall designate and/or require pursuant to the provisions of the Treasury
Financial Manual, and all amendments and revisions thereof."
The Internal Revenue Service, which technically isn't an agency of
Government of the United States, is delegate of the Secretary of the
Treasury in insular possessions of the United States, as the term "delegate"
is defined at 26 U.S.C. § 7701(a)(12)(B), but is not delegate of the
Secretary of the Treasury in States of the Union, as the term "delegate" is
defined at 26 U.S.C. § 7701(a)(12)(A). The Treasury Financial Management
Service, under general authority of the Fiscal Assistant Secretary, serves
as delegate of the Secretary of the Treasury for purposes of §
7701(a)(12)(A). By way of contract, memorandum of agreement or some such
device, the Internal Revenue Service merely provides ancillary services for
FMS - the Internal Revenue Service has absolutely no delegated authority to
unilaterally collect delinquent tax debts owing to Government of the United
States in States of the Union. IRS Delegation Order 29 completes the loop so
far as demonstrating that IRS is merely a functionary. I'm also including
Treasury Order 150-08 of March 25, 1954 as it verifies that the Internal
Revenue Service did not have expanded authority after implementation of the
Internal Revenue Code of 1954.
The levy and distraint section of the Internal Revenue Code (26 U.S.C. §
6331) originated in 1860's legislation that applied only to distilled
spirits, cotton and in some instances, tobacco products. After ratification
of the Eighteenth Amendment, application shifted exclusively to prohibition
laws. If you will consult the Parallel Table of Authorities and Rules (see
exhibit), published in the Index volume of the Code of Federal Regulations,
you will find that the only implementing regulation for 6320 (lien) & 6330
(levy & distraint) series Code sections is 27 CFR § 70, which is under
Bureau of Alcohol, Tobacco and Firearms jurisdiction. Since no regulations
are listed in the Parallel Table of Authorities and Rules, any other
application there is for §§ 6321, et seq. & 6331, et seq., must be strictly
intragovernmental. See 5 U.S.C. § 301.
The following wage garnishment sentence was inserted in § 6331(a) after
Congress authorized withholding at the source on government personnel
(Chapter 24 of the Internal Revenue Code): "Levy may be made upon the
accrued salary or wages of any officer, employee, or elected official, of
the United States, the District of Columbia, or any agency or
instrumentality of the United States or the District of Columbia, by serving
a notice of levy on the employer (as defined in section 3401(d)) of such
officer, employee, or elected official." The "employee" is defined at §
3401(c). In sum, the levy/garnishment authority does not reach private
enterprise or non-government employees. But even if that were not the case,
garnishment without consent would require a judgment from a court of
competent jurisdiction. If you will review the regulations themselves, you
won't find regulations relating to income and employment taxes in 26 CFR
Parts 1 & 31, but you will find garnishment regulations in 27 CFR Part 70.
This acid test is conclusive.
According to the United States Attorney's Manual, Part 6, Civil Litigation,
IRS cannot seize property without a court order, and a warrant to enter the
premises:
6-5.130 Order for Entry to Effect Levy
The IRS must obtain a warrant before entering constitutionally protected
premises to seize property for the payment of taxes. Cases involving orders
of this type will be referred directly to the United States Attorneys.
District Counsel has been instructed to prepare the pleadings -- standard
forms consisting of an application, affidavit and proposed order -- and to
present the pleadings to the USAOs for review and submission to the United
States District Court. See Tax Resource Manual at 22 et seq. If the case
requires any substantial deviation from these forms, please consult
immediately with the Chief of the appropriate Civil Trial Section.
Thus, it takes a court order to enter the premises to seize the property
levied. The DOJ Judgment Collection Manual states clearly that a levy is
used to "freeze" assets in a suit to reduce an assessment to judgment, not
to "seize" assets without a suit.
UNITED STATES DEPARTMENT OF JUSTICE TAX DIVISION
JUDGMENT COLLECTION MANUAL - 1997 Ed.
IV. Collecting the Judgment
E. Liquidating Assets
1. The IRS's Ability to Collect Administratively
A suit to reduce an assessment to judgment must be brought, or a
counterclaim filed, prior to the expiration of the ten-year period provided
under § 6502, I.R.C., or the extension of that period (by agreement or by
operation of law) (47). During this period the IRS has the power to seize
property by levy (*48) and distraint. I.R.C. §§ 6331-6344. If a collection
suit is timely filed, the IRS power to levy is extended for as long as the
suit is pending and for as long as any judgment resulting from the suit
remains enforceable.

