Offer in Compromise Tax Lien Tax Levy Wage Garnishment Tax Filing

IRS Tax Lien Help - Tax Lien Removal Services

Tax Liens can be subordinated to allow you to buy, sell or refinance real estate!
Tax Liens can be appealed before or after they are issued!
Tax Liens can be lifted when it is in the mutual benefit of you and the IRS!
A Tax Lien must be removed if it is premature or otherwise not in accordance with the administrative procedures of the IRS!
Tax Liens are removed when a tax liability is settled in an offer in compromise!
The IRS has a discretion to remove a lien when you enter into an Installment Agreement to pay your tax liability!
Tax Liens are removed when the statute of limitations on collections has expired!
The IRS can be sued for erroneous filing of a tax lien!
Every effort should be made to remove the tax lien because it is a serious impediment to your ability to obtain credit as needed and when needed. The tax lien, filed in public records, is also a collection action that can soon be followed by other collection actions such as "levy" and "seizure" of all personal assets (including your home), business assets, and garnishment of your wages.

Nevertheless, the tax lien may be appealed; it may be invalid; there are procedures to have the IRS lift the tax lien; and there are statutory circumstances in which the IRS is required to lift the tax lien.

Your tax lien is invalid if the notice of tax lien is not in writing and issued within 5 business days after the day of the filing. The notice must state the amount of unpaid tax, the right to appeal the lien during a 30-day period following the end of the 5-day notification period.

The tax lien must be based on a valid assessment. There are technical requirements to support a valid assessment.

The IRS can remove a lien: where an installment agreement has been approved; where the withdrawal would be in the best interest of the taxpayer, as determined by the National Taxpayer Advocate; and where it would be in the best interests of both the U.S. and the taxpayer (where it serves no useful purpose).

A tax lien must be removed when your tax liability is paid, eliminated by the ten-year statute of limitations, or settled in an Offer in Compromise. The IRS can be forced to accept an Offer in Compromise settlement based on what is "collectible" from you rather than on the basis of how much you owe (even if that settlement is nominal). Settlements are often "pennies on the dollar."

The IRS can also be forced to consider "hardship" issues in Offer in compromise cases. Once an Offer in compromise has been accepted, the IRS must remove the tax lien in 30 days.

LIENS

Notice of Lien Filing: Synopsis - Collection Due Process Hearing Notice and opportunity for Collection Due Process hearing upon filing of lien

The IRS is required to file a notice of federal tax lien (NFTL) in order to obtain priority over purchasers, holders of a security interest, mechanic's lienors, or judgment lien creditors (Code Sec. 6323(a)). The notice is generally filed in an office designated by the state in which the property subject to the lien is located (Code Sec. 6323(f)).

The IRS is required to provide a taxpayer with the opportunity to administratively appeal the lien by filing a formal request for a hearing with the IRS Appeals Office (Code Sec. 6320). The hearing is referred to as a Collection Due Process hearing (CDP hearing).

The IRS must notify a taxpayer within five business days after the notice of federal tax lien is filed that the taxpayer may request a CDP hearing. This notice is referred to as a Collection Due Process Hearing Notice (CDP Notice).

The taxpayer (whether residing inside or outside of the U.S.) has 30 days after the end of the fifth business day in which to submit a request for a CDP hearing (Code Sec. 6320(a)(3)(B); Reg. §301.6320-1(c), Q&A-C3 and Q&A-C5). The request must be in writing and include the reason or reasons why the taxpayer disagrees with the filing of the NFTL (Reg. §301.6320-1(c), Q&A-C2). Form 12153, Request for a Collection Due Process hearing, is provided with the CDP Notice and may be used for this purpose. Form 12153 may also be obtained by calling the IRS, toll free, at 1-800-829-3676 (Reg. §301.6320-1(c), Q&A-C1). Generally, the CDP hearing request is filed with the IRS office that issued the CDP Notice. If that office is unknown, the request is sent to the compliance area director serving the compliance area in which the taxpayer resides or has its principal place of business. Taxpayers without a residence or principal place of business in the U.S. must send the request to the compliance director, Philadelphia Submission Processing Center (Reg. §301.6320-1(c), Q&A-C6).

The timeliness of a CDP hearing request is determined under the timely mailing as timely filing rules of Code Sec. 7502 and the weekend and holiday rules of Code Sec. 7503 (Reg. §301.6320-1(c), Q&A-C4).

Issues that may be raised at CDP hearing. In general, the taxpayer may raise any relevant issue related to the unpaid tax at the CDP hearing. For example, the taxpayer may assert innocent spouse status, challenge the appropriateness of the lien, request collection alternatives, such as installment payments and offers in compromise, and suggest which assets should be used to satisfy the tax liability. The existence or amount of the tax liability, however, may only be challenged if the taxpayer did not receive a timely statutory notice of deficiency or otherwise have the opportunity to dispute the tax liability.

Judicial review of hearing results. The determination of the Appeals Office is subject to judicial review if the taxpayer files a timely appeal (Code Sec. 6320(c); Code Sec. 6330(d)). This determination is referred to as the Notice of Determination. The CDP hearing must be conducted by an impartial IRS officer (Code Sec. 6320(b)(3)).

Suspension of certain limitation periods. The period of limitations relating to collection after assessment (Code Sec. 6502), criminal prosecutions (Code Sec. 6531), and suits (Code Sec. 6532) are suspended until the determination of the Appeals Office becomes final by expiration of the time for seeking review or reconsideration before the appropriate court. These limitation periods are suspended upon receipt of a taxpayer's written request for a CDP hearing (Reg. §301.6320-1(c), Q&A-C2)..

Equivalent hearing. If the CDP hearing request is not timely filed, the taxpayer may request an "equivalent hearing." Although Appeals will consider the same issues that may be raised in a CDP hearing, important advantages of a CDP hearing are lost. Specifically, limitation periods are not suspended, collection action is not necessarily suspended, and the decision of Appeals is not subject to court review (Reg. §301.6320-1(c), Q&A-C7).

Additional taxpayer alternatives to CDP hearing. A taxpayer may attempt to resolve concerns regarding the filing of a notice of federal tax lien before or after requesting a CDP hearing. The taxpayer should contact the office that is collecting the tax or that has filed the NFTL. If the situation is resolved after filing a request for a CDP hearing, the taxpayer may withdraw the request for the hearing in writing. The 30-day period in which a taxpayer may file a request for a CDP hearing is not suspended or extended while a taxpayer is engaged in an informal attempt to settle the dispute (Reg. §301.6320-1(c, Q&A-C9).

Coordination with Code Sec. 6330 CDP hearings. To the extent practicable, a CDP hearing requested under Code Sec. 6320 will be held in conjunction with any CDP hearing that the taxpayer requests under Code Sec. 6330 (Notice and Opportunity for Hearing Before Levy). Code Sec. 6330 provides procedural rules that apply before the IRS may levy upon a taxpayer's property, including a right to a hearing before Appeals and judicial review of the hearing determination.

A taxpayer may raise issues regarding spousal defenses, the appropriateness of the NFTL filing, and offers of collection alternatives at a Code Sec. 6320 CDP hearing even though the taxpayer did not take advantage of a prior opportunity to request a Code Sec. 6330 CDP hearing that would have covered the same tax and tax period. However, the taxpayer may not challenge the tax liability under this circumstance (Reg. §301.6320-1(e)(3), Q&A-E7).

Notice of Lien Filing: Taxpayers affected

A Collection Due Process Hearing Notice must be provided to the person named in a notice of federal tax lien. The notice provides the taxpayer with the opportunity to administratively appeal the lien by filing a formal request for a hearing with the IRS Appeals Office.

Notice of Lien Filing: Collection Due Process Hearing Notice

A Collection Due Process Hearing Notice (CDP Notice) must be provided in a letter given in person to the taxpayer subject to a federal tax lien, left at the dwelling or usual place of business of the taxpayer, or sent by certified or registered mail to the taxpayer's last known address not more than five business days after a notice of federal tax lien (NFTL) is filed (Code Sec. 6320(a)(1); Code Sec. 6320(a)(2); Reg. §301.6320-1(a)(1); Reg. §301.6320-1(a)(2), Q&A-A9). If one of these delivery methods is used, it is not necessary that the taxpayer actually receive or accept the CDP Notice (Reg. §301.6320-1(a)(2), Q&A-A11). The 30-day period in which the taxpayer must file a request for a CDP hearing will begin to run and, if the request is not timely filed, the taxpayer's right to the CDP hearing is lost.

However, the taxpayer may request an "equivalent hearing." An equivalent hearing may consider the same issues that may be raised at a CDP hearing but limitation periods will not be suspended, collection activities may continue, and the decision of the equivalent hearing may not be appealed to a court.

IRS failure to properly provide CDP Notice. If a taxpayer does not receive the CDP Notice because the IRS did not use one of the prescribed delivery methods, the IRS must provide the taxpayer with a Substitute CDP Notice and an opportunity to request a CDP hearing. The validity or priority of the related NFTL, however, is not affected by the improper delivery of an original CDP Notice (Reg. §301.6320-1(a)(2), Q&A-A12). The CDP hearing with respect to a substitute CDP Notice must be requested in writing prior to the end of the 30-day period commencing the day after the date of the substitute CDP Notice (Reg. §301.6320-1(c)(2), Q&A-C8).

Content of CDP Notice. The CDP Notice must state in simple and nontechnical terms:

(1) the amount of unpaid tax;

(2) the right to request a CDP hearing with the IRS Appeals Office within 30 days;

(3) the administrative appeals available to the taxpayer with respect to the NFTL and the procedures relating to such appeals; and

(4) the statutory provisions and procedures relating to the release of liens on property (Reg. §301.6320-1(a)(2), Q&A-A10).

A Form 12153, Request for Due Process Hearing, which may be used by the taxpayer to request a CDP hearing with the IRS Appeals Office, is generally included with a CDP Notice.

The CDP Notice will specify each tax and tax period listed in the notice of federal tax lien if the notice covers more than one tax period (Reg. §301.6320-1(a)(2), Q&A-A3).

CDP Notice provided only to taxpayer owing tax. The CDP Notice is provided only to the taxpayer named in the NFTL who is liable to pay the tax due (Code Sec. 6320(a)(1); Reg. §301.6320-1(a)(2), Q&A-A1). Thus, for example, a nominee of a taxpayer or a person who holds property for a taxpayer is not entitled to a CDP Notice even though that person is named on the lien (Reg. §301.6320-1(a)(2), Q&A-A7).

Circumstances under which CDP Notice is provided. A CDP Notice will be provided for each filing of a NFTL after January 19, 1999, at any location. The CDP Notice is required even if the IRS previously filed a notice of lien that covers the same tax period or periods (Reg. §301.6320-1(a)(2), Q&A-A4 and Q&A-5). For example, a CDP Notice will be provided for a NFTL filed on or after January 19, 1999, for a tax period or periods for which a NFTL was filed prior to that date.

Although a taxpayer will generally receive a CDP Notice for each NFTL filed on or after January 19, 1999, a taxpayer is entitled to only one CDP hearing if an earlier NFTL that was filed on or after January 19, 1999, covers the same tax and tax period (Code Sec. 6320(b)(2); Reg. §301.6320-1(b)(1), Q&A-B4). The hearing must be requested within the requisite 30-day period following the first post-January 18, 1999, NFTL and CDP Notice (Reg. §301.6320-1(b)(1), Q&A-B1). If a timely request for a CDP hearing is not made, the taxpayer may request an "equivalent hearing". A taxpayer may request a CDP hearing where a NFTL for a tax and tax period is filed on or after January 19, 1999, and a NFTL was filed prior to that date in another recording office (Reg. §301.6320-1(b)(1), Q&A-B2).

A CDP Notice is not provided if the IRS is refiling a NFTL. This is so even if the first NFTL was filed prior to January 19, 1999, and the second, refiled NFTL, was filed on or after January 19, 1999. Although a CDP hearing is not available with respect to the refiled lien, the taxpayer may seek reconsideration by the IRS office that is collecting the tax or filing the NFTL, an administrative hearing before the IRS Appeals Office, or assistance from the National Taxpayer Advocate (Reg. §301.6320-1(a)(2), Q&A-A6).

Notice of Lien Filing: Collection Due Process hearing procedures

A CDP hearing is held by the Internal Revenue Service Office of Appeals (Appeals) (Code Sec. 6320(b)(1)). The hearing must be conducted by an employee or officer who has no prior involvement with the unpaid tax unless the taxpayer waives this requirement in writing (Code Sec. 6320(a)(3); Reg. §301.6320-1(d)(1); Reg. §301.6320-1(d)(2), Q&A-D5). Prior involvement includes participation or involvement in an Appeals hearing (other than a Code Sec. 6320 Collection Due Process (CDP) hearing or Code Sec. 6330 pre-levy CDP hearing) that the taxpayer may have had with respect to the tax and tax period or periods shown on the notice of federal tax lien (NFTL) (Reg. §301.6320-1(d)(2), Q&A-D4).

CDP hearings are informal and are not required to be held face-to-face. The taxpayer has no right to subpoena and examine witnesses, and, according to the regulations, no transcripts or recordings of any meeting or conversation between an Appeals officer or employee and the taxpayer or the taxpayer's representative is required (Reg. §301.6320-1(d)(2), Q&A-D6). However, at least one District Court has held that informality did not completely obviate the need for the Appeals officer to compile a hearing record of some sort (Mesa Oil, Inc., DC Colo., 2001-1 USTC ¶50,130 (Nonacq.)).

One CDP hearing permitted. A taxpayer is entitled to only one CDP hearing for a tax and tax period set forth in a NFTL with respect to the first filing of a NFTL on or after January 19, 1999 (Reg. §301.6320-1(d)). A taxpayer, however, may be entitled to more than one CDP hearing with respect to a tax period if different types of taxes are involved (e.g., an income tax liability and an employment tax liability). A second CDP hearing for the same tax period may also be allowed where the amount of tax has changed as a result of an additional assessment or an additional accuracy-related or filing delinquency penalty has been assessed. The taxpayer is not entitled to another CDP hearing if the additional assessment represents accruals of interest or accruals of penalties (Reg. §301.6320-1(d)(2), Q&A-D1).

To the extent practicable, a hearing with respect to one tax period shown on an NFTL will be combined with all other hearings to which the taxpayer may be entitled with respect to other tax periods shown on the same NFTL (Reg. §301.6320-1(d)(2), Q&A-D2).

Location of CDP hearing. Generally, the CDP hearing is conducted in the IRS Appeals Office closest to the taxpayer's residence. .

Matters considered at CDP hearing. The following items are considered by Appeals at the CDP hearing:

(1) the validity, sufficiency, and timeliness of the CDP Notice and any request for a CDP hearing made by the taxpayer;

(2) any appropriate issue relating to the unpaid tax liability raised by the taxpayer;

(3) appropriate spousal defenses raised by the taxpayer;

(4) challenges made by the taxpayer to the appropriateness of the NFTL;

(5) any offers by the taxpayer for collection alternatives; and

(6) whether the continued existence of the NFTL represents a balance between the need for the efficient collection of taxes and the legitimate concern of the taxpayer that any collection be no more intrusive than necessary (Code Sec. 6320(c); Code Sec. 6330(c); Reg. §301.6320-1(e)(1)).

In addition, the hearing officer is required to obtain verification from the IRS that the requirements of any applicable law or administrative procedure for the filing of the NFTL have been met (Code Sec. 6320(c); Code Sec. 6330(c)(1); Reg. §301.6320-1(e)(3), Q&A-E1).

A taxpayer may waive, in writing, Appeal's consideration of matters it would otherwise consider in making its determination. Generally, this will occur with respect to issues that the taxpayer is able to resolve with the IRS office that collects the tax or files the NFTL. The taxpayer may also waive, in writing, its request that Appeals conduct a CDP hearing (Reg. §301.6320-1(e)(3), Q&A-E8).

Challenges to tax liability. A taxpayer may challenge the existence or amount of the tax liability specified in the CDP Notice only if the taxpayer did not (a) receive a statutory notice of deficiency or did not receive such notice in time to petition the Tax Court for a redetermination of the deficiency or (b) otherwise have an opportunity to dispute the tax liability.

A taxpayer has had the opportunity to dispute the tax liability if previously offered a conference with Appeals either before or after the assessment of the liability (Code Sec. 6320(c); Code Sec. 6330(c)(2)(B); Reg. §301.6320-1(e)(3), Q&A-E2). A taxpayer who previously received a Code Sec. 6330 CDP pre-levy Notice covering the same tax and tax period and did not request a CDP pre-levy hearing had the opportunity to dispute the tax liability and may not raise that issue at a later Code Sec. 6320 CDP hearing (Reg. §301.6320-1(e)(3), Q&A-E7).

Example:

The IRS properly assesses a trust fund recovery penalty against Bill Brown. If Brown is offered and declines the opportunity for a conference at which the liability may be disputed, he may not challenge the existence or amount of the tax in a subsequent CDP hearing.

Spousal defenses. A spousal defense may be raised in a CDP hearing provided that the defense was not raised and considered in a prior administrative or judicial proceeding that has become final (Reg. §301.6320-1(e)(3), Q&A-E4 and Q&A-E5). The taxpayer must raise spousal defenses under Code Sec. 6015 in writing. Code Sec. 6015 spousal defenses are governed by the terms of Code Sec. 6015 and its regulations and procedures (Reg. §301.6320-1(e)(2))..

Collection alternatives. The appeals officer will consider collection alternatives offered by the taxpayer in making the CDP hearing determination. Among possible collection alternatives that a taxpayer may offer is the withdrawal of the NFTL in order to facilitate the collection of the outstanding tax, an installment agreement, an offer-in-compromise, the posting of a bond, or the substitution of other assets for the property subject to the lien (Reg. §301.6320-1(e)(3), Q&A-E6).

of Lien Filing: Notice of Determination

Appeals will issue its findings with respect to a Code Sec. 6320 Collection Due Process hearing in a Notice of Determination. There is no deadline for issuing the Notice of Determination. The regulations, however, require the appeals officer to conduct the hearing "as expeditiously as possible" (Reg. §301.6320-1(e)(3), Q&A-E9). A taxpayer has 30 days after the date the Notice of Determination is issued in which to seek judicial review from a court that has jurisdiction over the type of tax involved (Reg. §301.6320-1(e)(3), Q&A-E10). For income taxes, this is the Tax Court.

A dated Notice of Determination, which sets forth findings and decisions, will be sent by certified or registered mail to the taxpayer (Reg. §301.6320-1(e)(3), Q&A-E8).

Contents of Notice of Determination. The dated Notice of Determination is required to:

(1) state whether the IRS met the requirements of any applicable law or administrative procedure;

(2) decide any allowable issue raised by the taxpayer at the hearing (e.g., challenges to the tax liability, spousal defenses, the appropriateness of the notice of federal tax lien (NFTL) filing, and collection alternatives);

(3) decide whether the NFTL is required for the efficient collection of taxes in light of a taxpayer's legitimate concern that the collection action be no more intrusive than necessary;

(4) set forth any agreements reached with the taxpayer, any relief given to the taxpayer, and any actions that the taxpayer or IRS are required to take; and

(5) advise the taxpayer that judicial review to the Tax Court or a U.S. district court must be sought within 30 days after the date of the Notice of Determination (Reg. §301.6320-1(e)(3), Q&A-E8).

Notice of Lien Filing: Judicial review of Notice of Determination

A taxpayer may seek judicial review of a finding contained in a Notice of Determination issued by the IRS Appeals Office. The appeal must be filed within 30 days after the date appearing on the Notice of Determination (Reg. §301.6320-1(f)(1)). However, if the taxpayer is only appealing the denial of innocent spouse relief under Code Sec. 6015(b) or Code Sec. 6015(c), the appeal may be filed with the Tax Court within 90 days of the determination as provided by Code Sec. 6015(e). Other issues may not be considered when an appeal is not filed within the 30-day period (Reg. §301.6320-1(f)(2), Q&A-F2).

The regulations provide that a taxpayer may only seek review of an issue that was raised in the Code Sec. 6320 Collection Due Process (CDP) hearing (Reg. §301.6320-1(f)(2), Q&A-F5).

Court to which appeal filed. The appeal is filed with the Tax Court if that court has jurisdiction over the type of tax specified in the CDP Notice (e.g., income, estate, and excise taxes). The Tax Court has jurisdiction over innocent spouse relief (except in the context of a refund suit) (Code Sec. 6015(e)). Otherwise the appeal is filed with the appropriate U.S. district court (e.g., employment taxes) (Reg. §301.6320-1(f)(2), Q&A-F3).

Appeal filed in wrong court. If a taxpayer files the appeal with the wrong court, it has an additional 30 days after that court's determination to file with the proper court. The regulations provide for the additional 30 days regardless of the reason that the court initially chosen is incorrect. For example, if the case is dismissed for lack of jurisdiction or venue, the taxpayer may file with the proper court within 30 days (Reg. §301.6320-1(f)(2), Q&A-F4).

Review standard applied by court. The regulations do not address the standard to be applied by a court in reviewing the findings of a Notice of Determination. However, the Conference Agreement to the IRS Restructuring and Reform Act of 1998 (P.L. 105-206) addresses this issue in the context of a Notice of Determination issued in connection with a pre-levy Collection Due Process hearing under Code Sec. 6330.

The Conference Agreement to P.L. 105-206 provides for a de novo review where the amount of the taxpayer's tax liability is at issue. All other issues are reviewed using an abuse of discretion standard. Presumably, these review standards apply equally to the review of a Code Sec. 6320 Notice of Determination.

Notice of Lien Filing: Tolling of limitation periods during Collection Due Process hearing

The following periods of limitations are suspended for the period during which the CDP hearing and any judicial appeal are pending:

(1) Code Sec. 6502 (relating to the 10-year statute of limitations for the collection of taxes after assessment);

(2) Code Sec. 6531 (relating to the 3- and 6-year limitations period on the institution of a criminal prosecution under an internal revenue law); and

(3) Code Sec. 6532 (relating to 2-year limitations period for taxpayer refund suits) (Code Sec. 6320(a)(4); Code Sec. 6330(e); Reg. §301.6320-1(g)(1)).

The regulations provide that the suspension begins on the date the IRS receives the taxpayer's written request for a Collection Due Process (CDP) hearing and continues until the IRS receives a written withdrawal of the request for the CDP hearing or the determination of the CDP hearing becomes final by reason of the expiration of the time for seeking judicial review or reconsideration (Reg. §301.6320-1(g)(2), Q&A-G1).

The suspended periods of limitation will not expire before the 90th day after the date on which the IRS receives the taxpayer's written withdrawal of the request for a CDP hearing or there is a final determination with respect to the hearing (Code Sec. 6320(a)(4); Code Sec. 6330(e); Reg. §301.6320-1(g)(1)).