*48. While a levy must be served within the period prescribed in I.R.C. §
6502, it "freezes" the corpus levied upon until a levy enforcement action is
commenced. Such an action may be brought at any later date. See, e.g.,
United States v. Eiland, 223 F.2d 118, 121-22 (4th Cir. 1955); United States
v. Weintraub, 613 F.2d 612 (6th Cir. 1979), cert. denied, 447 U.S. 905
(1980).
A levy is not a garnishment. It would take a court action to compel you to
surrender my property to another without my consent and over my objection;
ordinary people must get writs of garnishment, and so must governments.
The mystery concerning the government's authority to encumber and/or convert
private property is resolved by what is described as "relation-back
doctrine." The common law doctrine long pre-dates the U.S. Constitution. Any
statutory lien "arising" under § 6321 of the Internal Revenue Code is
inchoate (unperfected) until there is a judgment lien secured in compliance
with the Federal Debt Collection Procedures Act (See Chapter 176 of Title
28, particularly 28 U.S.C. § 3201). Therefore, notices of federal tax lien,
notices of levy and other such instruments utilized to encumber and/or
convert private property are uttered instruments unless perfected by a
judgment from a court of competent jurisdiction. See also, Fifth Amendment
due process clause, clarified by relation-back doctrine (See United States
v. A Parcel of Land, Buildings, Appurtenances and Improvements, known as 92
Buena Vista Avenue, Rumson, New Jersey (1993), 507 U.S. 111; 113 S.Ct. 1126;
122 L.Ed.2d 469).
In sum, a notice of levy is not a levy or a garnishment. Unless the tax
involved is administered by BATF, or is a government employee, there is no
justification for a levy. Unless the Social Security Administration is a
government agency with a written agreement to receive such notices, you are
not authorized to receive them by mail, let alone act upon them. Even where
such agreements are in place, the only way money can be garnished
administratively without a judicial writ of garnishment or some other
appropriate execution instrument is when whoever is subjected to the
administrative action has signed the consent form prescribed by the
Financial Management Service. Where private and state employers are
concerned, the employer, too, must consent and IRS personnel responsible for
administrative offset must provide the notice and additional forms required
by § 5.14.10 of the Internal Revenue Manual. I have not and do not intend to
sign such consent and to date you have not executed written consent to
garnishment via administrative offset.
Although everything possible has been done to hide the truth, the Code of
Federal Regulations speaks to liability of those who erroneously surrender
property to the Internal Revenue Service and other Department of the
Treasury bureaus such as the Bureau of Alcohol, Tobacco and Firearms.
At 26 CFR § 301.6332-1(b)(2), you will find the requirement to make a good
faith effort to determine whether or not there is a valid levy in place:
"The penalty described in this subparagraph is not applicable in cases where
bona fide dispute exists concerning the amount of the property to be
surrendered pursuant to a levy or concerning the legal effectiveness of the
levy."
A corresponding statement in BATF regulations more closely duplicates
verbiage in the 1966 Congressional Report on amended lien and levy
legislation. The cite is found at 27 CFR § 70.163(c): "Any person who
mistakenly surrenders to the United States property or rights to property
not properly subject to levy is not relieved from liability to a third party
who owns the property."
When looking that section up, it would be enlightening to read 27 CFR §
70.161(a)(4), "Certain types of compensation - (i) Federal employees." The
regulation clarifies proper application of 26 U.S.C. § 6331(a) garnishment
authority as applying to government personnel. Also, see 31 CFR §§ 202
through 215 for probably the most comprehensive list of government personnel
subject to garnishment.
On request I will provide a comprehensive memorandum on proper collection of
delinquent income taxes. The memorandum is in excess of thirty pages in
length so I'm not submitting it as an exhibit with this letter.
The Fifth Amendment due process clause is clear: "No person shall be
deprived of life, liberty or property without due process of law." At all
times I have conducted a good faith effort to determine the actual lawful
procedure that the Social Security Administration is using to take my
benefits.
The Internal Revenue Service is far worse than a wolf in sheep's clothing.
Congress did not legislatively create IRS, as required by Article I § 8,
clause 18 of the U.S. Constitution, so the agency cannot as a matter of law
operate in a fashion that encroaches on substantive and procedural due
process rights of the people. The entity has no lawful authority whatever in
States of the Union. However, that matter doesn't have to be resolved right
now. IRS is exercising de facto authority (authority in fact, but not with
the force of law) so the single issue for you to determine is whether or not
the notice of levy is backed by a judgment from a court of competent
jurisdiction or I have signed consent for voluntary administrative
garnishment.
In addition to various exhibits, please note the Affidavit of Material Facts
with this notice. Affidavits are one of three forms of testimony recognized
by state and federal courts. In the event that you or the IRS officer or
agent responsible for the notice of levy do not prove facts other than those
stated in the affidavit, or disprove facts stated in the affidavit, facts
stated in the affidavit will be stipulated by tacit procuration for all
future administrative and/or judicial proceedings.
Be advised that your failure to respond could place you in
legal jeopardy.
"Silence can be equated with fraud where there is a legal or moral duty to
speak, or where an inquiry left unanswered would be intentionally
misleading. . . We cannot condone this shocking behavior by the IRS. Our
revenue system is based on the good faith of the taxpayer and the taxpayers
should be able to expect the same from the government in its enforcement and
collection activities." U.S. v. Tweel, 550 F.2d 297, 299. See also U.S. v.
Prudden, 424 F.2d 1021, 1032.
In Per Ryder v. United States, 115 S.Ct. 2031, 132 L.Ed.2d 136, 515 U.S.
177, I am required to initiate a direct challenge to the authority of anyone
representing himself or herself as a government officer or agent prior to
the finality of any proceeding in order to avoid implications of de facto
officer doctrine. When challenged, those posing as government officers and
agents are required to affirmatively prove whatever authority they claim. In
the absence of proof, they may be held personally accountable for loss,
injury and damages.
In Federal Crop Insurance v. Merrill, 332 U.S. 380, the Supreme Court
ruled: "Whatever the form in which the government functions, anyone entering
into an arrangement with the government takes a risk of having accurately
ascertained that he who purports to act for the government stays within the
bounds of his authority, even though the agent himself may be unaware of the
limitations upon his authority." Also see Utah Power & Light Co. v. United
States, 243 U.S. 389; United States v. Stewart, 311 U.S. 60; and generally,
in re Floyd Acceptances, 7 Wall. 666.