The time for seeking judicial review generally expires 30 days after the date of the Notice of Determination.

Example (1):

The IRS assessed a tax liability against John James in 1995. The 10-year limitations period on the collection of James' tax liability (Code Sec. 6502) is scheduled to expire after August 1, 2005. A notice of federal tax lien is filed on certain land owned by James on May 1, 2004, and the IRS sends a Code Sec. 6320 Collection Due Process Hearing Notice (CDP Notice) to James within the required 5-business day period. The IRS receives a request to conduct a CDP hearing from James on May 15, 2004. The hearing is conducted and the Hearing Determination Letter is dated June 15, 2004. Assuming that James does not request judicial review within 30 days after the June 15, 2004, Determination Letter date, the Code Sec. 6502 statute of limitations is suspended from May 15, 2004 (the date of the IRS's receipt of the hearing request), until July 15, 2004 (expiration of time for seeking judicial review). The August 1, 2005, expiration date is extended an additional 60 days (i.e., the period from May 15, 2004, through July 15, 2004) and will expire after September 30, 2005.

Example (2):

Assume the same facts as in Example (1), above, except that the limitations period is scheduled to expire after August 1, 2004. The statute of limitations would normally be extended 60 days, as illustrated in the previous example, through September 30, 2004. However, the limitations period may not expire before the 90th day after the date of the final determination with respect to the CDP hearing. The final determination date is July 15 --the date that the time for seeking judicial review expired. The statute of limitation is therefore extended through October 13, 2004 (90 days after July 15, 2004).

The suspension only applies to taxes and the tax period or periods to which the CDP Notice relates. Additionally, the IRS may file notices of federal tax liens (NFTLs) for tax periods or taxes not covered by the CDP Notice, may file at other recording offices NFTLs for the same tax and tax period stated in the CDP Notice, and may take other non-levy collection actions (Reg. §301.6320-1(g)(2), Q&A-G3).

These periods of limitation are not suspended if a taxpayer fails to file a timely CDP hearing. Although the IRS will conduct an equivalent hearing in such a case, the equivalent hearing does not toll these periods of limitation..

Notice of Lien Filing: Jurisdiction of Appeals retained following Notice of Determination

The IRS Appeals Office (Appeals) retains jurisdiction over its Collection Due Process (CDP) hearing determination, including any additional administrative hearing requested by a taxpayer regarding the notice of federal tax lien and any collection actions taken or proposed with respect to the determination (Code Sec. 6320(c); Code Sec. 6320(d)(2); Reg. §301.6320-1(h)(1)).

The Notice of Determination may be changed if there is a change in the taxpayer's circumstances. Once a taxpayer has exhausted all other remedies, Appeals retains jurisdiction to consider whether the taxpayer's change in circumstances warrants a change to its earlier determination (Code Sec. 6320(c); Code Sec. 6320(d)(2); Reg. §301.6320-1(h)(1)).

No limitation periods are suspended while Appeals considers any matters raised by the taxpayer pursuant to the retained jurisdiction of Appeals (Reg. §301.6320-1(h)(2), Q&A-H1). Decisions made pursuant to retained jurisdiction are not appealable to the Tax Court or a District Court (Reg. §301.6320-1(h)(2), Q&A-H2).

Notice of Lien Filing: Equivalent hearings if Collection Due Process hearing not timely requested

A taxpayer who fails to request a Collection Due Process (CDP) hearing within the requisite 30-day period is not entitled to a CDP hearing. However, such a taxpayer may request an administrative hearing with the IRS Appeals Office (Appeals), which is referred to as an "equivalent hearing." Appeals will consider the same issues that it would have considered at a CDP hearing and follow the same procedures in arriving at its decision. The decision of Appeals in an equivalent hearing is issued in the form of a written Decision Letter. The written decision in a CDP hearing is referred to as a Notice of Determination (Reg. §301.6320-1(i)).

A Decision Letter will generally contain the same information as a Notice of Determination.

Although the same issues are considered at an equivalent hearing, an equivalent hearing has some significant disadvantages when compared to a CDP hearing.

Specifically, limitation periods are not suspended during the equivalent hearing and the Decision Letter is not appealable to the Tax Court or to a U.S. District Court. However, if the decision relates to the denial of innocent spouse relief under Code Sec. 6015(b) or Code Sec. 6015(c), review may be sought in the Tax Court within 90 days of the determination of Appeals, as provided by Code Sec. 6015(e); (Reg. §301.6320-1(i), Q&A-I5).

Finally, collection action is not automatically suspended during the period of the equivalent hearing. Appeals may request the IRS office responsible for collecting the taxes to suspend some or all collection action if appropriate or necessary under the circumstances (Reg. §301.6320-1(i).

INTERNAL REVENUE CODE – SECTION 6330 - NOTICE AND OPPORTUNITY FOR HEARING UPON FILING OF NOTICE OF LIEN

6320(a) REQUIREMENT OF NOTICE. --

6320(a)(1) IN GENERAL. --The Secretary shall notify in writing the person described in section 6321 of the filing of a notice of lien under section 6323.

6320(a)(2) TIME AND METHOD FOR NOTICE. --The notice required under paragraph (1) shall be --

6320(a)(2)(A) given in person;

6320(a)(2)(B) left at the dwelling or usual place of business of such person; or

6320(a)(2)(C) sent by certified or registered mail to such person's last known address,

not more than 5 business days after the day of the filing of the notice of lien.

6320(a)(3) INFORMATION INCLUDED WITH NOTICE. --The notice required under paragraph (1) shall include in simple and nontechnical terms --

6320(a)(3)(A) the amount of unpaid tax;

6320(a)(3)(B) the right of the person to request a hearing during the 30-day period beginning on the day after the 5-day period described in paragraph (2);

6320(a)(3)(C) the administrative appeals available to the taxpayer with respect to such lien and the procedures relating to such appeals; and

6320(a)(3)(D) the provisions of this title and procedures relating to the release of liens on property.

6320(b) RIGHT TO FAIR HEARING. --

6320(b)(1) IN GENERAL. --If the person requests a hearing under subsection (a)(3)(B), such hearing shall be held by the Internal Revenue Service Office of Appeals.

6320(b)(2) ONE HEARING PER PERIOD. --A person shall be entitled to only one hearing under this section with respect to the taxable period to which the unpaid tax specified in subsection (a)(3)(A) relates.

6320(b)(3) IMPARTIAL OFFICER. --The hearing under this subsection shall be conducted by an officer or employee who has had no prior involvement with respect to the unpaid tax specified in subsection (a)(3)(A) before the first hearing under this section or section 6330. A taxpayer may waive the requirement of this paragraph.

6320(b)(4) COORDINATION WITH SECTION 6330. --To the extent practicable, a hearing under this section shall be held in conjunction with a hearing under section 6330.

6320(c) CONDUCT OF HEARING; REVIEW; SUSPENSIONS. --For purposes of this section, subsections (c), (d) (other than paragraph (2)(B) thereof), and (e) of section 6330 shall apply.

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REGULATIONS: §301.6320-1Notice and opportunity for hearing upon filing of notice of federal tax lien

(a) Notification

(1) In general. --For a notice of Federal tax lien (NFTL) filed on or after January 19, 1999, the Commissioner, or his or her delegate (the Commissioner), will prescribe procedures to notify the person described in section 6321 of the filing of a NFTL not more than five business days after the date of any such filing. The Collection Due Process Hearing Notice (CDP Notice) and other notices given under section 6320 must be given in person, left at the dwelling or usual place of business of such person, or sent by certified or registered mail to such person's last known address, not more than five business days after the day the NFTL was filed. For further guidance regarding the definition of last known address, see §301.6212-2.

(2) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (a) as follows:

Q-A1. Who is the person entitled to notice under section 6320?

A-A1. Under section 6320(a)(1), notification of the filing of a NFTL on or after January 19, 1999, is required to be given only to the person described in section 6321 who is named on the NFTL that is filed. The person described in section 6321 is the person liable to pay the tax due after notice and demand who refuses or neglects to pay the tax due (hereinafter, referred to as the taxpayer).

Q-A2. When will the Internal Revenue Service (IRS) provide the notice required under section 6320?

A-A2. The IRS will provide this notice within five business days after the filing of the NFTL.

Q-A3. Will the IRS give notification to the taxpayer for each tax period listed in a NFTL filed on or after January 19, 1999?

A-A3. Yes. A NFTL can be filed for more than one tax period. The notification of the filing of a NFTL will specify each unpaid tax and tax period listed in the NFTL.

Q-A4. Will the IRS give notification to the taxpayer of any filing of a NFTL for the same tax period or periods at another place of filing?

A-A4. Yes. The IRS will notify a taxpayer when a NFTL is filed on or after January 19, 1999, for a tax period or periods at any recording office.

Q-A5. Will the IRS give notification to the taxpayer if a NFTL is filed on or after January 19, 1999, for a tax period or periods for which a NFTL was filed in another recording office prior to that date?

A-A5. Yes. The IRS will notify a taxpayer when each NFTL is filed on or after January 19, 1999, for a tax period or periods at any recording office.

Q-A6. Will the IRS give notification to the taxpayer when a NFTL is refiled on or after January 19, 1999?

A-A6. No. Section 6320(a)(1) does not require the IRS to notify the taxpayer of the refiling of a NFTL. A taxpayer may, however, seek reconsideration by the IRS office that is collecting the tax or refiling the NFTL, an administrative hearing before the IRS Office of Appeals (Appeals), or assistance from the National Taxpayer Advocate.

Q-A7. Will the IRS give notification to a known nominee of, or a person holding property of, the taxpayer of the filing of the NFTL?

A-A7. No. Such person is not the person described in section 6321 and, therefore, is not entitled to notice, but such persons have other remedies. See A-B5 of paragraph (b)(2) of this section.

Q-A8. Will the IRS give notification to the taxpayer when a subsequent NFTL is filed for the same period or periods?

A-A8. Yes. If the IRS files an additional NFTL with respect to the same tax period or periods for which an original NFTL was filed, the IRS will notify the taxpayer when the subsequent NFTL is filed. Not all such notices will, however, give rise to a right to a CDP hearing (see paragraph (b) of this section).

Q-A9. How will notification under section 6320 be accomplished?

A-A9. The IRS will notify the taxpayer by letter. Included with this letter will be the additional information the IRS is required to provide taxpayers as well as, when appropriate, a Form 12153, Request for a Due Process Hearing. The IRS may effect delivery of the letter (and accompanying materials) in one of three ways: by delivering the notice personally to the taxpayer; by leaving the notice at the taxpayer's dwelling or usual place of business; or by mailing the notice to the taxpayer at his last known address by certified or registered mail.

Q-A10. What must a CDP Notice given under section 6320 include?

A-A10. These notices must include, in simple and nontechnical terms:

(i) The amount of the unpaid tax.

(ii) A statement concerning the taxpayer's right to request a CDP hearing during the 30-day period that commences the day after the end of the five business day period within which the IRS is required to provide the taxpayer with notice of the filing of the NFTL.

(iii) The administrative appeals available to the taxpayer with respect to the NFTL and the procedures relating to such appeals.

(iv) The statutory provisions and the procedures relating to the release of liens on property.

Q-A11. What are the consequences if the taxpayer does not receive or accept a CDP Notice that is properly left at the taxpayer's dwelling or usual place of business, or sent by certified or registered mail to the taxpayer's last known address?

A-A11. A CDP Notice properly sent by certified or registered mail to the taxpayer's last known address or left at the taxpayer's dwelling or usual place of business is sufficient to start the 30-day period, commencing the day after the end of the five business day notification period, within which the taxpayer may request a CDP hearing. Actual receipt is not a prerequisite to the validity of the CDP Notice.

Q-A12. What if the taxpayer does not receive the CDP Notice because the IRS did not send that notice by certified or registered mail to the taxpayer's last known address, or failed to leave it at the dwelling or usual place of business of the taxpayer, and the taxpayer fails to request a CDP hearing with Appeals within the 30-day period commencing the day after the end of the five business day notification period?

A-A12. A NFTL becomes effective upon filing. The validity and priority of a NFTL is not conditioned on notification to the taxpayer pursuant to section 6320. Therefore, the failure to notify the taxpayer concerning the filing of a NFTL does not affect the validity or priority of the NFTL. When the IRS determines that it failed properly to provide a taxpayer with a CDP Notice, it will promptly provide the taxpayer with a substitute CDP Notice and provide the taxpayer with an opportunity to request a CDP hearing. Substitute CDP Notices are discussed in Q & A-B3 of paragraph (b)(2) and Q & A-C8 of paragraph (c)(2) of this section.

(3) Examples. --The following examples illustrate the principles of this paragraph (a):

Example 1. H and W are jointly and severally liable with respect to a jointly filed income tax return for 1996. IRS files a NFTL with respect to H and W in County X on January 26, 1999. This is the first NFTL filed on or after January 19, 1999, for their 1996 liability. H and W will each be notified of the filing of the NFTL.

Example 2. Employment taxes for 1997 are assessed against ABC Corporation. A NFTL is filed against ABC Corporation for the 1997 liability in County X on June 5, 1998. A NFTL is filed against ABC Corporation for the 1997 liability in County Y on June 17, 1999. The IRS will notify the ABC Corporation with respect to the filing of the NFTL in County Y.

Example 3. Federal income tax liability for 1997 is assessed against individual D. D buys an asset and puts it in individual E's name. A NFTL is filed against D in County X on June 5, 1999, for D's federal income tax liability for 1997. On June 17, 1999, a NFTL for the same tax liability is filed in County Y against E, as nominee of D. The IRS will notify D of the filing of the NFTL in both County X and County Y. The IRS will not notify E of the NFTL filed in County X. The IRS is not required to notify E of the NFTL filed in County Y. Although E is named on the NFTL filed in County Y, E is not the person described in section 6321 (the taxpayer) who is named on the NFTL.

(b) Entitlement to a CDP hearing

(1) In general. --A taxpayer is entitled to one CDP hearing with respect to the first filing of a NFTL (on or after January 19, 1999) for a given tax period or periods with respect to the unpaid tax shown on the NFTL if the taxpayer timely requests such a hearing. The taxpayer must request such a hearing during the 30-day period that commences the day after the end of the five business day period within which the IRS is required to provide the taxpayer with notice of the filing of the NFTL.

(2) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (b) as follows:

Q-B1. Is a taxpayer entitled to a CDP hearing with respect to the filing of a NFTL for a type of tax and tax periods previously subject to a CDP Notice with respect to a NFTL filed in a different location on or after January 19, 1999?

A-B1. No. Although the taxpayer will receive notice of each filing of a NFTL, under section 6320(b)(2), the taxpayer is entitled to only one CDP hearing under section 6320 for the type of tax and tax periods with respect to the first filing of a NFTL that occurs on or after January 19, 1999, with respect to that unpaid tax. Accordingly, if the taxpayer does not timely request a CDP hearing with respect to the first filing of a NFTL on or after January 19, 1999, for a given tax period or periods with respect to an unpaid tax, the taxpayer foregoes the right to a CDP hearing with Appeals and judicial review of the Appeals determination with respect to the NFTL. Under such circumstances, the taxpayer may request an equivalent hearing as described in paragraph (i) of this section.

Q-B2. Is the taxpayer entitled to a CDP hearing when a NFTL for an unpaid tax is filed on or after January 19, 1999, in one recording office and a NFTL was previously filed for the same unpaid tax in another recording office prior to that date?

A-B2. Yes. Under section 6320(b)(2), the taxpayer is entitled to a CDP hearing under section 6320 for each tax period with respect to the first filing of a NFTL on or after January 19, 1999, with respect to an unpaid tax, whether or not a NFTL was filed prior to January 19, 1999, for the same unpaid tax and tax period or periods.

Q-B3. When the IRS provides the taxpayer with a substitute CDP Notice and the taxpayer timely requests a CDP hearing, is the taxpayer entitled to a CDP hearing before Appeals?

A-B3. Yes. Unless the taxpayer provides the IRS a written withdrawal of the request that Appeals conduct a CDP hearing, the taxpayer is entitled to a CDP hearing before Appeals. Following the hearing, Appeals will issue a Notice of Determination, and the taxpayer is entitled to seek judicial review of that Notice of Determination.

Q-B4. If the IRS sends a second CDP Notice under section 6320 (other than a substitute CDP Notice) for a tax period and with respect to an unpaid tax for which a section 6320 CDP Notice was previously sent, is the taxpayer entitled to a section 6320 CDP hearing based on the second CDP Notice?

A-B4. No. The taxpayer is entitled to a CDP hearing under section 6320 for each tax period only with respect to the first filing of a NFTL on or after January 19, 1999, with respect to an unpaid tax.

Q-B5. Is a nominee of, or a person holding property of, the taxpayer entitled to a CDP hearing or an equivalent hearing?

A-B5. No. Such person is not the person described in section 6321 and is, therefore, not entitled to a CDP hearing or an equivalent hearing (as discussed in paragraph (i) of this section). Such person, however, may seek reconsideration by the IRS office collecting the tax or filing the NFTL, an administrative hearing before Appeals under its Collection Appeals Program, or assistance from the National Taxpayer Advocate. However, any such administrative hearing would not be a CDP hearing under section 6320 and any determination or decision resulting from the hearing would not be subject to judicial review under section 6320. Such person also may avail himself of the administrative procedure included in section 6325(b)(4) or of any other procedures to which he is entitled.

(3) Examples. --The following examples illustrate the principles of this paragraph (b):

Example 1. H and W are jointly and severally liable with respect to a jointly filed income tax return for 1996. The IRS files a NFTL with respect to H and W in County X on January 26, 1999. This is the first NFTL filed on or after January 19, 1999, for their 1996 liability. H and W are each entitled to a CDP hearing with respect to the NFTL filed in County X. On June 17, 1999, a NFTL for the same tax liability is filed against H and W in County Y. The IRS will give H and W notification of the NFTL filed in County Y. H and W, however, are not entitled to a CDP hearing or an equivalent hearing with respect to the NFTL filed in County Y.

Example 2. Federal income tax liability for 1997 is assessed against individual D. D buys an asset and puts it in individual E's name. A NFTL is filed against E, as nominee of D in County X on June 5, 1999, for D's federal income tax liability for 1997. The IRS will give D a CDP Notice with respect to the NFTL filed in County X. The IRS will not notify E of the NFTL filed in County X. The IRS is not required to notify E of the filing of the NFTL in County X. Although E is named on the NFTL filed in County X, E is not the person described in section 6321 (the taxpayer) who is named on the NFTL.

(1) In general. --When a taxpayer is entitled to a CDP hearing under section 6320, the CDP hearing must be requested during the 30-day period that commences the day after the end of the five business day period within which the IRS is required to provide the taxpayer with a CDP Notice with respect to the filing of the NFTL.

(2) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (c) as follows:

Q-C1. What must a taxpayer do to obtain a CDP hearing?

A-C1. (i) The taxpayer must make a request in writing for a CDP hearing. A written request in any form, which requests a CDP hearing, will be acceptable. The request must include the taxpayer's name, address, and daytime telephone number, and must be signed by the taxpayer or the taxpayer's authorized representative and dated. The CDP Notice should include, when appropriate, a Form 12153 (Request for a Collection Due Process Hearing) that can be used by the taxpayer to request a CDP hearing.

(ii) The Form 12153 requests the following information:

(A) The taxpayer's name, address, daytime telephone number, and taxpayer identification number (SSN or TIN).

(B) The type of tax involved.

(D) A statement that the taxpayer requests a hearing with Appeals concerning the filing of the NFTL.

(E) The reason or reasons why the taxpayer disagrees with the filing of the NFTL.

(iii) Taxpayers are encouraged to use a Form 12153 in requesting a CDP hearing so that the request can be readily identified and forwarded to Appeals. Taxpayers may obtain a copy of Form 12153 by contacting the IRS office that issued the CDP Notice or by calling, toll-free, 1-800-829-3676.

(iv) The taxpayer may perfect any timely written request for a CDP hearing which otherwise meets the requirements set forth above and which is made or alleged to have been made on the taxpayer's behalf by the taxpayer's spouse or any other representative by filing, within a reasonable time of a request from Appeals, a signed written affirmation that the request was originally submitted on the taxpayer's behalf.

Q-C2. Must the request for the CDP hearing be in writing?

A-C2. Yes. There are several reasons why the request for a CDP hearing must be in writing. The filing of a timely request for a CDP hearing is the first step in what may result in a court proceeding. A written request will provide proof that the CDP hearing was requested and thus permit the court to verify that it has jurisdiction over any subsequent appeal of the Notice of Determination issued by Appeals. In addition, the receipt of the written request will establish the date on which the periods of limitation under section 6502 (relating to collection after assessment), section 6531 (relating to criminal prosecutions), and section 6532 (relating to suits) are suspended as a result of the CDP hearing and any judicial appeal. Moreover, because the IRS anticipates that taxpayers will contact the IRS office that issued the CDP Notice for further information or assistance in filling out Form 12153, or to attempt to resolve their liabilities prior to going through the CDP hearing process, the requirement of a written request should help prevent any misunderstanding as to whether a CDP hearing has been requested. If the information requested on Form 12153 is furnished by the taxpayer, the written request also will help to establish the issues for which the taxpayer seeks a determination by Appeals.

Q-C3. When must a taxpayer request a CDP hearing with respect to a CDP Notice issued under section 6320?

A-C3. A taxpayer must submit a written request for a CDP hearing within the 30-day period that commences the day after the end of the five business day period following the filing of the NFTL. Any request filed during the five business day period (before the beginning of the 30-day period) will be deemed to be filed on the first day of the 30-day period. The period for submitting a written request for a CDP hearing with respect to a CDP Notice issued under section 6320 is slightly different from the period for submitting a written request for a CDP hearing with respect to a CDP Notice issued under section 6330. For a CDP Notice issued under section 6330, the taxpayer must submit a written request for a CDP hearing within the 30-day period commencing the day after the date of the CDP Notice.

Q-C4. How will the timeliness of a taxpayer's written request for a CDP hearing be determined?

A-C4. The rules and regulations under section 7502 and section 7503 will apply to determine the timeliness of the taxpayer's request for a CDP hearing, if properly transmitted and addressed as provided in A-C6 of this paragraph (c)(2).

Q-C5. Is the 30-day period within which a taxpayer must make a request for a CDP hearing extended because the taxpayer resides outside the United States?

A-C5. No. Section 6320 does not make provision for such a circumstance. Accordingly, all taxpayers who want a CDP hearing under section 6320 must request such a hearing within the 30-day period that commences the day after the end of the five business day notification period.

Q-C6. Where should the written request for a CDP hearing be sent?

A-C6. The written request for a CDP hearing must be sent, or hand delivered, to the IRS office that issued the CDP Notice at the address indicated on the CDP Notice. If the address of that office does not appear on the CDP Notice, the request must be sent, or hand delivered, to the compliance area director, or his or her successor, serving the compliance area in which the taxpayer resides or has its principal place of business. If the taxpayer does not have a residence or principal place of business in the United States, the request must be sent, or hand delivered, to the compliance director, Philadelphia Submission Processing Center, or his or her successor. Taxpayers may obtain the address of the appropriate person to which the written request should be sent or hand delivered by calling, toll-free, 1-800-829-1040 and providing their taxpayer identification number (SSN or TIN).

Q-C7. What will happen if the taxpayer does not request a CDP hearing in writing within the 30-day period that commences the day after the end of the five business day notification period?

A-C7. If the taxpayer does not request a CDP hearing in writing within the 30-day period that commences on the day after the end of the five business day notification period, the taxpayer will forego the right to a CDP hearing under section 6320 with respect to the unpaid tax and tax periods shown on the CDP Notice. The taxpayer may, however, request an equivalent hearing. See paragraph (i) of this section.

Q-C8. When must a taxpayer request a CDP hearing with respect to a substitute CDP Notice?

A-C8. A CDP hearing with respect to a substitute CDP Notice must be requested in writing by the taxpayer prior to the end of the 30-day period commencing the day after the date of the substitute CDP Notice.

Q-C9. Can taxpayers attempt to resolve the matter of the NFTL with an officer or employee of the IRS office collecting the tax or filing the NFTL either before or after requesting a CDP hearing?

A-C9. Yes. Taxpayers are encouraged to discuss their concerns with the IRS office collecting the tax or filing the NFTL, either before or after they request a CDP hearing. If such a discussion occurs before a request is made for a CDP hearing, the matter may be resolved without the need for Appeals consideration. However, these discussions do not suspend the running of the 30-day period, commencing the day after the end of the five business day notification period, within which the taxpayer is required to request a CDP hearing, nor do they extend that 30-day period. If discussions occur after the request for a CDP hearing is filed and the taxpayer resolves the matter with the IRS office collecting the tax or filing the NFTL, the taxpayer may withdraw in writing the request that a CDP hearing be conducted by Appeals. The taxpayer can also waive in writing some or all of the requirements regarding the contents of the Notice of Determination.

(3) Examples. --The following examples illustrate the principles of this paragraph (c):

Example 1. A NFTL for a 1997 income tax liability assessed against individual A is filed in County X on June 17, 1999. The IRS mails a CDP Notice to individual A's last known address on June 18, 1999. Individual A has until July 26, 1999, a Monday, to request a CDP hearing. The five business day period within which the IRS is required to notify individual A of the filing of the NFTL in County X expires on June 24, 1999. The 30-day period within which individual A may request a CDP hearing begins on June 25, 1999. Because the 30-day period expires on July 24, 1999, a Saturday, individual A's written request for a CDP hearing will be considered timely if it is properly transmitted and addressed to the IRS in accordance with section 7502 and the regulations thereunder no later than July 26, 1999.

Example 2. Same facts as in Example 1, except that individual A is on vacation, outside the United States, or otherwise does not receive or read the CDP Notice until July 19, 1999. As in Example 1, individual A has until July 26, 1999, to request a CDP hearing. If individual A does not request a CDP hearing, individual A may request an equivalent hearing as to the NFTL at a later time. The taxpayer should make a request for an equivalent hearing at the earliest possible time.

Example 3. Same facts as in Example 2, except that individual A does not receive or read the CDP Notice until after July 26, 1999, and does not request a hearing by July 26, 1999. Individual A is not entitled to a CDP hearing. Individual A may request an equivalent hearing as to the NFTL at a later time. The taxpayer should make a request for an equivalent hearing at the earliest possible time.

Example 4. Same facts as in Example 1, except the IRS determines that the CDP Notice mailed on June 18, 1999, was not mailed to individual A's last known address. As soon as practicable after making this determination, the IRS will mail a substitute CDP Notice to individual A at individual A's last known address, hand deliver the substitute CDP Notice to individual A, or leave the substitute CDP Notice at individual A's dwelling or usual place of business. Individual A will have 30 days commencing on the day after the date of the substitute CDP Notice within which to request a CDP hearing.

(d) Conduct of CDP hearing

(1) In general. --If a taxpayer requests a CDP hearing under section 6320(a)(3)(B) (and does not withdraw that request), the CDP hearing will be held with Appeals. The taxpayer is entitled under section 6320 to a CDP hearing for the unpaid tax and tax periods set forth in a NFTL only with respect to the first filing of a NFTL on or after January 19, 1999. To the extent practicable, the CDP hearing requested under section 6320 will be held in conjunction with any CDP hearing the taxpayer requests under section 6330. A CDP hearing will be conducted by an employee or officer of Appeals who, prior to the first CDP hearing under section 6320 or section 6330, has had no involvement with respect to the unpaid tax for the tax periods to be covered by the hearing, unless the taxpayer waives this requirement.

(2) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (d) as follows:

Q-D1. Under what circumstances can a taxpayer receive more than one CDP hearing under section 6320 with respect to a tax period?

A-D1. The taxpayer may receive more than one CDP hearing under section 6320 with respect to a tax period where the tax involved is a different type of tax (for example, an employment tax liability, where the original CDP hearing for the tax period involved an income tax liability), or where the same type of tax for the same period is involved, but where the amount of the unpaid tax has changed as a result of an additional assessment of tax (not including interest or penalties) for that period or an additional accuracy-related or filing-delinquency penalty has been assessed. The taxpayer is not entitled to another CDP hearing under section 6320 if the additional assessment represents accruals of interest, accruals of penalties, or both.

Q-D2. Will a CDP hearing with respect to one tax period be combined with a CDP hearing with respect to another tax period?

A-D2. To the extent practicable, a CDP hearing with respect to one tax period shown on the NFTL will be combined with any and all other CDP hearings which the taxpayer has requested.

Q-D3. Will a CDP hearing under section 6320 be combined with a CDP hearing under section 6330?

A-D3. To the extent practicable, a CDP hearing under section 6320 will be held in conjunction with a CDP hearing under section 6330.

Q-D4. What is considered to be prior involvement by an employee or officer of Appeals with respect to the unpaid tax and tax period involved in the hearing?

A-D4. Prior involvement by an employee or officer of Appeals includes participation or involvement in an Appeals hearing (other than a CDP hearing held under either section 6320 or section 6330) that the taxpayer may have had with respect to the unpaid tax and tax periods shown on the NFTL.

Q-D5. How can a taxpayer waive the requirement that the officer or employee of Appeals have no prior involvement with respect to the tax and tax periods involved in the CDP hearing?

A-D5. The taxpayer must sign a written waiver.

Q-D6. How are CDP hearings conducted?

A-D6. The formal hearing procedures required under the Administrative Procedure Act, 5 U.S.C. 551 et seq., do not apply to CDP hearings. CDP hearings are much like Collection Appeal Program (CAP) hearings in that they are informal in nature and do not require the Appeals officer or employee and the taxpayer, or the taxpayer's representative, to hold a face-to-face meeting. A CDP hearing may, but is not required to, consist of a face-to-face meeting, one or more written or oral communications between an Appeals officer or employee and the taxpayer or the taxpayer's representative, or some combination thereof. A transcript or recording of any face-to-face meeting or conversation between an Appeals officer or employee and the taxpayer or the taxpayer's representative is not required. The taxpayer or the taxpayer's representative does not have the right to subpoena and examine witnesses at a CDP hearing.

Q-D7. If a taxpayer wants a face-to-face CDP hearing, where will it be held?

A-D7. The taxpayer must be offered an opportunity for a hearing at the Appeals office closest to taxpayer's residence or, in the case of business taxpayers, the taxpayer's principal place of business. If that is not satisfactory to the taxpayer, the taxpayer will be given an opportunity for a hearing by correspondence or by telephone. If that is not satisfactory to the taxpayer, the Appeals officer or employee will review the taxpayer's request for a CDP hearing, the case file, any other written communications from the taxpayer (including written communications, if any, submitted in connection with the CDP hearing), and any notes of any oral communications with the taxpayer or the taxpayer's representative. Under such circumstances, review of those documents will constitute the CDP hearing for the purposes of section 6320(b).

(e) Matters considered at CDP hearing

(1) In general. --Appeals has the authority to determine the validity, sufficiency, and timeliness of any CDP Notice given by the IRS and of any request for a CDP hearing that is made by a taxpayer. Prior to the issuance of a determination, the hearing officer is required to obtain verification from the IRS office collecting the tax or filing the NFTL that the requirements of any applicable law or administrative procedure have been met. The taxpayer may raise any relevant issue relating to the unpaid tax at the hearing, including appropriate spousal defenses, challenges to the appropriateness of the NFTL filing, and offers of collection alternatives. The taxpayer also may raise challenges to the existence or amount of the tax liability specified on the CDP Notice for any tax period shown on the CDP Notice if the taxpayer did not receive a statutory notice of deficiency for that tax liability or did not otherwise have an opportunity to dispute that tax liability. Finally, the taxpayer may not raise an issue that was raised and considered at a previous CDP hearing under section 6330 or in any other previous administrative or judicial proceeding if the taxpayer participated meaningfully in such hearing or proceeding. Taxpayers will be expected to provide all relevant information requested by Appeals, including financial statements, for its consideration of the facts and issues involved in the hearing.

(2) Spousal defenses. --A taxpayer may raise any appropriate spousal defenses at a CDP hearing unless the Commissioner has already made a final determination as to spousal defenses in a statutory notice of deficiency or final determination letter. To claim a spousal defense under section 66 or section 6015, the taxpayer must do so in writing according to rules prescribed by the Commissioner or the Secretary. Spousal defenses raised under sections 66 and 6015 in a CDP hearing are governed in all respects by the provisions of sections 66 and section 6015 and the regulations and procedures thereunder.

(3) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (e) as follows:

Q-E1. What factors will Appeals consider in making its determination?

A-E1. Appeals will consider the following matters in making its determination:

(i) Whether the IRS met the requirements of any applicable law or administrative procedure.

(ii) Any issues appropriately raised by the taxpayer relating to the unpaid tax.

(iii) Any appropriate spousal defenses raised by the taxpayer.

(iv) Any challenges made by the taxpayer to the appropriateness of the NFTL filing.

(v) Any offers by the taxpayer for collection alternatives.

(vi) Whether the continued existence of the filed NFTL represents a balance between the need for the efficient collection of taxes and the legitimate concern of the taxpayer that any collection action be no more intrusive than necessary.

Q-E2. When is a taxpayer entitled to challenge the existence or amount of the tax liability specified in the CDP Notice?

A-E2. A taxpayer is entitled to challenge the existence or amount of the tax liability specified in the CDP Notice if the taxpayer did not receive a statutory notice of deficiency for such liability or did not otherwise have an opportunity to dispute such liability. Receipt of a statutory notice of deficiency for this purpose means receipt in time to petition the Tax Court for a redetermination of the deficiency asserted in the notice of deficiency. An opportunity to dispute a liability includes a prior opportunity for a conference with Appeals that was offered either before or after the assessment of the liability.

Q-E3. Are spousal defenses subject to the limitations imposed under section 6330(c)(2)(B) on a taxpayer's right to challenge the tax liability specified in the CDP Notice at a CDP hearing?

A-E3. The limitations imposed under section 6330(c)(2)(B) do not apply to spousal defenses. When a taxpayer asserts a spousal defense, the taxpayer is not disputing the amount or existence of the liability itself, but asserting a defense to the liability which may or may not be disputed. A spousal defense raised under section 66 or section 6015 is governed by section 66 or section 6015 and the regulations and procedures thereunder. Any limitation under those sections, regulations, and procedures therefore will apply.

Q-E4. May a taxpayer raise at a CDP hearing a spousal defense under section 66 or section 6015 if that defense was raised and considered administratively and the Commissioner has issued a statutory notice of deficiency or final determination letter addressing the spousal defense?

A-E4. No. A taxpayer is precluded from raising a spousal defense at a CDP hearing when the Commissioner has made a final determination under section 66 or section 6015 in a final determination letter or statutory notice of deficiency. However, a taxpayer may raise spousal defenses in a CDP hearing when the taxpayer has previously raised spousal defenses, but the Commissioner has not yet made a final determination regarding this issue.

Q-E5. May a taxpayer raise at a CDP hearing a spousal defense under section 66 or section 6015 if that defense was raised and considered in a prior judicial proceeding that has become final?

A-E5. No. A taxpayer is precluded by the doctrine of res judicata and by the specific limitations under section 66 or section 6015 from raising a spousal defense in a CDP hearing under these circumstances.

Q-E6. What collection alternatives are available to the taxpayer?

A-E6. Collection alternatives would include, for example, a proposal to withdraw the NFTL in circumstances that will facilitate the collection of the tax liability, an installment agreement, an offer-in-compromise, the posting of a bond, or the substitution of other assets.

Q-E7. What issues may a taxpayer raise in a CDP hearing under section 6320 if the taxpayer previously received a notice under section 6330 with respect to the same tax and tax period and did not request a CDP hearing with respect to that notice?

A-E7. The taxpayer may raise appropriate spousal defenses, challenges to the appropriateness of the NFTL filing, and offers of collection alternatives. The existence or amount of the tax liability for the tax and tax period specified in the CDP Notice may be challenged only if the taxpayer did not already have an opportunity to dispute that tax liability. Where the taxpayer previously received a CDP Notice under section 6330 with respect to the same tax and tax period and did not request a CDP hearing with respect to that earlier CDP Notice, the taxpayer already had an opportunity to dispute the existence or amount of the underlying tax liability.

Q-E8. How will Appeals issue its determination?

A-E8. (i) Taxpayers will be sent a dated Notice of Determination by certified or registered mail. The Notice of Determination will set forth Appeals' findings and decisions. It will state whether the IRS met the requirements of any applicable law or administrative procedure; it will resolve any issues appropriately raised by the taxpayer relating to the unpaid tax; it will include a decision on any appropriate spousal defenses raised by the taxpayer; it will include a decision on any challenges made by the taxpayer to the appropriateness of the NFTL filing; it will respond to any offers by the taxpayer for collection alternatives; and it will address whether the continued existence of the filed NFTL represents a balance between the need for the efficient collection of taxes and the legitimate concern of the taxpayer that any collection action be no more intrusive than necessary. The Notice of Determination will also set forth any agreements that Appeals reached with the taxpayer, any relief given the taxpayer, and any actions the taxpayer or the IRS are required to take. Lastly, the Notice of Determination will advise the taxpayer of the taxpayer's right to seek judicial review within 30 days of the date of the Notice of Determination.

(ii) Because taxpayers are encouraged to discuss their concerns with the IRS office collecting the tax or filing the NFTL, certain matters that might have been raised at a CDP hearing may be resolved without the need for Appeals consideration. Unless, as a result of these discussions, the taxpayer agrees in writing to withdraw the request that Appeals conduct a CDP hearing, Appeals will still issue a Notice of Determination. The taxpayer can, however, waive in writing Appeals' consideration of some or all of the matters it would otherwise consider in making its determination.

Q-E9. Is there a period of time within which Appeals must conduct a CDP hearing or issue a Notice of Determination?

A-E9. No. Appeals will, however, attempt to conduct a CDP hearing and issue a Notice of Determination as expeditiously as possible under the circumstances.

Q-E10. Why is the Notice of Determination and its date important?

A-E10. The Notice of Determination will set forth Appeals' findings and decisions with respect to the matters set forth in A-E1 of this paragraph (e)(3). The 30-day period within which the taxpayer is permitted to seek judicial review of Appeals' determination commences the day after the date of the Notice of Determination.

Q-E11. If an Appeals officer considers the merits of a taxpayer's liability in a CDP hearing when the taxpayer had previously received a statutory notice of deficiency or otherwise had an opportunity to dispute the liability prior to the NFTL, will the Appeals officer's determination regarding those liability issues be considered part of the Notice of Determination?

A-E11. No. An Appeals officer may consider the existence and amount of the underlying tax liability as a part of the CDP hearing only if the taxpayer did not receive a statutory notice of deficiency for the tax liability in question or otherwise have a prior opportunity to dispute the tax liability. Similarly, an Appeals officer may not consider any other issue if the issue was raised and considered at a previous hearing under section 6330 or in any other previous administrative or judicial proceeding in which the person seeking to raise the issue meaningfully participated. In the Appeals officer's sole discretion, however, the Appeals officer may consider the existence or amount of the underlying tax liability, or such other precluded issues, at the same time as the CDP hearing. Any determination, however, made by the Appeals officer with respect to such a precluded issue shall not be treated as part of the Notice of Determination issued by the Appeals officer and will not be subject to any judicial review. Because any decisions made by the Appeals officer with respect to such precluded issues are not properly a part of the CDP hearing, such decisions are not required to appear in the Notice of Determination issued following the hearing. Even if a decision concerning such precluded issues is referred to in the Notice of Determination, it is not reviewable by a district court or the Tax Court because the precluded issue is not properly part of the CDP hearing.

(4) Examples. --The following examples illustrate the principles of this paragraph (e):

Example 1. The IRS sends a statutory notice of deficiency to the taxpayer at his last known address asserting a deficiency for the tax year 1995. The taxpayer receives the notice of deficiency in time to petition the Tax Court for a redetermination of the asserted deficiency. The taxpayer does not timely file a petition with the Tax Court. The taxpayer is precluded from challenging the existence or amount of the tax liability in a subsequent CDP hearing.

Example 2. Same facts as in Example 1, except the taxpayer does not receive the notice of deficiency in time to petition the Tax Court and did not have another prior opportunity to dispute the tax liability. The taxpayer is not precluded from challenging the existence or amount of the tax liability in a subsequent CDP hearing.

Example 3. The IRS properly assesses a trust fund recovery penalty against the taxpayer. The IRS offers the taxpayer the opportunity for a conference with Appeals at which the taxpayer would have the opportunity to dispute the assessed liability. The taxpayer declines the opportunity to participate in such a conference. The taxpayer is precluded from challenging the existence or amount of the tax liability in a subsequent CDP hearing.

(f) Judicial review of Notice of Determination

(1) In general. --Unless the taxpayer provides the IRS a written withdrawal of the request that Appeals conduct a CDP hearing, Appeals is required to issue a Notice of Determination in all cases where a taxpayer has timely requested a CDP hearing. The taxpayer may appeal such determinations made by Appeals within the 30-day period commencing the day after the date of the Notice of Determination to the Tax Court or a district court of the United States, as appropriate.

(2) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (f) as follows:

Q-F1. What must a taxpayer do to obtain judicial review of a Notice of Determination?

A-F1. Subject to the jurisdictional limitations described in A-F2, the taxpayer must, within the 30-day period commencing the day after the date of the Notice of Determination, appeal the determination by Appeals to the Tax Court or to a district court of the United States.

Q-F2. With respect to the relief available to the taxpayer under section 6015, what is the time frame within which a taxpayer may seek Tax Court review of Appeals' determination following a CDP hearing?

A-F2. If the taxpayer seeks Tax Court review not only of Appeals' denial of relief under section 6015, but also of relief requested with respect to other issues raised in the CDP hearing, the taxpayer should request Tax Court review within the 30-day period commencing the day after the date of the Notice of Determination. If the taxpayer only seeks Tax Court review of Appeals' denial of relief under section 6015, then the taxpayer should request Tax Court review, as provided by section 6015(e), within 90 days of Appeals' determination. If a request for Tax Court review is filed after the 30-day period for seeking judicial review under section 6320, then only the taxpayer's section 6015 claims may be reviewable by the Tax Court.

Q-F3. Where should a taxpayer direct a request for judicial review of a Notice of Determination?

A-F3. If the Tax Court would have jurisdiction over the type of tax specified in the CDP Notice (for example, income and estate taxes), then the taxpayer must seek judicial review by the Tax Court. If the tax liability arises from a type of tax over which the Tax Court would not have jurisdiction, then the taxpayer must seek judicial review by a district court of the United States in accordance with Title 28 of the United States Code.

Q-F4. What happens if the taxpayer timely appeals Appeals' determination to the incorrect court?

A-F4. If the court to which the taxpayer directed a timely appeal of the Notice of Determination determines that the appeal was to the incorrect court (because of jurisdictional, venue or other reasons), the taxpayer will have 30 days after the court's determination to that effect within which to file an appeal to the correct court.

Q-F5. What issue or issues may the taxpayer raise before the Tax Court or before a district court if the taxpayer disagrees with the Notice of Determination?

A-F5. In seeking Tax Court or district court review of Appeals' Notice of Determination, the taxpayer can only request that the court consider an issue that was raised in the taxpayer's CDP hearing.

(g) Effect of request for CDP hearing and judicial review on periods of limitation and collection activity

(1) In general. --The periods of limitation under section 6502 (relating to collection after assessment), section 6531 (relating to criminal prosecutions), and section 6532 (relating to suits) are suspended until the date the IRS receives the taxpayer's written withdrawal of the request for a CDP hearing by Appeals or the determination resulting from the CDP hearing becomes final by expiration of the time for seeking judicial review or the exhaustion of any rights to appeals following judicial review. In no event shall any of these periods of limitation expire before the 90th day after the date on which the IRS receives the taxpayer's written withdrawal of the request that Appeals conduct a CDP hearing or the determination with respect to such hearing becomes final upon either the expiration of the time for seeking judicial review or upon exhaustion of any rights to appeals following judicial review.

(2) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (g) as follows:

Q-G1. For what period of time will the periods of limitation under sections 6502, 6531, and 6532 remain suspended if the taxpayer timely requests a CDP hearing concerning the filing of a NFTL?

A-G1. The suspension period commences on the date the IRS receives the taxpayer's written request for a CDP hearing. The suspension period continues until the IRS receives a written withdrawal by the taxpayer of the request for a CDP hearing or the Notice of Determination resulting from the CDP hearing becomes final. In no event shall any of these periods of limitation expire before the 90th day after the day on which the IRS receives the taxpayer's written withdrawal of the request that Appeals conduct a CDP hearing or there is a final determination with respect to such hearing. The periods of limitation that are suspended under section 6320 are those which apply to the taxes and the tax period or periods to which the CDP Notice relates.

Q-G2. For what period of time will the periods of limitation under sections 6502, 6531, and 6532 be suspended if the taxpayer does not request a CDP hearing concerning the filing of a NFTL, or the taxpayer requests a CDP hearing, but his request is not timely?

A-G2. Under either of these circumstances, section 6320 does not provide for a suspension of the periods of limitation.