Therefore, this letter is sufficient to provide notice of your fiduciary
responsibility and potential civil liability.
Resolution and Remedy to the instant controversy;
To resolve this controversy of facts and law the simple remedy is to
cease and desist from the unlawful taking of Social Security Benefits
forthwith and inform me of that fact by written confirmation of same.
Response time of 30 days is sufficent to verify facts and confirm legal
citations, beyond that shall be deemed denial of administative remedy.

Take notice and govern yourself according to law.

___________________
anyone
anytown


IRS ERISA FRAUD

ERISA is the Employee Retirement Income Security Act of 1974.

The US Supreme court has ruled in 504 U.S. 753 that ERISA qualified plans contain the anti-alienation provision which declare that benefits may not be assigned or alienated and that there is a restriction on the transfer of a debtor's beneficial interest.

In simple terms the law forbids the levy of any ERISA Qualified Retirment Plans by anyone.  The IRS violates this Supreme Court ruling consistently by making the false claim in their Internal Revenue Manual in section 25.17.7.21 (3) that the Supreme Court Ruling 504 U.S. 753 gives them the authority to levy ERISA plans.  This is a direct lie and is absolutely in direct violation of the language in 504 U.S. 753. 

This IRS behavior also exists when they levy social security benefits in direct violation of the social security law.  In short, the IRS tells the Supreme Court how they interpret the law, even if their interpretation is in direct violation of other statutes and the plain language of Supreme Court Case Law. 

http://www.tpirsrelief.com/irs_erisa_fraud.htm

 

 

 

 

TITLE 42 , CHAPTER 7 , SUBCHAPTER II, Sec. 407. US CODE COLLECTION See. 407. -Assignment of benefits

(b)

(c)

Amendment of section No other provision of law, enacted before, on, or after Apri120, 1983, may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.

Withholding of taxes Nothing in this section shall be construed to prohibit withholding taxes from any benefit under this subchapter, if such withholding is done pursuant to a request made in accordance with section 3402(p )(1 ) of the Internal Revenue Code of 1986 by the person entitled to such benefit or such person's representative payee Search this title: Notes Updates Parallel authorities (CFR) Topical references