Q-G3. What, if any, enforcement actions can the IRS take during the suspension period?

A-G3. Section 6330(e), made applicable to section 6320 CDP hearings by section 6320(c), provides for the suspension of the periods of limitation discussed in paragraph (g)(1) of these regulations. Section 6330(e) also provides that levy actions that are the subject of the requested CDP hearing under that section shall be suspended during the same period. Levy actions, however, are not the subject of a CDP hearing under section 6320. The IRS may levy for tax periods and taxes covered by the CDP Notice under section 6320 and for other taxes and periods if the CDP requirements under section 6330 for those taxes and periods have been satisfied. The IRS also may file NFTLs for tax periods or taxes not covered by the CDP Notice, may file a NFTL for the same tax and tax period stated on the CDP Notice at another recording office, and may take other non-levy collection actions such as initiating judicial proceedings to collect the tax shown on the CDP Notice or offsetting overpayments from other periods, or of other taxes, against the tax shown on the CDP Notice. Moreover, the provisions in section 6330 do not apply when the IRS levies for the tax and tax period shown on the CDP Notice to collect a state tax refund due the taxpayer, or determines that collection of the tax is in jeopardy. Finally, section 6330 does not prohibit the IRS from accepting any voluntary payments made for the tax and tax period stated on the CDP Notice.

(3) Examples. --The following examples illustrate the principles of this paragraph (g):

Example 1. The period of limitation under section 6502 with respect to the taxpayer's tax period listed in the NFTL will expire on August 1, 1999. The IRS sent a CDP Notice to the taxpayer on April 30, 1999. The taxpayer timely requested a CDP hearing. The IRS received this request on May 15, 1999. Appeals sends the taxpayer its determination on June 15, 1999. The taxpayer timely seeks judicial review of that determination. The period of limitation under section 6502 would be suspended from May 15, 1999, until the determination resulting from that hearing becomes final by expiration of the time for seeking review or reconsideration before the appropriate court, plus 90 days.

Example 2. Same facts as in Example 1, except the taxpayer does not seek judicial review of Appeals' determination. Because the taxpayer requested the CDP hearing when fewer than 90 days remained on the period of limitation, the period of limitation will be extended to October 13, 1999 (90 days from July 15, 1999).

(h) Retained jurisdiction of Appeals

(1) In general. --The Appeals office that makes a determination under section 6320 retains jurisdiction over that determination, including any subsequent administrative hearings that may be requested by the taxpayer regarding the NFTL and any collection actions taken or proposed with respect to Appeals' determination. Once a taxpayer has exhausted his other remedies, Appeals' retained jurisdiction permits it to consider whether a change in the taxpayer's circumstances affects its original determination. Where a taxpayer alleges a change in circumstances that affects Appeals' original determination, Appeals may consider whether changed circumstances warrant a change in its earlier determination.

(2) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (h) as follows:

Q-H1. Are the periods of limitation suspended during the course of any subsequent Appeals consideration of the matters raised by a taxpayer when the taxpayer invokes the retained jurisdiction of Appeals under section 6330(d)(2)(A) or (d)(2)(B)?

A-H1. No. Under section 6320(b)(2), a taxpayer is entitled to only one CDP hearing under section 6320 with respect to the tax and tax period or periods specified in the CDP Notice. Any subsequent consideration by Appeals pursuant to its retained jurisdiction is not a continuation of the original CDP hearing and does not suspend the periods of limitation.

Q-H2. Is a decision of Appeals resulting from a retained jurisdiction hearing appealable to the Tax Court or a district court?

A-H2. No. As discussed in A-H1, a taxpayer is entitled to only one CDP hearing under section 6320 with respect to the tax and tax period or periods specified in the CDP Notice. Only determinations resulting from CDP hearings are appealable to the Tax Court or a district court.

(i) Equivalent hearing

(1) In general. --A taxpayer who fails to make a timely request for a CDP hearing is not entitled to a CDP hearing. Such a taxpayer may nevertheless request an administrative hearing with Appeals, which is referred to herein as an "equivalent hearing." The equivalent hearing will be held by Appeals and generally will follow Appeals' procedures for a CDP hearing. Appeals will not, however, issue a Notice of Determination. Under such circumstances, Appeals will issue a Decision Letter.

(2) Questions and answers. --The questions and answers illustrate the provisions of this paragraph (i) as follows:

Q-I1. What issues will Appeals consider at an equivalent hearing?

A-I1. In an equivalent hearing, Appeals will consider the same issues that it would have considered at a CDP hearing on the same matter.

Q-I2. Are the periods of limitation under sections 6502, 6531, and 6532 suspended if the taxpayer does not timely request a CDP hearing and is subsequently given an equivalent hearing?

A-I2. No. The suspension period provided for in section 6330(e) relates only to hearings requested within the 30-day period that commences on the day after the end of the five business day period following the filing of the NFTL, that is, CDP hearings.

Q-I3. Will collection action, including the filing of additional NFTLs, be suspended if a taxpayer requests and receives an equivalent hearing?

A-I3. Collection action is not required to be suspended. Accordingly, the decision to take collection action during the pendency of an equivalent hearing will be determined on a case-by-case basis. Appeals may request the IRS office with responsibility for collecting the taxes to suspend all or some collection action or to take other appropriate action if it determines that such action is appropriate or necessary under the circumstances.

Q-I4. What will the Decision Letter state?

A-I4. The Decision Letter will generally contain the same information as a Notice of Determination.

Q-I5. Will a taxpayer be able to obtain court review of a decision made by Appeals with respect to an equivalent hearing?

A-I5. Section 6320 does not authorize a taxpayer to appeal the decision of Appeals with respect to an equivalent hearing. A taxpayer may under certain circumstances be able to seek Tax Court review of Appeals' denial of relief under section 6015. Such review must be sought within 90 days of the issuance of Appeals' determination on those issues, as provided by section 6015(e).

(j) Effective date. --This section is applicable with respect to any filing of a NFTL on or after January 19, 1999. [Reg. §301.6320-1.]

.01 Historical Comment: Proposed 1/22/99. Adopted 1/17/2002 by T.D. 8979.

Notice and opportunity for hearing upon filing of notice of federal tax lien,REG-150088-02, 9/16/2005.

Par. 2. Section 301.6320-1 is proposed to be amended as follows:

1. Paragraph (c)(2) A-C1, Q&A-C6 and A-C7 are revised.

2. Paragraph (d)(2) A-D4 and A-D7 are revised.

3. Paragraph (d)(2) Q&A-D8 is added.

4. Paragraph (d)(3) is added.

5. Paragraph (e)(1) is revised.

6. Paragraph (e)(3) A-E2, A-E6 and A-E7 are revised.

7. Paragraph (f)(2) A-F5 is revised.

8. Paragraph (f)(2) Q&A-F6 is added.

9. Paragraph (i)(2)Q&A-I1 through Q&A-I5 are renumbered Q&A-I2 through Q&A-I6, a new paragraph (i)(2)Q&A-I1 and new paragraphs Q&A-I7 through Q&A-I11 are added.

10. Paragraph (j) is revised.

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(2) * * *

A-C1. (i) The taxpayer must make a request in writing for a CDP hearing. The request for a CDP hearing shall include the information specified in A-C1(ii) of this paragraph (c)(2). See A-D7 and A-D8 of paragraph (d)(2).

(ii) The written request for a CDP hearing must be dated and must include the following information:

(A) The taxpayer's name, address, daytime telephone number (if any), and taxpayer identification number (SSN or EIN).

(B) The type of tax involved.

(D) A statement that the taxpayer requests a hearing with Appeals concerning the filing of the NFTL.

(E) The reason or reasons why the taxpayer disagrees with the filing of the NFTL.

(F) The signature of the taxpayer or the taxpayer's authorized representative.

(iii) The taxpayer must perfect any timely written request for a CDP hearing that does not provide the required information set forth in A-C1(ii) of this paragraph within a reasonable period of time after a request from the IRS.

(iv) Taxpayers are encouraged to use a Form 12153, "Request for a Collection Due Process Hearing," in requesting a CDP hearing so that the request can be readily identified and forwarded to Appeals. Taxpayers may obtain a copy of Form 12153 by contacting the IRS office that issued the CDP Notice, by downloading a copy from the IRS Internet site, www.irs.gov/pub/irs-pdf/f12153.pdf, or by calling, toll-free, 1-800-829-3676.

(v) The taxpayer must affirm any timely written request for a CDP hearing which is signed or alleged to have been signed on the taxpayer's behalf by the taxpayer's spouse or other unauthorized representative by filing, within a reasonable period of time after a request from the IRS, a signed, written affirmation that the request was originally submitted on the taxpayer's behalf. If the affirmation is not filed within a reasonable period of time after a request, the CDP hearing request will be denied with respect to the non-signing taxpayer.

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Q-C6. Where must the written request for a CDP hearing be sent?

A-C6. The written request for a CDP hearing must be sent, or hand delivered (if permitted), to the IRS office and address as directed on the CDP Notice. If the address of that office does not appear on the CDP Notice, the taxpayer should obtain the address of the office to which the written request should be sent or hand delivered by calling, toll-free, 1-800-829-1040 and providing the taxpayer's identification number (SSN or TIN).

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A-C7. If the taxpayer does not request a CDP hearing in writing within the 30-day period that commences on the day after the end of the five business day notification period, the taxpayer foregoes the right to a CDP hearing under section 6320 with respect to the unpaid tax and tax periods shown on the CDP Notice. If the request for CDP hearing is received after the 30-day period, the taxpayer will be notified of the untimely request and of the right to an equivalent hearing. See paragraph (i) of this section.

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(d) * * *

(2) * * *

A-D4. Prior involvement by an Appeals officer or employee includes participation or involvement in an Appeals hearing (other than a CDP hearing held under either section 6320 or section 6330) that the taxpayer may have had with respect to the tax and tax period shown on the CDP Notice. Prior involvement exists only when the taxpayer, the tax liability and the tax period at issue in the CDP hearing also were at issue in the prior non-CDP hearing or proceeding, and the Appeals officer or employee actually participated in the prior hearing or proceeding.

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A-D7. Except as provided in A-D8 of this paragraph (d)(2), a taxpayer who presents in the CDP hearing request relevant, non-frivolous reasons for disagreement with the NFTL filing will ordinarily be offered an opportunity for a face-to-face conference at the Appeals office closest to taxpayer's residence. A business taxpayer will ordinarily be offered an opportunity for a face-to-face conference at the Appeals office closest to the taxpayer's principal place of business. If that is not satisfactory to the taxpayer, the taxpayer will be given an opportunity for a hearing by telephone or by correspondence. In all cases, the Appeals officer or employee will review the case file, which includes the taxpayer's request for a CDP hearing, any other written communications from the taxpayer or the taxpayer's authorized representative, and any notes made by Appeals officers or employees of any oral communications with the taxpayer or the taxpayer's authorized representative. If no face-to-face or telephonic conference or correspondence hearing is held, review of those documents will constitute the CDP hearing for purposes of section 6320(b).

Q-D8. In what circumstances will a face-to-face CDP conference not be granted?

A-D8. A taxpayer is not entitled to a face-to-face CDP conference at a location other than as provided in A-D7 of this paragraph (d)(2) and this A-D8. If all Appeals officers or employees at the location provided for in A-D7 of this paragraph have had prior involvement with the taxpayer as provided in A-D4 of this paragraph, the taxpayer will not be offered a face-to-face meeting at that location, unless the taxpayer elects to waive the requirement of section 6320(b)(3). The taxpayer will be offered a face-to-face conference at another Appeals office if Appeals in the exercise of its discretion would have offered the taxpayer a face-to-face conference at the location provided in A-D7. A face-to-face CDP conference concerning a taxpayer's underlying liability will not be granted if the request for a hearing or other taxpayer communication indicates that the taxpayer wishes only to raise irrelevant or frivolous issues concerning that liability. A face-to-face CDP conference concerning a collection alternative, such as an installment agreement or an offer to compromise liability, will not be granted unless the alternative would be available to other taxpayers in similar circumstances. For example, because the IRS does not consider offers to compromise from taxpayers who have not filed required returns or have not made certain required deposits of tax, as set forth in Form 656, "Offer in Compromise," no face-to-face conference will be offered to a taxpayer who wishes to make an offer to compromise but has not fulfilled those obligations. A face-to-face conference need not be granted if the taxpayer does not provide the required information set forth in A-C1(ii)(E) of paragraph (c)(2). See also A-C1(iii) of paragraph (c)(2).

(3) Examples. --The following examples illustrate the principles of this paragraph (d):

Example 1. Individual A timely requests a CDP hearing concerning a NFTL filed with respect to A's 1998 income tax liability. Appeals employee B previously conducted a CDP hearing regarding a proposed levy for the 1998 income tax liability assessed against individual A. Because employee B's only prior involvement with individual A's 1998 income tax liability was in connection with a section 6330 CDP hearing, employee B may conduct the CDP hearing under section 6320 involving the NFTL filed for the 1998 income tax liability.

Example 2. Individual C timely requests a CDP hearing concerning a NFTL filed with respect to C's 1998 income tax liability assessed against individual C. Appeals employee D previously conducted a Collection Appeals Program (CAP) hearing regarding a NFTL filed with respect to C's 1998 income tax liability. Because employee D(s prior involvement with individual C's 1998 income tax liability was in connection with a non-CDP hearing, employee D may not conduct the CDP hearing under section 6320 unless individual C waives the requirement that the hearing will be conducted by an Appeals officer or employee who has had no prior involvement with respect to C's 1998 income tax liability.

Example 3. Same facts as in Example 2, except that the prior CAP hearing only involved individual C's 1997 income tax liability and employment tax liabilities for 1998 reported on Form 941. Employee D would not be considered to have prior involvement because the prior CAP hearing in which she participated did not involve individual C's 1998 income tax liability.

Example 4. Appeals employee F is assigned to a CDP hearing concerning a NFTL filed with respect to a trust fund recovery penalty (TFRP) assessed pursuant to section 6672 against individual E. Appeals employee F participated in a prior CAP hearing involving individual E's 1999 income tax liability, and participated in a CAP hearing involving the employment taxes of business entity X, which incurred the employment tax liability to which the TFRP assessed against individual E relates. Appeals employee F would not be considered to have prior involvement because the prior CAP hearings in which he participated did not involve the TFRP assessed against individual E.

Example 5. Appeals employee G is assigned to a CDP hearing concerning a NFTL filed with respect to a TFRP assessed pursuant to section 6672 against individual H. In preparing for the CDP hearing, Appeals employee G reviews the Appeals case file concerning the prior CAP hearing involving the TFRP assessed pursuant to section 6672 against individual H. Appeals employee G is not deemed to have participated in the previous CAP hearing involving the TFRP assessed against individual H by such review.

(e) Matters considered at CDP hearing

(1) In general. --Appeals has the authority to determine the validity, sufficiency, and timeliness of any CDP Notice given by the IRS and of any request for a CDP hearing that is made by a taxpayer. Prior to issuance of a determination, Appeals is required to obtain verification from the IRS office collecting the tax that the requirements of any applicable law or administrative procedure have been met. The taxpayer may raise any relevant issue relating to the unpaid tax at the hearing, including appropriate spousal defenses, challenges to the appropriateness of the NFTL filing, and offers of collection alternatives. The taxpayer also may raise challenges to the existence or amount of the underlying liability for any tax period specified on the CDP Notice if the taxpayer did not receive a statutory notice of deficiency for that tax liability or did not otherwise have an opportunity to dispute the tax liability. Finally, the taxpayer may not raise an issue that was raised and considered at a previous CDP hearing under section 6330 or in any other previous administrative or judicial proceeding if the taxpayer participated meaningfully in such hearing or proceeding. Taxpayers will be expected to provide all relevant information requested by Appeals, including financial statements, for its consideration of the facts and issues involved in the hearing.

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(3) * * *

A-E2. A taxpayer is entitled to challenge the existence or amount of the underlying liability for any tax period specified on the CDP Notice if the taxpayer did not receive a statutory notice of deficiency for such liability or did not otherwise have an opportunity to dispute such liability. Receipt of a statutory notice of deficiency for this purpose means receipt in time to petition the Tax Court for a redetermination of the deficiency determined in the notice of deficiency. An opportunity to dispute the underlying liability includes a prior opportunity for a conference with Appeals that was offered either before or after the assessment of the liability.

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A-E6. Collection alternatives include, for example, a proposal to withdraw the NFTL in circumstances that will facilitate the collection of the tax liability, an installment agreement, an offer to compromise, the posting of a bond, or the substitution of other assets. A collection alternative is not available unless the alternative would be available to other taxpayers in similar circumstances. For example, the IRS does not consider an offer to compromise made by a taxpayer who, at the time of the CDP hearing, has not filed required returns or has not made certain required deposits of tax, as set forth in Form 656, "Offer in Compromise." The collection alternative of an offer to compromise would not be available to such a taxpayer in a CDP hearing.

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A-E7. The taxpayer may raise appropriate spousal defenses, challenges to the appropriateness of the NFTL filing, and offers of collection alternatives. The existence or amount of the underlying liability for any tax period specified in the CDP Notice may be challenged only if the taxpayer did not already have an opportunity to dispute the tax liability. If the taxpayer previously received a CDP Notice under section 6330 with respect to the same tax and tax period and did not request a CDP hearing with respect to that earlier CDP Notice, the taxpayer has already had an opportunity to dispute the existence or amount of the underlying tax liability.

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(f) * * *

(2) * * *

A-F5. In seeking Tax Court or district court review of a Notice of Determination, the taxpayer can only ask the court to consider an issue, including a challenge to the underlying tax liability, that was properly raised in the taxpayer's CDP hearing. An issue is not properly raised if the taxpayer fails to request consideration of the issue by Appeals, or if consideration is requested but the taxpayer fails to present to Appeals any evidence with respect to that issue after being given a reasonable opportunity to present such evidence.

Q-F6. What is the administrative record for purposes of court review?

A-F6. The case file, including written communications and information from the taxpayer or the taxpayer's authorized representative submitted in connection with the CDP hearing, notes made by an Appeals officer or employee of any oral communications with the taxpayer or the taxpayer's authorized representative and memoranda created by the Appeals officer or employee in connection with the CDP hearing, and any other documents or materials relied upon by the Appeals officer or employee in making the determination under section 6330(c)(3), will constitute the record in any court review of the Notice of Determination issued by Appeals.

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(i) * * *

(2) * * *

Q-I1. What must a taxpayer do to obtain an equivalent hearing?

A-I1. (i) A request for an equivalent hearing must made be in writing. A written request in any form that requests an equivalent hearing will be acceptable if it includes the information required in paragraph (ii) of this A-I1.

(ii) The request must be dated and must include the following information:

(A) The taxpayer's name, address, daytime telephone number (if any), and taxpayer identification number (SSN or EIN).

(B) The type of tax involved.

(D) A statement that the taxpayer is requesting an equivalent hearing with Appeals concerning the filing of the NFTL.

(E) The reason or reasons why the taxpayer disagrees with the filing of the NFTL.

(F) The signature of the taxpayer or the taxpayer's authorized representative.

(iii) The taxpayer must perfect any timely written request for an equivalent hearing that does not provide the required information set forth in paragraph (ii) of this A-I1 within a reasonable period of time after a request from the IRS. If the requested information is not provided within a reasonable period of time, the taxpayer's equivalent hearing request will be denied.

(iv) The taxpayer must affirm any timely written request for an equivalent hearing that is signed or alleged to have been signed on the taxpayer's behalf by the taxpayer's spouse or other unauthorized representative, and that otherwise meets the requirements set forth in paragraph (ii) of this A-I1, by the taxpayer's spouse or any other representative, by filing, within a reasonable time after a request from the IRS, a signed written affirmation that the request was originally submitted on the taxpayer's behalf. If the affirmation is not filed within a reasonable period of time, the equivalent hearing request will be denied with respect to the non-signing taxpayer.

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Q-I7. When must a taxpayer request an equivalent hearing with respect to a CDP Notice issued under section 6320?

A-I7. A taxpayer must submit a written request for an equivalent hearing within the one-year period commencing the day after the end of the five-business-day period following the filing of the NFTL. This period is slightly different from the period for submitting a written request for an equivalent hearing with respect to a CDP Notice issued under section 6330. For a CDP Notice issued under section 6330, a taxpayer must submit a written request for an equivalent hearing within the one-year period commencing the day after the date of the CDP Notice issued under section 6330.

Q-I8. How will the timeliness of a taxpayer's written request for an equivalent hearing be determined?

A-I8. The rules and regulations under section 7502 and section 7503 will apply to determine the timeliness of the taxpayer's request for an equivalent hearing, if properly transmitted and addressed as provided in A-I10 of this paragraph (i)(2).

Q-I9. Is the one-year period within which a taxpayer must make a request for an equivalent hearing extended because the taxpayer resides outside the United States?

A-I9. No. All taxpayers who want an equivalent hearing concerning the filing of the NFTL must request the hearing within the one-year period commencing the day after the end of the five-business-day period following the filing of the NFTL.

Q-I10. Where must the written request for an equivalent hearing be sent?

A-I10. The written request for an equivalent hearing must be sent, or hand delivered (if permitted), to the IRS office and address as directed on the CDP Notice. If the address of the issuing office does not appear on the CDP Notice, the taxpayer should obtain the address of the office to which the written request should be sent or hand delivered by calling, toll-free, 1-800-829-1040 and providing the taxpayer's identification number (SSN or EIN).

Q-I11. What will happen if the taxpayer does not request an equivalent hearing in writing within the one-year period commencing the day after the end of the five-business-day period following the filing of the NFTL?

A-I11. If the taxpayer does not request an equivalent hearing with Appeals within the one-year period commencing the day after the end of the five-business-day period following the filing of the NFTL, the taxpayer foregoes the right to an equivalent hearing with respect to the unpaid tax and tax periods shown on the CDP Notice. The taxpayer, however, may seek reconsideration by the IRS office collecting the tax, assistance from the National Taxpayer Advocate, or an administrative hearing before Appeals under its Collection Appeals Program or any successor program.

***

(j) Effective date. This section is applicable the date 30 days after final regulations are published in the Federal Register with respect to requests made for CDP hearings or equivalent hearings on or after the date 30 days after final regulations are published in the Federal Register.

Liens: Synopsis - property subject to lien

After a tax has been assessed and a demand for payment has been made upon the taxpayer, a lien arises in favor of the United States upon all real and personal property of the delinquent until the tax is paid.

A federal tax lien applies to property owned by a delinquent taxpayer at any time during the lifetime of the lien. This includes property acquired after the lien arose (Reg. §301.6321-1).

Whether property or a property interest is owned by a delinquent taxpayer and thus can be subjected to the federal tax lien is a matter governed by state rather than federal law (Aquilino, 61-2 USTC ¶9571, at ¶38,136.40; Durham Lumber Co., SCt, 60-2 USTC ¶9539, at ¶38,160.938).

However, once it is determined that a delinquent taxpayer has an interest in property, federal law and not state law controls whether the property will be exempt from attachment. For example, in L. Rodgers, (SCt, 83-1 USTC ¶9374, at ¶41,653.40), the Supreme Court remanded a decision for a consideration by the trial court to determine whether a homesteaded residence could be sold to satisfy a husband's tax obligations. Since the wife also had an interest in the property, the district court was to consider the following four factors and any other factors that it deemed relevant:

(1) the extent to which the government's financial interest would be prejudiced if only the partial interest actually liable for the delinquent taxes were subject to a forced sale;

(2) whether the "innocent" third party (in this case, the widow) would, in the normal course of events, have a "legally recognized expectation" that his or her interest would not be subject to a forced sale by the delinquent taxpayer or his or her creditors;

(3) the likely prejudice to the third party both in personal dislocation costs and in the possibility that the compensation could prove to be inadequate; and

(4) the relative character and value of the liable and nonliable interests (for example, in the case of realty, whether the third party had a possessory interest).

In S.L. Craft (2002-1 USTC ¶50,361, at ¶38,136.66), the Supreme Court held that a federal tax lien can attach to real property exempt from the reach of creditors under state law. The Court ruled that a federal tax lien attached to property held by a delinquent taxpayer as a tenant by the entirety, despite historical treatment to the contrary. The IRS has issued Notice 2003-60 (I.R.B. 2003-39) to provide guidance (in light of the Craft decision) on collection from property held in a tenancy by the entirety, where only one spouse is liable for the outstanding taxes.

SECTION 6321 OF THE INTERNAL REVENUE CODE - LIEN FOR TAXES

If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.

Lien for taxes. --If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, tangible or intangible, belonging to such person. For purposes of section 6321 and this section, the term "any tax" shall include a State individual income tax which is a "qualified tax", as defined in paragraph (b) of §301.6361-4. The lien attaches to all property and rights to property belonging to such person at any time during the period of the lien, including any property or rights to property acquired by such person after the lien arises. Solely for purposes of sections 6321 and 6331, any interest in restricted land held in trust by the United States for an individual noncompetent Indian (and not for a tribe) shall not be deemed to be property, or a right to property, belonging to such Indian. For the method of allocating amounts collected pursuant to a lien between the Federal Government and a State or States imposing a qualified tax with respect to which the lien attached, see paragraph (f) of §301.6361-1. For the special lien for estate and gift taxes, see section 6324 and §301.6324-1. [Reg. §301.6321-1.]

When Lien Begins and Ends: Synopsis - period of lien

Code Sec. 6322 provides that the lien imposed by Sec. 6321 arises at the time the tax is assessed, unless another date is specifically fixed by law, and continues until the amount assessed (or a judgment against the taxpayer arising out of such liability) is paid or becomes unenforceable because of lapse of time. "Lapse of time" means 10 years from the date of assessment (or a longer period if the taxpayer waives restrictions on collection), during which the IRS has not attempted to collect the tax either by suit or distraint (Code Sec. 6502(a)).

When a tax assessment has been reduced to judgment, the federal tax lien continues until the underlying tax liability is satisfied or the 10-year collection period expires. Thus, the government does not lose its priority, vis-à-vis competing creditors, and the government can enforce the tax lien during the 10-year collection period (by levy and sale) and is not forced to collect under the judgment. For levies issued after November 10, 1988, if a timely proceeding in court is commenced for the collection of tax, the period during which the tax may be collected by levy shall be extended and shall not expire as long as the tax is collectible (Code Sec. 6502(a)).

The IRS has three years from the date the original return was filed to make an assessment or to start proceedings in court without assessment. For assessment purposes, a return filed before the due date is considered to have been filed on the due date.

SECTION 6322 OF THE INTERNAL REVENUE CODE - PERIOD OF LIEN

Unless another date is specifically fixed by law, the lien imposed by section 6321 shall arise at the time the assessment is made and shall continue until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time.

Validity and Priority Against Third Parties: Synopsis - priority of tax liens

A constant source of conflict has been the never-ending clash between the relative priorities of federal tax liens and the interests of other competing creditors (both state and private) in the property of a delinquent taxpayer.

To establish a priority of liens, the Supreme Court established the rule that a competing creditor's lien must first be "choate" before it could be accorded any priority over the federal tax lien (Security Trust and Savings Bank, SCt, 50-2 USTC ¶9492, at ¶38,160.78). To successfully meet the "choateness" requirement, the identity of the lienor, the property subject to the lien, and the amount of the lien had to be specifically established. Property subject to a lien on "all of the debtor's after-acquired property" does not become established until the property is actually acquired by the debtor (B.J. McDermott, SCt, 93-1 USTC ¶50,164, at ¶38,160.78). Thus, a creditor's lien on "all of a debtor's after-acquired" property will not take priority over a tax lien against the debtor that is filed before the debtor actually acquires such property. A tax lien cannot be filed until after the tax is assessed. The creditor's lien does not attach to the property until the debtor acquires the property. If a competing federal tax lien has been filed by that time, the creditor's lien cannot be first in time or take priority. Although the same can be said of the federal tax lien in such a case, in a contest between such a creditor and the federal government, the filing of notice renders the federal tax lien extant for "first in time" priority purposes regardless of whether it has yet attached to identifiable property. Until these requirements were met, mechanic's lienors, mortgagees, state tax lienors, contract purchasers and commercial financiers (who were obligated to loan money after a federal tax lien was filed or who obtained security in property acquired after tax lien filing) were prevented from fully protecting their interests as against federal tax liens, even though such interests were fully perfected under state law.

The Federal Tax Lien Act of 1966 (P.L. 89-719) was enacted to reduce priority problems, such as choateness, faced by certain creditors, several of whom (such as judgment lien creditors, purchasers, pledgees, and mortgagees) were protected under prior lien law against unfiled tax liens. It also expands the list of interests that are accorded superpriority status and gives several additional creditor interests new priority status. And the Act also specifically takes into account the types of security interests which are recognized under modern commercial laws, such as the Uniform Commercial Code, adopted by all states except Louisiana.

Validity and Priority Against Third Parties: Priorities: Interests having priority over tax liens

After a tax has been assessed, the amount of tax is a lien in favor of the United States, until payment is made, on all the personal and real property of the tax delinquent. Once recorded (under the rules described at ¶38,160.0754), the federal tax lien takes priority over subsequent holders of security interests, mechanic's lienors, purchasers, or judgment lien creditors, except as to interests given superpriority status (¶38,160.03 --¶38,160.038), security interests in commercial transactions financing agreements (¶38,160.04 --¶38,160.0415), and certain disbursements with respect to security interests (¶38,160.043).

The Federal Tax Lien Act of 1966 (P.L. 89-719) greatly improved the standing of private secured creditors by specifically defining their particular interests (Code Sec. 6323(h)) and providing that, where those interests qualify under the general definitions, they are to be accorded priority status, whether or not they are in all other respects definite and complete at the time notice of the federal tax lien is filed. Form 668-A(C)DO, Notice of Levy, is used to levy property that a third party is holding (Internal Revenue Manual IRM 5.11 ch 2.1.1, 5-5-98, CCH INTERNAL REVENUE MANUAL --ADMINISTRATION). Once it is filed, it will be valid notwithstanding any other provision in the law regarding the form or content of a notice of lien (Reg. §301.6323(f)-1(d)(1)). Thus, even if state law requires a notice to contain a description of the property subject to a lien, an omission of a description will not affect the validity of a valid federal tax lien. Such notice may be filed on a paper Form 668-A(C). However, where state law permits, it may also be filed by the use of an electronic or magnetic medium (Reg. §301.6323(f)-1(d)(2)).

Validity and Priority Against Third Parties: Priorities: Purchasers

Although purchasers were protected from nonfiled tax liens under prior law, there was some controversy as to who was a purchaser. Some Court decisions (such as Enochs v. Smith, CA-5, 66-1 USTC ¶9378, at ¶38,160.109) gave "purchaser" status to those who paid a price that was so small that it had little or no relation to the value of the property. Code Sec. 6323(h)(6) now requires that a person pay adequate and full consideration in order to be a purchaser. Although such a requirement changes the result reached in the Smith case, it does not preclude a bona fide bargain purchaser from qualifying. In addition, the interest acquired (which may not be a lien or security interest) must be valid under state law as against subsequent purchasers without actual notice. Persons who acquire a lease on property, enter into an executory contract to purchase or lease, or have an option to purchase or lease (or to renew a lease) are considered purchasers.

Example:

Young purchased a house on contract from Brown on December 1, Year 1, for $100,000. Young made a $10,000 down-payment and agreed to make payments of $900 per month, with the deed to be delivered on the date final payment was made. Young takes possession, begins making the payments, and takes the necessary steps under state law to protect his interest in the house from subsequent purchasers without notice. The Government files notice of a $20,000 tax lien against Brown on June 1, Year 2. Since Young has entered into a written executory contract to purchase the property and has protected his interest under local law, he qualifies as a purchaser even though he has not received the deed to the property, and his interest is protected from the Government's tax lien.

Validity and Priority Against Third Parties: Priorities: Security interests

Holders of security interests are given priority over nonfiled federal tax liens (Code Sec. 6323(a) and Code Sec. 6323(h)(1)).

A security interest takes on approximately the same definition as that term has in the Uniform Commercial Code. A holder of a security interest includes a person who acquires an interest in property by contract for the purpose of securing payment or performance of an obligation or as indemnification against loss or liability. Thus mortgagees and pledgees, who were explicitly accorded the same priority status under prior law, are included in the new Act as holders of security interests. In determining this priority, a security interest arises when the property is in existence and the interest is protected under local law against a later judgment arising out of an unsecured obligation. However, a holder of a security interest is protected only to the extent that he has parted with money or money's worth at that time. His security interest will not have priority (unless it is accorded superpriority status).

Priorities: Mechanic's lienors

Mechanic's lienors have priority over nonfiled federal tax liens (Code Sec. 6323(a)). A mechanic's lienor is a person who, under state law, has a lien on real property for furnishing services, labor, or material in connection with the construction or improvement of the property. For purposes of priority, a mechanic's lien is effective at the earliest date the lien becomes valid under state law, but not before services are commenced on the property (Code Sec. 6323(h)(2)).

Example:

On December 1, Year 1, Johnson contracts with Long to build a $10,000 addition to Long's house. Under the law of State X, where Long lives, Johnson would have a mechanic's lien for the contract price on December 1, the contract date. The Government files notice of a tax lien against Long on December 15. Johnson begins to build the addition on January 16, Year 2. Even though Johnson's lien is perfected under state law prior to the filing of the federal tax lien, he is not entitled to priority over the filed federal tax lien until January 16, the date he begins to build the addition. Thus, the federal tax lien takes priority. If, however, Johnson began to build the addition on December 14, Year 1, his lien would be entitled to priority.

If a federal tax lien is filed before the mechanic's lien arises under state law, or state law gives a mechanic's lien a state superpriority over all other pre-existing liens against the property, a mechanic's lienor may still be able to protect his interest if he meets the requirements of the limited superpriority.

Validity and Priority Against Third Parties: Priorities: Actual notice or knowledge

Under various provisions of Code Sec. 6323, a priority or superpriority status will be lost where an organization performs an act (such as making a loan, for example) after it has "actual notice or knowledge" of the existence of a federal tax lien.

For purposes of a particular transaction, an organization has actual notice or knowledge of a particular fact from the time such fact is brought to the attention of the individual conducting the transaction, and in any event from the time such fact would have been brought to that individual's attention if the organization had exercised due diligence. The individual acting for the organization is not required to communicate information unless such communication is part of his regular duties or unless he knows of the transaction and that the information will materially affect the transaction (Code Sec. 6323(i)(1)).
Example:

Frank, a depositor, applies for a passbook loan from the Ridge Savings Association. Smith, a loan officer for Ridge who handles Frank's loan application, fails to consult, before he grants the loan, a regular monthly interdepartmental communication listing depositors against whom federal tax liens have been filed. Frank is listed on the memorandum. Ridge is deemed to have actual notice or knowledge of the lien and is thus not entitled to the superpriority status

Code Sec. 6321(a) provides that the statutory tax lien imposed by Code Sec. 6321(a) is not be valid against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice of the lien has been filed. The IRS has ruled that for purposes of Code Sec. 6323(a)), a purchaser, holder of a security interest, mechanic's lienor or judgment lien creditor is protected against a statutory tax lien for which a notice of federal tax lien has not been filed, notwithstanding actual knowledge of the statutory tax lien (Rev. Rul. 2003-108, I.R.B. 2003-44)

Validity and Priority Against Third Parties: Superpriorities: Superpriority status

Filing notice of a tax lien does not always give the government a superior interest in the taxpayer's property. There are other third-party interests in property which, even though they arise after the government has filed notice of its lien, are accorded a higher status. These interests are the so-called "superpriorities." Under prior law, mortgagees, pledgees, or purchasers of securities, as well as purchasers of motor vehicles, were given this status for their interests in property belonging to or sold by the taxpayer provided they did not have knowledge of the filed lien. These two original superpriorities were retained by the Federal Tax Lien Act of 1966 (P.L. 89-719) (Code Sec. 6323(b)(1) and Code Sec. 6323(b)(2)), although the law was broadened in that a holder of a security interest in securities, not necessarily a mortgagee or pledgee, was given such a superpriority. The law extended this superpriority status to an additional eight categories of interests. Thus, filing of a tax lien will not generally affect these third-party interests regardless of when they arise.

Validity and Priority Against Third Parties: Superpriorities: Retail purchasers

Code Sec. 6323(b)(3) gives purchasers of tangible personal property sold at retail in the ordinary course of the seller's trade or business superpriority status. However, a purchaser will not gain this protection if he knows, or intends, that the purchase will interfere with the collection of taxes. Retail purchasers under prior law did not have this status but, as a practical matter, the IRS seldom enforced against them tax liens for which notice had been filed.

Example:

Notice of a federal tax lien is filed against Smith, a retail furniture dealer. Without knowledge of the lien, Williams buys a piece of furniture from Smith. Williams, as a purchaser at retail, has superpriority status.

Validity and Priority Against Third Parties: Superpriorities: Casual sales

If they are non-dealers, purchasers of household furnishings, personal effects, and other tangible property, which is of the type exempt from levy, have superpriority status (Code Sec. 6323(b)(4)). However, the sales price must be less than $1,000 and the purchaser must not know of the existence of the lien or that the sale is one in a series of sales (which may indicate that a casual seller who, by definition, is not in the business of selling merchandise is having credit problems). Property purchased under these conditions may not be seized by the IRS regardless of when the notice of lien was filed. The effect of this provision is to relieve the buyer from examining tax records before making a relatively small purchase.

The $1,000 exemption amount is adjusted for inflation in the case of any notice of lien filed in any calendar year after 1998 (Code Sec. 6323(i)(4)). The exemption amount is $1,180 for 2004 (Rev. Proc. 2003-85, I.R.B. 2003-49), $1,150 for 2003 (Rev. Proc. 2002-70, I.R.B. 2002-46) and $1,130 for 2002 (Rev. Proc. 2001-59, I.R.B. 2001-52, 623).

Example:

A notice of tax lien is filed against property belonging to Harrison. He offers a stove for sale in the classified section of a newspaper. Without notice of the lien, Quigley, who is not a dealer, buys the stove on August 1, 2003, for $800. The federal tax lien is not valid against Quigley.

Validity and Priority Against Third Parties: Superpriorities: Possessory liens

If local law grants a repairman (or similar person) a lien for repairs or improvements to tangible personal property which he has in his possession, his interest in the property now has superpriority status (Code Sec. 6323(b)(5)). The amount of the charges must be reasonable and possession must be continuous from the time his lien for the charges arose. The superpriority status for this type of lien is not affected by the repairman's having knowledge of the federal tax lien before undertaking the work.

Example:

Before making repairs to a piece of machinery belonging to Johnson, Davis discovers that a tax lien has been filed against property belonging to Johnson. Davis makes the repairs and keeps the machinery in his possession pending payment for his services. Even though Davis had knowledge of the tax lien, a claim by the government for Johnson's property in the hands of Davis will not be valid.

Validity and Priority Against Third Parties: Superpriorities: Attorney's lien

Superpriority status is given to attorneys for their reasonable fees for obtaining judgments or settling claims and causes of action to the extent such fees are protected by a lien against the judgment or settlement under state law (Code Sec. 6323(b)(8)).

A right of setoff exists in favor of the government in the event the attorney's lien arises out of a recovery against the United States. In other words, the attorney's lien superpriority does not apply with respect to judgments the attorney obtains for a taxpayer against the United States.

Example:

Murphy, an attorney, obtains a $10,000 judgment for Lewis in a suit against the United States for damages arising out of a collision with a post office truck. Murphy's fees are $2,500. At the time of the judgment, there is a tax lien filed against property owned by Lewis for an assessed deficiency in the amount of $11,000. Even though state law gives him a lien for his fees, Murphy does not have superpriority status. The government may set off the full judgment against the taxes due.

The courts have held that superpriority applies only where an attorney's actions have created a fund of monies through a judgment or settlement of an action (Chicago Title Ins. Co., DC, 81-2 USTC ¶9696 and F. Kuss, DC, 69-2 USTC ¶9492, at ¶38,160.101). This is consistent with the purpose of Code Sec. 6323(b)(8), which is to encourage attorneys to represent clients with potential tax liabilities.

The requirement that an attorney create a fund rather than merely protect a client's property has generally been liberally interpreted in favor of attorneys. For example, attorneys that defended a taxpayer's claim to an interpleaded fund were entitled to superpriority to the extent that they "did work to garner taxpayer funds which were the subject of a government lien" (Chicago Title Ins. Co., DC, 81-2 USTC ¶9696, at ¶38,160.101). Similarly, the lien of an attorney who reached a settlement agreement with a state that resulted in the return of a portion of cash seized from a client allegedly involved in drug activities was entitled to superpriority status (J.J. Warner, DC, 95-2 USTC ¶50,560, at ¶38,160.101).

The superpriority rules may not be used to claim fees under a retainer agreement executed with respect to a client's defense in a criminal proceeding (First National Bank of Memphis, CA-6, 72-1 USTC ¶9357, at ¶38,160.101).

Validity and Priority Against Third Parties: Superpriorities: Insurance contracts

Insurance companies, if they make policy loans to an insured on a life insurance, endowment, or annuity contract without actual notice or knowledge of a tax lien's having been filed, are granted superpriority status for the amount of the loans. An insurance company will also have this status, regardless of actual notice of the lien, if it is required under the contract (executed prior to notice of lien) to make automatic premium loans (including interest) to the insured. This latter provision gives effect to the clause found in most insurance policies that automatic premium loans shall be a first lien on the contract. An insurance company that makes a loan to the insured after having satisfied a tax levy on the contract is also given superpriority unless the government notifies it of a new tax lien on the contract (Code Sec. 6323(b)(9)).

Example:

A life insurance policy is purchased by Thompson. The policy provides for automatic premium loans in the event it has a sufficient cash value and Thompson fails to pay the premiums as they come due. After the policy is purchased, a tax lien is filed against Thompson's property. The insurance company, even though it has notice of the lien, complies with the policy's provisions and makes automatic premium loans in order to keep the policy in force. The insurance company has superpriority status for its lien created by the premium loans.

Validity and Priority Against Third Parties: Superpriorities: Deposit-secured loans

Banks and building and loan associations often make loans to customers that are secured by account deposits. The security interest in an account deposit is given superpriority status if the bank or building and loan association has no actual notice or knowledge of a tax lien at the time of the loan (Code Sec. 6323(b)(10)).

Example:

Jarvis, against whose property a tax lien has been filed, obtains a loan from the ABC Bank which is secured by his savings account at the XYZ Bank. The lending institution, ABC Bank, has no knowledge of the tax lien. Because ABC Bank did not make the loan on one of its own accounts, it does not have superpriority status. However, XYZ Bank would have superpriority status if it had made the loan and, at the time of the loan, had no knowledge of the tax lien.

Validity and Priority Against Third Parties: Superpriorities: Real property taxes and special assessments

State and local government liens to secure payment of real property taxes, special assessments and certain utility charges are given superpriority status (Code Sec. 6323(b)(6)). Under local law, however, these liens must be granted priority status over the interests of a holder of a security interest in the property even though the latter may be prior in time. Otherwise, the state lien will not be valid as against a federal tax lien, notice of which has been filed.

Example:

Notice of a federal tax lien is filed against the real property of Stanfield. Two months later, a lien arises in favor of State X for unpaid taxes on Stanfield's real property. The laws of State X provide that a state lien arising from real property taxes shall be a first lien on an individual's real property. Under these circumstances, superpriority status is granted to State X for its lien.

Validity and Priority Against Third Parties: Superpriorities: Repairs and improvements to real property

Code Sec. 6323(b)(7) gives superpriority status to persons who, under state law, are granted a non-possessory mechanic's lien for repairs and improvements to real property. The lien must arise as a result of work done on real property containing no more than four dwelling units, and the property must be occupied by the owner. In addition, the charges for the work (including labor and materials) must not be more than $5,000. Actual notice or knowledge of the filed tax lien does not defeat superpriority.

The $5,000 exemption amount is adjusted for inflation in the case of any notice of lien filed in any calendar year after 1998 (Code Sec. 6323(i)(4)). The exemption amount is $5,890 for 2004 (Rev. Proc. 2003-85) I.R.B. 2003-49), $5,750 for 2003 (Rev. Proc. 2002-70, I.R.B. 2002-46, ) and $5,660 for 2002 (Rev. Proc. 2001-59, I.R.B. 2001-52, 623).

Example:

Baron contracts for $900 to paint a single-family dwelling owned and occupied by Dunn. Notice of a tax lien has been filed against Dunn's property. If state law grants Baron a lien for his charges, the tax lien is not valid against him.

Validity and Priority Against Third Parties: Superpriorities: Circular priority

The granting of priority status to mechanic's liens (as well as the limited superpriority status described at ¶38,160.038) and superpriority status to state real property tax liens (see ¶38,160.037) greatly diminishes the "circular priority" problems that arose under prior law because of the "choateness" doctrine.

State laws usually provide that mechanic's liens under limited conditions and state real property tax liens are superior to the lien created by a mortgage. Under prior federal law, these two liens were, in turn, usually junior to a federal tax lien because they were uncertain as to amount. At the same time, the mortgage lien was, as it is now, superior to the federal tax lien. Thus, the possibility existed that there could be four competing liens, each of which was junior to at least one of the others (state tax lien junior to federal tax lien) and superior to at least one of the others (state tax lien superior to mortgage lien).

The Supreme Court established a rule for resolving circular priorities in City of New Britain, 54-1 USTC ¶9191, 347 US 81. The amount of money that represented claims prior to the federal tax liens was set aside first. The federal tax liens were then paid out of the remaining amount. Finally, the sum of the amount set aside plus the amount remaining after payment of the federal tax liens was distributed to the state claimants in accordance with state priorities.

Example:

Black Acre is subject to a $5,000 mortgage lien which, in turn, has priority over a federal tax lien in the amount of $10,000. Other encumbrances are a mechanic's lien for $4,000 and a state tax lien for $1,000, both of which had priority over the mortgage lien but were junior to the federal tax lien. The property is sold for $10,000. Under prior law, the sale proceeds would be distributed as follows:

(1) $5,000 would be set aside for the mortgage lien, since it had priority over the federal tax lien.

(2) The balance, or $5,000, would be paid to satisfy the federal tax lien since the mechanic's lien and state real property tax lien were junior to it.

(3) The $5,000 set aside in (1) would be awarded according to the priority rules of state law. And, because it is usually provided that the state tax lien and mechanic's lien are superior to the mortgage lien, $1,000 and $4,000 would be awarded to each one respectively. The mortgagee would get nothing even though his interest was superior to the federal tax lien.

Under the Federal Tax Lien Act of 1966 (P.L. 89-719), superpriority status for the state real property tax lien would make the federal tax lien junior to the state lien in the above example. And, the mechanic's lien, if it arose out of work commenced before the filing of the federal tax lien or was accorded superpriority status (¶38,160.038), would be superior to the federal tax lien. Thus, the federal tax lien would be junior to all the competing interests. Now, the only possibility of circuity still existing is where the mechanic's lien is given priority under state law at a date earlier than when it is accorded priority or superpriority status under the federal rule.

Validity and Priority Against Third Parties: Priorities in Financing Agreements: Security interest in commercial transactions financing agreement

A priority is granted to security interests arising out of a commercial transactions financing agreement (Code Sec. 6323(c)). This is an agreement entered into by a person in the ordinary course of his trade or business: (1) to make loans to the taxpayer secured by commercial financing security which the taxpayer acquires in the ordinary course of his trade or business, or (2) to purchase commercial financing security from the taxpayer, except inventory, which he acquires in the ordinary course of his trade or business. Thus, a commercial factor or a bank which makes a loan to a manufacturer secured by the latter's inventory would be considered a holder of a security interest arising out of a commercial transactions financing agreement.

" Commercial financing security" includes such items as accounts receivable, real property mortgages and inventory. It also includes paper of a kind ordinarily arising in commercial transactions, including the Uniform Commercial Code categories of "contract rights," "chattel paper," "documents," and "instruments" (see definitions in Article 9 of the U.C.C.); but it does not include intangibles, such as patents or copyrights. Inventory includes goods in process and raw materials, as well as property held for sale to customers in the ordinary course of a trade or business.

Code Sec. 6323(c)(1) and (2) provides that a holder of a security interest arising out of a commercial transaction financing agreement will be protected against a filed tax lien under the following conditions:

(1) The agreement was entered into before filing of the tax lien;

(2) Purchases and loans were made under the agreement, and the commercial financing security was acquired by the taxpayer no later than 45 days after the tax lien was filed;

(3) State law gives the holder priority against a judgment lien creditor as of the time the federal tax lien is filed; and

(4) There is no actual notice or knowledge that the tax lien has been filed.

The effect of this provision is to relieve financiers of accounts receivable, inventory, and other commercial paper of searching the records to be sure that no tax lien has been filed before making a loan or purchase under an agreement entered into before a tax lien is filed. So long as these persons have no actual notice or knowledge of the filing, it is sufficient that they search the records once every 45 days.

Validity and Priority Against Third Parties: Priorities in Financing Agreements: Real property construction or improvement financing agreement

An interest arising out of a real property construction or improvement financing agreement is also accorded special priority (Code Sec. 6323(c)(3)). This is an agreement (1) to finance the construction or improvement of real property (or a contract to do this work) or (2) to finance the raising or harvesting of crops or the raising of livestock.

A lender who advances a taxpayer cash under (1) or (2) above, or furnishes him goods or services under (2) above pursuant to such an agreement, is accorded priority over a filed tax lien under the following conditions:

(1) The agreement was entered into before the filing of the tax lien; and

(2) The interest is given priority under state law against a judgment lien creditor as of the time of the filing of the federal tax lien.

Example:

Schmidt, a farm supply dealer, agrees to furnish seed and fertilizer to Funston, as well as materials whereby the latter can construct crop storage facilities, such as silos. The agreement was made before notice of a tax lien had been filed against Funston. The seed and fertilizer, as well as the construction materials, are furnished 6 months after the filing of the lien. Schmidt has priority over the lien as to the seed and fertilizer. However, no priority exists for the furnishing of the construction materials since the financing of real property improvements must be made only in the form of cash.

So long as the above two conditions are met, there is no time limit after the filing of the tax lien within which advances under the agreement must be made. Nor does the fact that the lender has notice before making the advances impair the priority of his interest.

Validity and Priority Against Third Parties: Priorities in Financing Agreements: Obligatory disbursement agreement

The interest of a lender for advances under an obligatory disbursement agreement after tax lien filing is given priority if the agreement is entered into in the ordinary course of his trade or business and before the filing of the tax lien (Code Sec. 6323(c)(4)). This is an agreement under which a person is obliged to make disbursements because someone other than the taxpayer has relied on his obligation. An example is an irrevocable letter of credit where the bank issuing the letter must honor a demand for payment by a third party who advances credit to the taxpayer in reliance upon the letter, or a surety. There is no time limit in which to make the disbursements for this priority after the filing of the federal tax lien so long as the third party has a right to demand them and state law gives the lender's interest priority against a judgment lien creditor as of the time of the filing of the federal tax lien. The priority also extends, if the agreement so provides, to any other property whose acquisition by the taxpayer is directly traceable to the disbursements.

Example (1):

First State Bank, pursuant to a written agreement, issues an irrevocable letter of credit to allow White, the taxpayer, to finance the purchase of 100 automobiles. The bank honors its obligation after the filing of a notice of tax lien. First State Bank has priority over the tax lien with respect to the 100 automobiles which were purchased by White with the cash disbursements. In addition, if the written agreement so provides, the bank's priority extends to any other property the acquisition of which is directly traceable to its cash disbursements, such as the proceeds from the sale of the automobiles.

For sureties who must make loans to finance the completion of a contract, their superpriority extends not only to the proceeds of the contract entered into by the delinquent taxpayer, but also to any tangible personal property used by the delinquent taxpayer to perform the contract, if the contract was for the construction or improvement of real property, the production of goods or the furnishing of services (Code Sec. 6323(c)(4)(C)).

Example (2):

The Apex Construction Company contracts to build a warehouse for the Smith Corporation for $2,500,000. When the building is 75% completed, notice of a $3,000,000 federal tax lien is filed against Apex. Apex defaults and A Surety Company, as surety under Apex's performance bond, is forced to complete the job at a cost of $750,000. A has priority over the filed federal tax lien with respect to the proceeds of the construction contract and also with respect to any tangible personal property used to complete the project.

Validity and Priority Against Third Parties: Disbursements with Respect to Security Interests: Forty-five day period for disbursements with respect to security interests

A holder of a security interest, if the agreement creating the interest was entered into before the tax lien filing, is given a new limited priority (Code Sec. 6323(d)). Even though the tax lien is subsequently filed, the holder may make disbursements under the agreement and obtain priority for them if they are made within 45 days of the tax lien filing. However, this priority is lost for disbursements made within the 45-day period if the holder has actual knowledge or notice of the tax lien filing. For this priority to arise, state law must give the holder's interest priority against a judgment lien arising as of the time of the tax lien filing.

Example:

Lyons agrees to lend Crane money for the latter's purchase of a house in return for a mortgage on the property. Shortly thereafter, notice of a tax lien is filed against property belonging to Crane. Without actual notice of the lien and within 45 days after it is filed, Lyons advances the money to Crane and receives a mortgage on the property. Lyons, as the holder of a security interest, has priority for his interest even though notice of the lien was filed before the money was advanced under the agreement.

Validity and Priority Against Third Parties: Interest and Expenses Related to Liens: Priority of interest and expenses

Code Sec. 6323(e) provides a priority for interest and other costs of preserving property (regardless of whether they are fixed and determinable as to amount) on which there is a lien or security interest which is superior to a federal tax lien. This priority is conditioned on the state law's giving the interest or expense the same priority as the lien or security interest to which it relates. The items covered under this priority are:

(1) Interest or carrying charges (including finance and service charges) on the obligation secured by a lien or security interest;

(2) Reasonable expenses of an indenture trustee, such as a trustee under a deed of trust, or agent holding a security interest;

(3) Reasonable expenses, including attorney's fees, incurred in collecting and enforcing a secured obligation;

(4) Reasonable costs of insuring, preserving, or repairing the property subject to the lien or security interest;

(5) Reasonable costs, such as mortgage insurance, of insuring payment of the obligation secured; and

(6) Amounts paid by a holder of a lien or security interest to satisfy another lien on the property where this other lien has priority over the federal tax lien.

Validity and Priority Against Third Parties: Bankruptcy: Trustee as a judgment creditor

A trustee in bankruptcy has all the rights and powers of a judgment lien creditor. A judgment lien creditor is a person who has obtained a valid judgment, in a court of record and of competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money (Reg. §301.6323(h)-1(g)). In the case of a judgment for the recovery of a certain sum of money, a judgment lien creditor is a person who has perfected a lien under the judgment on the property involved. A judgment lien is not perfected until the identity of the lienor, the property subject to the lien, and the amount of the lien are established. Accordingly, a judgment lien does not include an attachment or garnishment lien until the lien has ripened into judgment, even though under local law the lien of the judgment relates back to an earlier date.

Because the trustee in bankruptcy represents all the general creditors, the claims of the trustee in a bankruptcy proceeding are superior under Code Sec. 6323 to unfiled IRS liens (11 U.S.C. 110 (Bankruptcy Code)). See also, the U.S. Supreme Court decision in R.F. Speers, 66-1 USTC ¶9101, at ¶38,160.115.

Equitable subordination. The Supreme Court has ruled that equitable subordination may not be applied on a "categorical basis" to make IRS claims for postpetition, nonpecuniary-loss tax penalties subordinate to the claims of general unsecured creditors (T.R. Noland, SCt, 96-1 USTC ¶50,252, at ¶38,160.115). Under the general rule, the Bankruptcy Code treats tax penalties as an administrative expense entitled to first priority status (11 U.S.C. §§503(b)(1)(C) and 507(a)(1)). However, a bankruptcy court has the power to invoke the principle of equitable subordination to subordinate all or part of an allowed claim for purposes of determining distribution priorities (11 U.S.C. §501(c)).

Equitable subordination has typically been invoked upon a showing of misconduct by a creditor with a claim that would otherwise be entitled to priority status. However, in the decision reversed by the Supreme Court, the bankruptcy court applied the equitable subordination rule on the general grounds that it was unfair to give priority to a tax penalty that does not reimburse the IRS for an actual pecuniary loss. The Supreme Court ruled that the broad application of the doctrine in this manner was in effect an impermissible modification of the statutory priority rules, which specifically give penalties priority as administrative expenses. Because of its conclusion that the doctrine had been inappropriately applied in a categorical fashion, the Supreme Court did not need to decide whether equitable subordination may only apply upon a showing of creditor misconduct, as contended by the IRS.

The Supreme Court followed the reasoning of its Noland decision in Reorganized CF&I Fabricators of Utah, Inc., (SCt, 96-1 USTC ¶50,322 at ¶38,160.115). That decision, which was rendered shortly after Noland, held that the ten-percent tax imposed under Code Sec. 4971 on a bankrupt corporation for an accumulated funding deficiency was not entitled to priority status as an excise tax but instead was, for bankruptcy purposes, a penalty to be dealt with as an ordinary, unsecured claim. That claim could not be equitably subordinated to the claims of all other unsecured general creditors.

Validity and Priority Against Third Parties: Bankruptcy: Effect of federal priority statute on lien priority

The Supreme Court has ruled that the federal priority statute, 31 U.S.C. §3713, does not require that a federal tax claim be given priority over a previously filed judgment creditor's perfected lien (F.J. Romani Est., SCt, 98-1 USTC ¶50,368, at ¶38,160.78). In general, the federal priority statute requires that claims owed to the United States be paid first when a person indebted to the United States is insolvent (and certain other conditions apply) or when a decedent's estate cannot pay all of its debts.

The federal priority statute, however, conflicts with Code Sec. 6323(a), which provides that a judgment lien creditor has priority over an unfiled federal tax lien. The Supreme Court resolved the conflict in favor of the judgment creditor since Code Sec. 6323(a) was enacted after the priority statute and expressly authorizes priority for judgment creditor's with perfected liens.

Although this case involved a judgment lien creditor, the Court's reasoning would certainly apply to purchasers, holders of security interests, and mechanic's lienors who also qualify for priority status under Code Sec. 6323(a).

Validity and Priority Against Third Parties: Tax Liens Under State Law: Property rights

The Supreme Court has made it clear that, in determining whether or not the taxpayer has any property rights in an object against which the federal government asserts a tax lien, the courts, both state and federal, must look to state law (United States v. Bess, 58-2 USTC ¶9595, 357 US 51; Aquilino v. United States, 60-2 USTC ¶9538, 363 US 509; Durham Lumber Co., 60-2 USTC ¶9539, 363 US 522). However, once state law creates a property interest, federal law governs the application of tax liens (R.F. Drye, Jr., SCt, 99-2 USTC ¶51,006). In S.L. Craft (2002-1 USTC ¶50,361, at ¶38,160.926), the Supreme Court held that a federal tax lien can attach to real property exempt from the reach of creditors under state law. The Court ruled that a federal tax lien attached to property held by a delinquent taxpayer as a tenant by the entirety, despite historical treatment to the contrary.

Tax Liens Under State Law: Priority

The Supreme Court has emphasized in M.P. Acri, overruling the Sixth Circuit (SCt, 55-1 USTC ¶9538, at ¶38,160.124), that the relative priority of a federal tax lien is always a federal question to be determined finally by the federal courts, and that they are not necessarily bound by the characterization of the liens under state law. Under Ohio law, the "attachment lien" had been held an "execution in advance," perfected at the time the attachment is made. However, the Supreme Court held that such a lien is "an inchoate lien because at the time the attachment issued the fact and the amount of the lien were contingent upon the outcome of the suit for damages." As such, a federal income tax lien filed subsequent to the attachment lien was deemed superior. The Supreme Court also cited the Acri decision in overruling the Fourth Circuit in the Liverpool & London & Globe Ins. Co., Ltd. case (SCt, 55-1 USTC ¶9136, at ¶38,160.62), holding that the lien for U.S. taxes was superior to an earlier garnishment lien where notice of the tax lien had been filed before the garnishor obtained judgment. In Scovil, the Supreme Court overruled a priority given by the high court of South Carolina to a landlord's distress lien over U.S. tax liens (SCt, 55-1 USTC ¶9137, at ¶38,160.951). It was held unnecessary to pass upon the effect of state law where the lien had not been perfected in the "federal" sense when the government's liens were filed.

Validity and Priority Against Third Parties: Reporting Requirements: Notice filing requirements

Code Sec. 6323(f) requires that notice of lien is to be filed in the following places:

(1) Real Property. --Notice of federal tax lien is to be filed in the one office within the state (or the county or other governmental subdivision) designated by the state where the real property is situated. For real property located in the District of Columbia, notice of the lien is filed in the office of the Recorder of Deeds.

(2) Personal Property (whether tangible or intangible). --Notice of federal tax lien is to be filed in the one office within the state (or the county or other governmental subdivision) designated by the state in which the property is situated. Personal property is situated in the state where the taxpayer resides (rather than where he is domiciled). If the taxpayer resides in the District of Columbia, notice of the lien is filed in the office of the Recorder of Deeds.

If, in either (1) or (2), above, the state designates more than one office or no office where notice must be filed, notice of the lien is to be filed with the Clerk of the U.S. District Court for the district in which the property is situated.

In determining a taxpayer's residence:

(a) Corporations and Partnerships. --Residence is deemed to be the place at which its principal executive office is located.

(b) Taxpayer Residing Outside of U.S. --Residence is deemed to be Washington, D.C. Accordingly, notice of federal tax lien against his personal property (all types) is to be filed with the Recorder of Deeds for the District of Columbia.

Example:

Dennison, a delinquent taxpayer, owns real estate in Pennsylvania and resides in Washington, D.C. He has bank accounts in Virginia and Maryland. To be effective, notice of the tax lien should be filed in Pennsylvania against his real estate. For the bank accounts, notice of the lien is filed with the Recorder of Deeds for the District of Columbia. If Dennison were residing in Mexico, notice of the lien would still be filed in Pennsylvania regarding his real property and with the Recorder of Deeds for the District of Columbia regarding his bank accounts.

If the property subject to the lien is situated in the District of Columbia, then the lien is to be filed in the office of the Recorder of Deeds of the District of Columbia.

It is not necessary for Directors of Internal Revenue to acknowledge notices of tax liens and certificates of discharge of tax liens (Rev. Rul. 71-466, 1971-2 CB 409).

For tax liens that affect realty and are acquired after November 6, 1978, priority is further conditioned upon filing with the state or local office where tax liens are usually filed in states that require public indexing for liens to have priority and that have an adequate system in their local offices for indexing federal tax liens. No comparable requirement is imposed as to liens that affect personal property. In some cases liens may be filed electronically (see SSG Inc., DC, 93-1 USTC ¶50,353, at ¶38,160.215).

Validity and Priority Against Third Parties: Reporting Requirements: Refiling of notice

The collection period is 10 years for tax assessments made after November 5, 1990, and for assessments made prior to that date if the prior six-year period has not expired as of that date (Code Sec. 6323(g)(3)). This period may be suspended, as where the taxpayer is out of the country, or extended by agreement with the taxpayer. To protect creditors against a tax lien that is still enforceable after the collection period, the IRS is required to refile notice of its lien within the one-year period ending 30 days after the expiration of the collection period. Failure to refile within this period has the effect of nullifying the original filing of notice as to interests arising thereafter. Thus, a late refiling under this provision is a new filing. Refiling must be made in the office in which the original notice was filed but, if the taxpayer has moved, it also must be made in the office designated by the state in which the taxpayer resides at the time of the required refiling. A second refiling must be made within the one-year period ending with the expiration of 10 years after the close of the preceding required refiling period.

The notice of refiling must occur in the office of the original filing. If the IRS receives written information of a change in the taxpayer's residence 90 days or more before the date for refiling, the refiling must also be made in the state in which the new residence is located.

If the refiling deadline set forth on the Notice of Federal Tax Lien passes without IRS action, the notice operates as a certificate of release and is conclusive evidence that the lien is extinguished (Code Sec. 6325(f)(1)(A)).

The extension of the six-year limitations period on collections to 10 years has made it necessary for the IRS to file corrective liens that restate the refiling deadline with reference to the 10-year limitations period. Failure to file a corrective lien will result in the loss of priority status on the date the refiling deadline passes even though the new collections period extends beyond that date (Cole, BC-DC Mass., 97-2 USTC ¶50,794, at ¶38,160.25).

Validity and Priority Against Third Parties: Reporting Requirements: Local personal property tax assessment as a judgment

Under the law of some states, the assessment of a local personal property tax is in the nature of a judgment which gives "judgment creditor" status to the local taxing authority. But is the local taxing unit, merely by virtue of state law, a judgment creditor so as to entitle it to notice of the federal government's lien for taxes against the same tax debtor? Under Code Sec. 6323, the government's lien is not valid as against a judgment creditor until notice of the lien has been filed. It has been held, frequently enough, that, without more, the local taxing authority is not entitled to such notice; however, the Supreme Court has held (Gilbert Associates, Inc., 53-1 USTC ¶9291, at ¶38,160.8058) that, even though a local taxing unit has judgment creditor status under state law, it is not a judgment creditor for the purpose of 1939 Code Sec. 3672 (similar to 1986 Code Sec. 6323). Note that in the case of local real property assessments, this question was resolved by Code Sec. 6323(b)(6), which gives liens of this type super-priority status (see ¶38,160.03).

Validity and Priority Against Third Parties: Reporting Requirements: Where the federal tax lien notice is filed, disclosure of lien, and withdrawal of lien prior to full payment of tax

These state offices are set out in column 2 for real property and column 3 for personal property (reference to the official state law is in column 1). If a state designates no office, or more than one office, for filing, the notice of federal tax lien must be filed in the office of the Clerk of the U.S. District Court for the district where the real property is located or, for personal property, where the taxpayer resides (Code Sec. 6323(f)(1)).

The residence of a corporation or a partnership is deemed to be the place at which the principal executive office is located (Code Sec. 6323(f)(2), last sentence). This is the office at which the major executive decisions affecting the business are made (D'Antoni, Inc., CA-5, 74-2 USTC ¶9552, at ¶38,160.215). The IRS has ruled that the definition of "principal office" provided in Rev. Rul. 73-11 (¶36,812.10) for purposes of determining the service center where a corporation must file its tax return is not necessarily the same as the corporation's "principal executive office" for purposes of the lien filing rules (Rev. Rul. 74-571, ¶38,160.215).

For purposes of filing a notice of tax lien with respect to personal property, a taxpayer with a residence abroad is deemed to reside in Washington D.C. (Code Sec. 6323(f)(2), last sentence). Thus, a notice of tax lien filed against personal property should be filed with the Recorder of Deeds for the District of Columbia if the taxpayer resides abroad when the lien is filed (Code Sec. 6323(f)(1)(C)).

If state law provides that a notice of lien affecting personal property must be filed in one office, and the state, for purposes of attaching a specific type of property, also adopts a federal law that requires a notice of lien to be filed in another location, the state is considered to have designated only one office for the filing of the notice of lien. Thus, to protect its lien, the IRS need only file its notice in the former office and not in the latter one (Reg. §301.6323(f)-1(a)(2)).

Once the appropriate state office is located on the chart, all notices and certificates of discharge filed by the IRS (under Code Sec. 6325) must be filed in that office, unless the state specifically designates otherwise. If this happens, Code Sec. 6325(g) requires that the certificate or notice be filed with the Clerk of the U.S. District Court for the judicial district in which the state office (where the notice of lien was originally filed) is located.

Furthermore, the law (Code Sec. 6323(g)(2)(A)) requires the IRS to refile a notice of tax lien in the same state office (column 2 or 3 of the chart) where the original notice of lien was filed. But where the IRS receives written information of a change in the delinquent taxpayer's address 90 days or more before refiling, the notice must also be refiled in the appropriate state office where the new residence is located (that is, column 2 of the chart). If the taxpayer's new residence is located outside of the United States, the notice must be refiled with the Recorder of Deeds of the District of Columbia (Code Sec. 6323(g)(2)(B)). The fact of refiling must be noted in the public index of liens if the refiling occurs in the same office in which the prior notice was filed.

Effect of national system for filing liens. The filing of federal tax liens is governed solely by the Internal Revenue Code. Thus, the IRS is not subject to any other federal law that may establish a national system for filing liens against a particular type of personal property, such as the requirements established by the Federal Aviation Agency (FAA) for filing liens against civil aircraft in Oklahoma City, Oklahoma (Code Sec. 6323(f)(5); Reg. §301.6323(f)-1(c)).

Example:

State A provides that notices of lien affecting personal property are filed with the clerk of the circuit court in the county in which the personal property is located. State A, however, has also adopted the Federal government's national filing system for civil aircraft. The FAA system adopted by State A is not considered a second place for filing and the IRS lien should be filed with the clerk of the circuit court in the county in which the aircraft is located (Reg. §301.6323(f)-1(e), Example 5). Furthermore, if State A had not conformed state law to the FAA requirements, the IRS lien would still be filed with the clerk of the circuit court in the county in which the aircraft is located because the filing of federal tax liens is governed solely by the Internal Revenue Code and is not subject to any other national filing system (Reg. §301.6323(f)-1(e), Example 6).

Disclosure of lien. The amount secured by a lien for which a notice of lien has been filed may be disclosed as a matter of public record on IRS Form 668-Y, Notice of Federal Tax Lien Under Internal Revenue Laws, to any person who has an interest in knowing the secured amount. This information will be provided to such an individual after a request has been made in the manner set forth in Reg. §301.6323(i)-1. The disclosure of information necessary to effectuate a notice of lien is not considered an improper disclosure of return information (S.A. Leithliter, DC, 95-2 USTC ¶50,629, at ¶38,160.2145).

Withdrawal of lien prior to full payment of tax. The IRS has the authority to withdraw a notice of tax lien prior to receiving full payment of a tax liability from a taxpayer if it determines that:

(1) the filing of the notice was premature or otherwise not in accordance with IRS administrative procedures;

(2) the taxpayer has entered into an installment agreement to satisfy the tax liability and the installment agreement does not prohibit the withdrawal of the lien;

(3) the withdrawal of the notice will facilitate collection of the tax liability; or

(4) with the consent of the taxpayer or the National Taxpayer Advocate, the withdrawal of the lien would be in the best interests of the taxpayer (as determined by the National Taxpayer Advocate) and the government (Code Sec. 6323(j)(1)).

The notice of federal tax lien is withdrawn by filing a notice of withdrawal in the office in which the notice of lien is filed and providing the taxpayer with a copy of the notice of withdrawal (Code Sec. 6323(j)(1)). The withdrawal of a notice of lien does not affect the underlying tax lien (Reg. §301.6323(j)-1(a)). Rather, it simply relinquishes any lien priority the IRS had obtained under Code Sec. 6323. At the written request of the taxpayer, the IRS must also make reasonable efforts to give notice of the withdrawal to credit reporting agencies, financial institutions, and creditors specified by the taxpayer (Code Sec. 6323(j)(2)). If the Commissioner grants a withdrawal of notice of federal tax lien, the taxpayer may supplement the list of creditors to be notified that was provided in the taxpayer's request for the lien withdrawal (Reg. §301.6323(j)(e))

SECTION 6323 OF THE INTERNAL REVENUE CODE - VALIDITY AND PRIORITY AGAINST CERTAIN PERSONS

6323(a) PURCHASERS, HOLDERS OF SECURITY INTERESTS, MECHANIC'S LIENORS, AND JUDGMENT LIEN CREDITORS. --The lien imposed by section 6321 shall not be valid as against any purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary.

6323(b) PROTECTION FOR CERTAIN INTERESTS EVEN THOUGH NOTICE FILED. --Even though notice of a lien imposed by section 6321 has been filed, such lien shall not be valid --

6323(b)(1) SECURITIES. --With respect to a security (as defined in subsection (h)(4)) --

6323(b)(1)(A) as against a purchaser of such security who at the time of purchase did not have actual notice or knowledge of the existence of such lien; and

6323(b)(1)(B) as against a holder of a security interest in such security who, at the time such interest came into existence, did not have actual notice or knowledge of the existence of such lien.

6323(b)(2) MOTOR VEHICLES. --With respect to a motor vehicle (as defined in subsection (h)(3)), as against a purchaser of such motor vehicle, if --

6323(b)(2)(A) at the time of the purchase such purchaser did not have actual notice or knowledge of the existence of such lien, and

6323(b)(2)(B) before the purchaser obtains such notice or knowledge, he has acquired possession of such motor vehicle and has not thereafter relinquished possession of such motor vehicle to the seller or his agent.

6323(b)(3) PERSONAL PROPERTY PURCHASED AT RETAIL. --With respect to tangible personal property purchased at retail, as against a purchaser in the ordinary course of the seller's trade or business, unless at the time of such purchase such purchaser intends such purchase to (or knows such purchase will) hinder, evade, or defeat the collection of any tax under this title.

6323(b)(4) PERSONAL PROPERTY PURCHASED IN CASUAL SALE. --With respect to household goods, personal effects, or other tangible personal property described in section 6334(a) purchased (not for resale) in a casual sale for less than $1,000, as against the purchaser, but only if such purchaser does not have actual notice or knowledge (A) of the existence of such lien, or (B) that this sale is one of a series of sales.

6323(b)(5) PERSONAL PROPERTY SUBJECT TO POSSESSORY LIEN. --With respect to tangible personal property subject to a lien under local law securing the reasonable price of the repair or improvement of such property, as against a holder of such a lien, if such holder is, and has been, continuously in possession of such property from the time such lien arose.

6323(b)(6) REAL PROPERTY TAX AND SPECIAL ASSESSMENT LIENS. --With respect to real property, as against a holder of a lien upon such property, if such lien is entitled under local law to priority over security interests in such property which are prior in time, and such lien secures payment of --

6323(b)(6)(A) a tax of general application levied by any taxing authority based upon the value of such property;

6323(b)(6)(B) a special assessment imposed directly upon such property by any taxing authority, if such assessment is imposed for the purpose of defraying the costs of any public improvement; or

6323(b)(6)(C) charges for utilities or public services furnished to such property by the United States, a State or political subdivision thereof, or an instrumentality of any one or more of the foregoing.

6323(b)(7) RESIDENTIAL PROPERTY SUBJECT TO A MECHANIC'S LIEN FOR CERTAIN REPAIRS AND IMPROVEMENTS. --With respect to real property subject to a lien for repair or improvement of a personal residence (containing not more than four dwelling units) occupied by the owner of such residence, as against a mechanic's lienor, but only if the contract price on the contract with the owner is not more than $5,000.

6323(b)(8) ATTORNEYS' LIENS. --With respect to a judgment or other amount in settlement of a claim or of a cause of action, as against an attorney who, under local law, holds a lien upon or a contract enforcible against such judgment or amount, to the extent of his reasonable compensation for obtaining such judgment or procuring such settlement, except that this paragraph shall not apply to any judgment or amount in settlement of a claim or of a cause of action against the United States to the extent that the United States offsets such judgment or amount against any liability of the taxpayer to the United States.

6323(b)(9) CERTAIN INSURANCE CONTRACTS. --With respect to a life insurance, endowment, or annuity contract, as against the organization which is the insurer under such contract, at any time --

6323(b)(9)(A) before such organization had actual notice or knowledge of the existence of such lien;

6323(b)(9)(B) after such organization had such notice or knowledge, with respect to advances required to be made automatically to maintain such contract in force under an agreement entered into before such organization had such notice or knowledge; or

6323(b)(9)(C) after satisfaction of a levy pursuant to section 6332(b), unless and until the Secretary delivers to such organization a notice, executed after the date of such satisfaction, of the existence of such lien.

6323(b)(10) DEPOSIT-SECURED LOANS. --With respect to a savings deposit, share, or other account, with an institution described in section 581 or 591, to the extent of any loan made by such institution without actual notice or knowledge of the existence of such lien, as against such institution, if such loan is secured by such account.

6323(c) PROTECTION FOR CERTAIN COMMERCIAL TRANSACTIONS FINANCING AGREEMENTS, ETC. --

6323(c)(1) IN GENERAL. --To the extent provided in this subsection, even though notice of a lien imposed by section 6321 has been filed, such lien shall not be valid with respect to a security interest which came into existence after tax lien filing but which --

6323(c)(1)(A) is in qualified property covered by the terms of a written agreement entered into before tax lien filing and constituting --

6323(c)(1)(A)(i) a commercial transactions financing agreement,

6323(c)(1)(A)(ii) a real property construction or improvement financing agreement, or

6323(c)(1)(A)(iii) an obligatory disbursement agreement, and

6323(c)(1)(B) is protected under local law against a judgment lien arising, as of the time of tax lien filing, out of an unsecured obligation.

6323(c)(2) COMMERCIAL TRANSACTIONS FINANCING AGREEMENT. --For purposes of this subsection --

6323(c)(2)(A) DEFINITION. --The term "commercial transactions financing agreement" means an agreement (entered into by a person in the course of his trade or business) --

6323(c)(2)(A)(i) to make loans to the taxpayer to be secured by commercial financing security acquired by the taxpayer in the ordinary course of his trade or business, or

6323(c)(2)(A)(ii) to purchase commercial financing security (other than inventory) acquired by the taxpayer in the ordinary course of his trade or business;

but such an agreement shall be treated as coming within the term only to the extent that such loan or purchase is made before the 46th day after the date of tax lien filing or (if earlier) before the lender or purchaser had actual notice or knowledge of such tax lien filing.

6323(c)(2)(B) LIMITATION ON QUALIFIED PROPERTY. --The term "qualified property", when used with respect to a commercial transactions financing agreement, includes only commercial financing security acquired by the taxpayer before the 46th day after the date of tax lien filing.

6323(c)(2)(C) COMMERCIAL FINANCING SECURITY DEFINED. --The term "commercial financing security" means (i) paper of a kind ordinarily arising in commercial transactions, (ii) accounts receivable, (iii) mortgages on real property, and (iv) inventory.

6323(c)(2)(D) PURCHASER TREATED AS ACQUIRING SECURITY INTEREST. --A person who satisfies subparagraph (A) by reason of clause (ii) thereof shall be treated as having acquired a security interest in commercial financing security.

6323(c)(3) REAL PROPERTY CONSTRUCTION OR IMPROVEMENT FINANCING AGREEMENT. --For purposes of this subsection --

6323(c)(3)(A) DEFINITION. --The term "real property construction or improvement financing agreement" means an agreement to make cash disbursements to finance --

6323(c)(3)(A)(i) the construction or improvement of real property,

6323(c)(3)(A)(ii) a contract to construct or improve real property, or

6323(c)(3)(A)(iii) the raising or harvesting of a farm crop or the raising of livestock or other animals.

For purposes of clause (iii), the furnishing of goods and services shall be treated as the disbursement of cash.

6323(c)(3)(B) LIMITATION ON QUALIFIED PROPERTY. --The term "qualified property", when used with respect to a real property construction or improvement financing agreement, includes only --

6323(c)(3)(B)(i) in the case of subparagraph (A)(i), the real property with respect to which the construction or improvement has been or is to be made,

6323(c)(3)(B)(ii) in the case of subparagraph (A)(ii), the proceeds of the contract described therein, and

6323(c)(3)(B)(iii) in the case of subparagraph (A)(iii), property subject to the lien imposed by section 6321 at the time of tax lien filing and the crop or the livestock or other animals referred to in subparagraph (A)(iii).

6323(c)(4) OBLIGATORY DISBURSEMENT AGREEMENT. --For purposes of this subsection --

6323(c)(4)(A) DEFINITION. --The term "obligatory disbursement agreement" means an agreement (entered into by a person in the course of his trade or business) to make disbursements, but such an agreement shall be treated as coming within the term only to the extent of disbursements which are required to be made by reason of the intervention of the rights of a person other than the taxpayer.

6323(c)(4)(B) LIMITATION ON QUALIFIED PROPERTY. --The term "qualified property", when used with respect to an obligatory disbursement agreement, means property subject to the lien imposed by section 6321 at the time of tax lien filing and (to the extent that the acquisition is directly traceable to the disbursements referred to in subparagraph (A)) property acquired by the taxpayer after tax lien filing.

6323(c)(4)(C) SPECIAL RULES FOR SURETY AGREEMENTS. --Where the obligatory disbursement agreement is an agreement ensuring the performance of a contract between the taxpayer and another person --

6323(c)(4)(C)(i) the term "qualified property" shall be treated as also including the proceeds of the contract the performance of which was ensured, and

6323(c)(4)(C)(ii) if the contract the performance of which was ensured was a contract to construct or improve real property, to produce goods, or to furnish services, the term "qualified property" shall be treated as also including any tangible personal property used by the taxpayer in the performance of such ensured contract.

6323(d) 45-DAY PERIOD FOR MAKING DISBURSEMENTS. --Even though notice of a lien imposed by section 6321 has been filed, such lien shall not be valid with respect to a security interest which came into existence after the tax lien filing by reason of disbursements made before the 46th day after the date of tax lien filing, or (if earlier) before the person making such disbursements had actual notice or knowledge of tax lien filing, but only if such security interest --

6323(d)(1) is in property (A) subject, at the time of tax lien filing, to the lien imposed by section 6321, and (B) covered by the terms of a written agreement entered into before tax lien filing, and

6323(d)(2) is protected under local law against a judgment lien arising, as of the time of tax lien filing, out of an unsecured obligation.

6323(e) PRIORITY OF INTEREST AND EXPENSES. --If the lien imposed by section 6321 is not valid as against a lien or security interest, the priority of such lien or security interest shall extend to --

6323(e)(1) any interest or carrying charges upon the obligation secured,

6323(e)(2) the reasonable charges and expenses of an indenture trustee or agent holding the security interest for the benefit of the holder of the security interest,

6323(e)(3) the reasonable expenses, including reasonable compensation for attorneys, actually incurred in collecting or enforcing the obligation secured,

6323(e)(4) the reasonable costs of insuring, preserving, or repairing the property to which the lien or security interest relates,

6323(e)(5) the reasonable costs of insuring payment of the obligation secured, and

6323(e)(6) amounts paid to satisfy any lien on the property to which the lien or security interest relates, but only if the lien so satisfied is entitled to priority over the lien imposed by section 6321,

to the extent that, under local law, any such item has the same priority as the lien or security interest to which it relates.

6323(f) PLACE FOR FILING NOTICE; FORM. --

6323(f)(1) PLACE FOR FILING. --The notice referred to in subsection (a) shall be filed --

6323(f)(1)(A) UNDER STATE LAWS. --

6323(f)(1)(A)(i) REAL PROPERTY. --In the case of real property, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated; and

6323(f)(1)(A)(ii) PERSONAL PROPERTY. --In the case of personal property, whether tangible or intangible, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated, except that State law merely conforming to or reenacting Federal law establishing a national filing system does not constitute a second office for filing as designated by the laws of such State;

6323(f)(1)(B) WITH CLERK OF DISTRICT COURT. --In the office of the clerk of the United States district court for the judicial district in which the property subject to the lien is situated, whenever the State has not by law designated one office which meets the requirements of subparagraph (A); or

6323(f)(1)(C) WITH RECORDER OF DEEDS OF THE DISTRICT OF COLUMBIA. --In the office of the Recorder of Deeds of the District of Columbia, if the property subject to the lien is situated in the District of Columbia.

6323(f)(2) SITUS OF PROPERTY SUBJECT TO LIEN. --For purposes of paragraphs (1) and (4), property shall be deemed to be situated --

6323(f)(2)(A) REAL PROPERTY. --In the case of real property, at its physical location; or

6323(f)(2)(B) PERSONAL PROPERTY. --In the case of personal property, whether tangible or intangible, at the residence of the taxpayer at the time the notice of lien is filed.

For purposes of paragraph (2)(B), the residence of a corporation or partnership shall be deemed to be the place at which the principal executive office of the business is located, and the residence of a taxpayer whose residence is without the United States shall be deemed to be in the District of Columbia.

6323(f)(3) FORM. --The form and content of the notice referred to in subsection (a) shall be prescribed by the Secretary. Such notice shall be valid notwithstanding any other provision of law regarding the form or content of a notice of lien.

6323(f)(4) INDEXING REQUIRED WITH RESPECT TO CERTAIN REAL PROPERTY. --In the case of real property, if

6323(f)(4)(A) under the laws of the State in which the real property is located, a deed is not valid as against a purchaser of the property who (at the time of purchase) does not have actual notice or knowledge of the existence of such deed unless the fact of filing of such deed has been entered and recorded in a public index at the place of filing in such a manner that a reasonable inspection of the index will reveal the existence of the deed, and

6323(f)(4)(B) there is maintained (at the applicable office under paragraph (1)) an adequate system for the public indexing of Federal tax liens,

then the notice of lien referred to in subsection (a) shall not be treated as meeting the filing requirements under paragraph (1) unless the fact of filing is entered and recorded in the index referred to in subparagraph (B) in such a manner that a reasonable inspection of the index will reveal the existence of the lien.

6323(f)(5) NATIONAL FILING SYSTEMS. --The filing of a notice of lien shall be governed solely by this title and shall not be subject to any other Federal law establishing a place or places for the filing of liens or encumbrances under a national filing system.

6323(g) REFILING OF NOTICE. --For purposes of this section --

6323(g)(1) GENERAL RULE. --Unless notice of lien is refiled in the manner prescribed in paragraph (2) during the required refiling period, such notice of lien shall be treated as filed on the date on which it is filed (in accordance with subsection (f)) after the expiration of such refiling period.

6323(g)(2) PLACE FOR FILING. --A notice of lien refiled during the required filing period shall be effective only --

6323(g)(2)(A) if --

6323(g)(2)(A)(i) such notice of lien is refiled in the office in which the prior notice of lien was filed, and

6323(g)(2)(A)(ii) in the case of real property, the fact of refiling is entered and recorded in an index to the extent required by subsection (f)(4); and

6323(g)(2)(B) in any case in which, 90 days or more prior to the date of a refiling of notice of lien under subparagraph (A), the Secretary received written information (in the manner prescribed in regulations issued by the Secretary) concerning a change in the taxpayer's residence, if a notice of such lien is also filed in accordance with subsection (f) in the State in which such residence is located.

6323(g)(3) REQUIRED REFILING PERIOD. --In the case of any notice of lien, the term "required refiling period" means --

6323(g)(3)(A) the one-year period ending 30 days after the expiration of 10 years after the date of the assessment of the tax, and

6323(g)(3)(B) the one-year period ending with the expiration of 10 years after the close of the preceding required refiling period for such notice of lien.

6323(g)(4) TRANSITIONAL RULE. --Notwithstanding paragraph (3), if the assessment of the tax was made before January 1, 1962, the first required refiling period shall be the calendar year 1967.

6323(h) DEFINITIONS. --For purposes of this section and section 6324 --

6323(h)(1) SECURITY INTEREST. --The term "security interest" means any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time (A) if, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and (B) to the extent that, at such time, the holder has parted with money or money's worth.

6323(h)(2) MECHANIC'S LIENOR. --The term "mechanic's lienor" means any person who under local law has a lien on real property (or on the proceeds of a contract relating to real property) for services, labor, or materials furnished in connection with the construction or improvement of such property. For purposes of the preceding sentence, a person has a lien on the earliest date such lien becomes valid under local law against subsequent purchasers without actual notice, but not before he begins to furnish the services, labor, or materials.

6323(h)(3) MOTOR VEHICLE. --The term "motor vehicle" means a self-propelled vehicle which is registered for highway use under the laws of any State or foreign country.

6323(h)(4) SECURITY. --The term "security" means any bond, debenture, note, or certificate or other evidence of indebtedness, issued by a corporation or a government or political subdivision thereof, with interest coupons or in registered form, share of stock, voting trust certificate, or any certificate of interest or participation in, certificate of deposit or receipt for, temporary or interim certificate for, or warrant or right to subscribe to or purchase, any of the foregoing; negotiable instrument; or money.

6323(h)(5) TAX LIEN FILING. --The term "tax lien filing" means the filing of notice (referred to in subsection (a)) of the lien imposed by section 6321.

6323(h)(6) PURCHASER. --The term "purchaser" means a person who, for adequate and full consideration in money or money's worth, acquires an interest (other than a lien or security interest) in property which is valid under local law against subsequent purchasers without actual notice. In applying the preceding sentence for purposes of subsection (a) of this section, and for purposes of section 6324 --

6323(h)(6)(A) a lease of property,

6323(h)(6)(B) a written executory contract to purchase or lease property,

6323(h)(6)(C) an option to purchase or lease property or any interest therein, or

6323(h)(6)(D) an option to renew or extend a lease of property,

which is not a lien or security interest shall be treated as an interest in property. 6323(i) SPECIAL RULES. --

6323(i)(1) ACTUAL NOTICE OR KNOWLEDGE. --For purposes of this subchapter, an organization shall be deemed for purposes of a particular transaction to have actual notice or knowledge of any fact from the time such fact is brought to the attention of the individual conducting such transaction, and in any event from the time such fact would have been brought to such individual's attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routine. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his regular duties or unless he has reason to know of the transaction and that the transaction would be materially affected by the information.

6323(i)(2) SUBROGATION. --Where, under local law, one person is subrogated to the rights of another with respect to a lien or interest, such person shall be subrogated to such rights for purposes of any lien imposed by section 6321 or 6324.

6323(i)(3) FORFEITURES. --For purposes of this subchapter, a forfeiture under local law of property seized by a law enforcement agency of a State, county, or other local governmental subdivision shall relate back to the time of seizure, except that this paragraph shall not apply to the extent that under local law the holder of an intervening claim or interest would have priority over the interest of the State, county, or other local governmental subdivision in the property.

6323(i)(4) COST-OF-LIVING ADJUSTMENT. --In the case of notices of liens imposed by section 6321 which are filed in any calendar year after 1998, each of the dollar amounts under paragraph (4) or (7) of subsection (b) shall be increased by an amount equal to --

6323(i)(4)(A) such dollar amount, multiplied by

6323(i)(4)(B) the cost-of-living adjustment determined under section 1(f)(3) for the calendar year, determined by substituting "calendar year 1996" for "calendar year 1992" in subparagraph (B) thereof.

If any amount as adjusted under the preceding sentence is not a multiple of $10, such amount shall be rounded to the nearest multiple of $10.

6323(j) WITHDRAWAL OF NOTICE IN CERTAIN CIRCUMSTANCES. --

6323(j)(1) IN GENERAL. --The Secretary may withdraw a notice of a lien filed under this section and this chapter shall be applied as if the withdrawn notice had not been filed, if the Secretary determines that --

6323(j)(1)(A) the filing of such notice was premature or otherwise not in accordance with administrative procedures of the Secretary,

6323(j)(1)(B) the taxpayer has entered into an agreement under section 6159 to satisfy the tax liability for which the lien was imposed by means of installment payments, unless such agreement provides otherwise,

6323(j)(1)(C) the withdrawal of such notice will facilitate the collection of the tax liability, or

6323(j)(1)(D) with the consent of the taxpayer or the National Taxpayer Advocate, the withdrawal of such notice would be in the best interests of the taxpayer (as determined by the National Taxpayer Advocate) and the United States.

Any such withdrawal shall be made by filing notice at the same office as the withdrawn notice. A copy of such notice of withdrawal shall be provided to the taxpayer.

6323(j)(2) NOTICE TO CREDIT AGENCIES, ETC. --Upon written request by the taxpayer with respect to whom a notice of a lien was withdrawn under paragraph (1), the Secretary shall promptly make reasonable efforts to notify credit reporting agencies, and any financial institution or creditor whose name and address is specified in such request, of the withdrawal of such notice. Any such request shall be in such form as the Secretary may prescribe.

REGULATIONS: §301.6323(a)-1., Purchasers, holders of security interests, mechanic's lienors, and judgment lien creditors

(a) Invalidity of lien without notice. --The lien imposed by section 6321 is not valid against any purchaser (as defined in paragraph (f) of §301.6323(h)-1), holder of a security interest (as defined in paragraph (a) of §301.6323(h)-1), mechanic's lienor (as defined in paragraph (b) of §301.6323(h)-1), or judgment lien creditor (as defined in paragraph (g) of §301.6323(h)-1) until a notice of lien is filed in accordance with §301.6323(f)-1. Except as provided by section 6323, if a person becomes a purchaser, holder of a security interest, mechanic's lienor, or judgment lien creditor after a notice of lien is filed in accordance with §301.6323(f)-1, the interest acquired by such person is subject to the lien imposed by section 6321.

(b) Cross references. --For provisions relating to the protection afforded a security interest arising after tax lien filing, which interest is covered by a commercial transactions financing agreement, real property construction or improvement financing agreement, or an obligatory disbursement agreement, see §§301.6323(c)-1, 301.6323(c)-2, and 301.6323(c)-3, respectively. For provisions relating to the protection afforded to a security interest coming into existence by virtue of disbursements made before the 46th day after the date of tax lien filing, see §301.6323(d)-1. For provisions relating to priority afforded to interest and certain other expenses with respect to a lien or security interest having priority over the lien imposed by section 6321, see §301.6323(e)-1. For provisions relating to certain other interests arising after tax lien filing, see §301.6323(b)-1. [Reg. §301.6323(a)-1.]

Section 301.6323(b)-1., Protection for certain interests even though notice filed

(a) Securities

(1) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid with respect to a security (as defined in paragraph (d) of §301.6323(h)-1) against --

(i) A purchaser (as defined in paragraph (f) of §301.6323(h)-1) of the security who at the time of purchase did not have actual notice or knowledge (as defined in paragraph (a) of §301.6323(i)-1) of the existence of the lien;

(ii) A holder of a security interest (as defined in paragraph (a) of §301.6323(h)-1) in the security who did not have actual notice or knowledge (as defined in paragraph (a) of §301.6323(i)-1) of the existence of the lien at the time the security interest came into existence or at the time such security interest was acquired from a previous holder for a consideration in money or money's worth; or

(iii) A transferee of an interest protected under subdivision (i) or (ii) of this subparagraph to the same extent the lien is invalid against his transferor.

For purposes of subdivision (iii) of this subparagraph, no person can improve his position with respect to the lien by reacquiring the interest from an intervening purchaser or holder of a security interest against whom the lien is invalid.

(2) Examples. --The application of this paragraph may be illustrated by the following examples:

Example (1). On May 1, 1969, in accordance with §301.6323(f)-1, a notice of lien is filed with respect to A's delinquent tax liability. On May 20, 1969, A sells 100 shares of common stock in X corporation to B, who, on the date of the sale, does not have actual notice or knowledge of the existence of the lien. Because B purchased the stock without actual notice or knowledge of the lien, under subdivision (i) of subparagraph (1) of this paragraph, the stock purchased by B is not subject to the lien.

Example (2). Assume the same facts as in example (1) except that on May 30, 1969, B sells the 100 shares of common stock in X corporation to C who on May 5, 1969, had actual notice of the existence of the tax lien against A. Because the X stock when purchased by B was not subject to the lien, under subdivision (iii) of subparagraph (1) of this paragraph, the stock purchased by C is not subject to the lien. C succeeds to B's rights, even though C had actual notice of the lien before B's purchase.

Example (3). On June 1, 1970, in accordance with §301.6323(f)-1, a notice of lien is filed with respect to D's delinquent tax liability. D owns 20 $1,000 bonds issued by the Y company. On June 10, 1970, D obtains a loan from M bank for $5,000 using the Y company bonds as collateral. At the time the loan is made M bank does not have actual notice or knowledge of the existence of the tax lien. Because M bank did not have actual notice or knowledge of the lien when the security interest came into existence, under subdivision (ii) of subparagraph (1) of this paragraph, the tax lien is not valid against M bank to the extent of its security interest.

Example (4). Assume the same facts as in example (3) except that on June 19, 1970, M bank assigns the chose in action and its security interest to N, who had actual notice or knowledge of the existence of the lien on June 1, 1970. Because the security interest was not subject to the lien to the extent of M bank's security interest, the security interest held by N is to the same extent entitled to priority over the tax lien because N succeeds to M bank's rights. See subdivision (iii) of subparagraph (1) of this paragraph.

Example (5). On July 1, 1970, in accordance with §301.6323(f)-1, a notice of lien is filed with respect to E's delinquent tax liability. E owns ten $1,000 bonds issued by the Y company. On July 5, 1970, E borrows $4,000 from F and delivers the bonds to F as collateral for the loan. At the time the loan is made, F has actual knowledge of the existence of the tax lien and, therefore, holds the security interest subject to the lien on the bonds. On July 10, 1970, F sells the security interest to G for $4,000 and delivers the Y company bonds pledged as collateral. G does not have actual notice or knowledge of the existence of the lien on July 10, 1970. Because G did not have actual notice or knowledge of the lien at the time he purchased the security interest, under subdivision (ii) of subparagraph (1) of this paragraph, the tax lien is not valid against G to the extent of his security interest.

Example (6). Assume the same facts as in example (5) except that, instead of purchasing the security interest from F on July 10, 1970, G lends $4,000 to F and takes a security interest in F's security interest in the bonds on that date. Because G became the holder of a security interest in a security interest after notice of lien was filed and does not directly have a security interest in a security, the security interest held by G is not entitled to a priority over the tax lien under the provisions of subparagraph (1) of this paragraph.

(b) Motor vehicles

(i) At the time of the purchase, the purchaser did not have actual notice or knowledge (as defined in paragraph (a) of §301.6323(i)-1) of the existence of the lien, and

(ii) Before the purchaser obtains such notice or knowledge, he has acquired actual possession of the motor vehicle and has not thereafter relinquished actual possession to the seller or his agent.

(2) Examples. --The application of this paragraph may be illustrated by the following examples:

Example (1). A, a delinquent taxpayer against whom a notice of tax lien has been filed in accordance with §301.6323(f)-1, sells his automobile (which qualifies as a motor vehicle under paragraph (c) of §301.6323(h)-1) to B, an automobile dealer. B takes actual possession of the automobile and does not thereafter relinquish actual possession to the seller or his agent. Subsequent to his purchase, B learns of the existence of the tax lien against A. Even though notice of lien was filed before the purchase, the lien is not valid against B, because B did not know of the existence of the lien before the purchase and before acquiring actual possession of the vehicle.

Example (2). C is a wholesaler of used automobiles. A notice of lien has been filed with respect to C's delinquent tax liability in accordance with §301.6323(f)-1. Subsequent to such filing, D, a used automobile dealer, purchases and takes actual possession of 20 automobiles (which qualify as motor vehicles under the provisions of paragraph (c) of §301.6323(h)-1) from C at an auction and places them on his lot for sale. C does not reacquire possession of any of the automobiles. At the time of his purchase, D does not have actual notice or knowledge of the existence of the lien against C. Even though notice of lien was filed before D's purchase, the lien was not valid against D because D did not know of the existence of the lien before the purchase and before acquiring actual possession of the vehicles.

(3) Cross reference. --For provisions relating to additional circumstances in which the lien imposed by section 6321 may not be valid against the purchaser of tangible personal property (including a motor vehicle) purchased at retail, see paragraph (c) of this section.

(1) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid against a purchaser (as defined in paragraph (f) of §301.6323(h)-1) of tangible personal property purchased at a retail sale (as defined in subparagraph (2) of this paragraph) unless at the time of purchase the purchaser intends the purchase to (or knows that the purchase will) hinder, evade, or defeat the collection of any tax imposed by the Internal Revenue Code of 1954.

(2) Definition of retail sale. --For purposes of this paragraph, the term "retail sale" means a sale, made in the ordinary course of the seller's trade or business, of tangible personal property of which the seller is the owner. Such term includes a sale in customary retail quantities by a seller who is going out of business, but does not include a bulk sale or an auction sale in which goods are offered in quantities substantially greater than are customary in the ordinary course of the seller's trade or business or an auction sale of goods the owner of which is not in the business of selling such goods.

(3) Example. --The application of this paragraph may be illustrated by the following example:

Example. A purchases a refrigerator from the M company, a retail appliance dealer. Prior to such purchase, a notice of lien was filed with respect to M's delinquent tax liability in accordance with §301.6323(f)-1. At the time of the purchase A knows of the existence of the lien. However, A does not intend the purchase to hinder, evade, or defeat the collection of any internal revenue tax, and A does not have any reason to believe that the purchase will affect the collection of any internal revenue tax. Even though notice of lien was filed before the purchase, the lien is not valid against A because A in good faith purchased the refrigerator at retail in the ordinary course of the M company's business.

(d) Personal property purchased in casual sale

(1) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid against a purchaser (as defined in §301.6323(h)-1(f)) of household goods, personal effects, or other tangible personal property of a type described in §301.6334-1 (which includes wearing apparel; school books; fuel, provisions, furniture, arms for personal use, livestock, and poultry (whether or not the seller is the head of a family); and books and tools of a trade, business, or profession (whether or not the trade, business, or profession of the seller)), purchased, other than for resale, in a casual sale for less than $250 (excluding interest and expenses described in §301.6323(e)-1). For purposes of this paragraph, a casual sale is a sale not made in the ordinary course of the seller's trade or business.

(2) Limitation. --This paragraph applies only if the purchaser does not have actual notice or knowledge (as defined in paragraph (a) of §301.6323(i)-1) --

(i) Of the existence of the tax lien, or

(ii) That the sale is one of a series of sales.

For purposes of subdivision (ii) of this subparagraph, a sale is one of a series of sales if the seller plans to dispose of, in separate transactions, substantially all of his household goods, personal effects, and other tangible personal property described in §301.6334-1.

(3) Examples. --The application of this paragraph may be illustrated by the following examples:

Example (1). A, an attorney's widow, sells a set of law books for $200 to B, for B's own use. Prior to the sale a notice of lien was filed with respect to A's delinquent tax liability in accordance with §301.6323(f)-1. B has no actual notice or knowledge of the tax lien. In addition, B does not know that the sale is one of a series of sales. Because the sale is a casual sale for less than $250 and involves books of a profession (tangible personal property of a type described in §301.6334-1, irrespective of the fact that A has never engaged in the legal profession), the tax lien is not valid against B even though a notice of lien was filed prior to the time of B's purchase.

Example (2). Assume the same facts as in example (1) except that B purchases the books for resale in his second-hand bookstore. Because B purchased the books for resale, he purchased the books subject to the lien.

Example (3). In an advertisement appearing in a local newspaper, G indicates that he is offering for sale a lawn mower, a used television set, a desk, a refrigerator, and certain used dining room furniture. In response to the advertisement, H purchases the dining room furniture for $200. H does not receive any information which would impart notice of a lien, or that the sale is one of a series of sales, beyond the information contained in the advertisement. Prior to the sale a notice of lien was filed with respect to G's delinquent tax liability in accordance with §301.6323(f)-1. Because H had no actual notice or knowledge that substantially all of G's household goods were being sold, or that the sale is one of a series of sales and because the sale is a casual sale for less than $250, H does not purchase the dining room furniture subject to the lien. The household goods are of a type described in §301.6334-1(a)(2) irrespective of whether G is the head of a family or whether all such household goods offered for sale exceed $500 in value.

(e) Personal property subject to possessory liens. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid against a holder of a lien on tangible personal property which under local law secures the reasonable price of the repair or improvement of the property if the property is, and has been, continuously in the possession of the holder of the lien from the time the possessory lien arose. For example, if local law gives an automobile repairman the right to retain possession of an automobile he has repaired as security for payment of the repair bill and the repairman retains continuous possession of the automobile until his lien is satisfied, a tax lien filed in accordance with §301.6323(f)(1) which has attached to the automobile will not be valid to the extent of the reasonable price of the repairs. It is immaterial that the notice of tax lien was filed before the repairman undertook his work or that he knew of the lien before undertaking the work.

(f) Real property tax and special assessment liens

(1) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid against the holder of another lien upon the real property (regardless of when such other lien arises), if such other lien is entitled under local law to priority over security interests in real property which are prior in time and if such other lien on real property secures payment of --

(i) A tax of general application levied by any taxing authority based upon the value of the property;

(ii) A special assessment imposed directly upon the property by any taxing authority, if the assessment is imposed for the purpose of defraying the cost of any public improvement; or

(iii) Charges for utilities or public services furnished to the property by the United States, a State or political subdivision thereof, or an instrumentality of any one or more of the foregoing.

(2) Examples. --The application of this paragraph may be illustrated by the following examples:

Example (1). A owns Blackacre in the city of M. A notice of lien affecting Blackacre is filed in accordance with §301.6323(f)-1. Subsequent to the filing of the notice of lien, the city of M acquires a lien against Blackacre to secure payment of real estate taxes. Such taxes are levied against all property in the city in proportion to the value of the property. Under local law, the holder of a lien for real property taxes is entitled to priority over a security interest in real property even though the security interest is prior in time. Because the real property tax lien held by the city of M secures payment of a tax of general application and is entitled to priority over security interests which are prior in time, the lien held by the city of M is entitled to priority over the Federal tax lien with respect to Blackacre.

Example (2). B owns Whiteacre in N county. A notice of lien affecting Whiteacre is filed in accordance with §301.6323(f)-1. Subsequent to the filing of the notice of lien, N county constructs a sidewalk, paves the street, and installs water and sewer lines adjacent to Whiteacre. In order to defray the cost of these improvements, N county imposes upon Whiteacre a special assessment which under local law results in a lien upon Whiteacre that is entitled to priority over security interests that are prior in time. Because the special assessment lien is (i) entitled under local law to priority over security interests which are prior in time, and (ii) imposed directly upon real property to defray the cost of a public improvement, the special assessment lien has priority over the Federal tax lien with respect to Whiteacre.

Example (3). C owns Greenacre in town O. A notice of lien affecting Greenacre is filed in accordance with §301.6323(f)-1. Town O furnishes water and electricity to Greenacre and periodically collects a fee for these services. Subsequent to the filing of the notice of lien, town O supplies water and electricity to Greenacre, and C fails to pay the charges for these services. Under local law, town O acquires a lien to secure charges for the services, and this lien has priority over security interests which are prior in time. Because the lien of town O (i) is for services furnished to the real property and (ii) has priority over earlier security interests, town O's lien has priority over the Federal tax lien with respect to Greenacre.

(g) Residential property subject to a mechanic's lien for certain repairs and improvements

(1) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid against a mechanic's lienor (as defined in §301.6323(h)-1(b)) who holds a lien for the repair or improvement of a personal residence if --

(i) The residence is occupied by the owner and contains no more than four dwelling units, and

(ii) The contract price on the prime contract with the owner for the repair or improvement (excluding interest and expenses described in §301.6323(e)-1) is not more than $1,000.

For purposes of subdivision (ii) of this subparagraph, the amounts of subcontracts under the prime contract with the owner are not to be taken into consideration for purposes of computing the $1,000 prime contract price. It is immaterial that the notice of tax lien was filed before the contractor undertakes his work or that he knew of the lien before undertaking the work.

(2) Examples. --The application of this paragraph may be illustrated by the following examples:

Example (1). A owns a building containing four apartments, one of which he occupies as his personal residence. A notice of lien which affects the building is filed in accordance with §301.6323(f)-1. Thereafter A enters into a contract with B in the amount of $800, which includes labor and materials, to repair the roof of the building. B purchases roofing shingles from C for $300. B completes the work and A fails to pay B the agreed amount. In turn, B fails to pay C for the shingles. Under local law, B and C acquire mechanic's liens on A's building. Because the contract price on the prime contract with A is not more than $1,000 and under local law B and C acquire mechanic's liens on A's building, the liens of B and C have priority over the Federal tax lien.

Example (2). Assume the same facts as in example (1), except that the amount of the prime contract between A and B is $1,100. Because the amount of the prime contract with the owner, A, is in excess of $1,000, the tax lien has priority over the entire amount of each of the mechanic's liens of B and C, even though the amount of the contract between B and C is $300.

Example (3). Assume the same facts as in example (1), except that A and B do not agree in advance upon the amount due under the prime contract but agree that B will perform the work for the cost of materials and labor plus 10 percent of such cost. When the work is completed, it is determined that the total amount due is $850. Because the prime contract price is not more than $1,000 and under local law B and C acquire mechanic's liens on A's residence, the liens of B and C have priority over the Federal tax lien.

(h) Attorney's liens

(1) In general. --Even though notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid against an attorney who, under local law, holds a lien upon, or a contract enforceable against, a judgment or other amount in settlement of a claim or of a cause of action. The priority afforded an attorney's lien under this paragraph shall not exceed the amount of the attorney's reasonable compensation for obtaining the judgment or procuring the settlement. For purposes of this paragraph, reasonable compensation means the amount customarily allowed under local law for an attorney's services for litigating or settling a similar case or administrative claim. However, reasonable compensation shall be determined on the basis of the facts and circumstances of each individual case. It is immaterial that the notice of tax lien is filed before the attorney undertakes his work or that the attorney knows of the tax lien before undertaking his work. This paragraph does not apply to an attorney's lien which may arise from the defense of a claim or cause of action against a taxpayer except to the extent such lien is held upon a judgment or other amount arising from the adjudication or settlement of a counterclaim in favor of the taxpayer. In the case of suits against the taxpayer, see §301.6325-1(d)(2) for rules relating to the subordination of the tax lien to facilitate tax collection.

(2) Claim or cause of action against the United States. --Paragraph (h)(1) of this section does not apply to an attorney's lien with respect to --

(i) Any judgment or other fund resulting from the successful litigation or settlement of an administrative claim or cause of action against the United States to the extent that the United States, under any legal or equitable right, offsets its liability under the judgment or settlement against any liability of the taxpayer to the United States, or

(ii) Any amount credited against any liability of the taxpayer in accordance with section 6402.

(3) Examples. --The provisions of this paragraph may be illustrated by the following examples:

Example (1). A notice of lien is filed against A in accordance with §301.6323(f)-1. Subsequently, A is struck by an automobile and retains B, an attorney to institute suit on A's behalf against the operator of the automobile. B knows of the tax lien before he begins his work. Under local law, B is entitled to a lien upon any recovery in order to secure payment of his fee. A is awarded damages of $10,000. B charges a fee of $3,000 which is the fee customarily allowed under local law in similar cases and which is found to be reasonable under the circumstances of this particular case. Because, under local law, B holds a lien for the amount of his reasonable compensation for obtaining the judgment, B's lien has priority over the Federal tax lien.

Example (2). Assume the same facts as in example (1), except that before suit is instituted A and the owner of the automobile settle out of court for $7,500. B charges a reasonable and customary fee of $1,800 for procuring the settlement and under local law holds a lien upon the settlement in order to secure payment of the fee. Because, under local law, B holds a lien for the amount of his reasonable compensation for obtaining the settlement, B has priority over the Federal tax lien.

Example (3). In accordance with §301.6323(f)-1, a notice of lien in the amount of $8,000 is filed against C, a contractor. Subsequently C retains D, an attorney, to initiate legal proceedings to recover the amount allegedly due him for construction work he has performed for the United States. C and D enter into an agreement which provides that D will receive a reasonable and customary fee of $2,500 as compensation for his services. Under local law, the agreement will give rise to a lien which is enforceable by D against any amount recovered in the suit. C is successful in the suit and is awarded $10,000. D claims $2,500 of the proceeds as his fee. The United States, however, exercises its right to set-off and applies $8,000 of the $10,000 award to satisfy C's tax liability. Because the $10,000 award resulted from the successful litigation of a cause of action against the United States, B's contract for attorney's fees is not enforceable against the amount recovered to the extent the United States offsets its liability under the judgment against C's tax liability. It is immaterial that D had no notice or knowledge of the tax lien at the time he began work on the case.

(i) Certain insurance contracts

(1) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid with respect to a life insurance, endowment, or annuity contract, against an organization which is the insurer under the contract, at any time --

(i) Before the insuring organization has actual notice or knowledge (as defined in paragraph (a) of §301.6323(i)-1) of the existence of the tax lien,

(ii) After the insuring organization has actual notice or knowledge of the lien (as defined in paragraph (a) of §301.6323(i)-1), with respect to advances (including contractual interest thereon as provided in paragraph (a) of §301.6323(e)-1) required to be made automatically to maintain the contract in force under an agreement entered into before the insuring organization had such actual notice or knowledge, or

(iii) After the satisfaction of a levy pursuant to section 6332(b), unless and until the district director delivers to the insuring organization a notice (for example, another notice of levy, a letter, etc.), executed after the date of such satisfaction, that the lien exists.

Delivery of the notice described in subdivision (iii) of this subparagraph may be made by any means, including regular mail, and delivery of the notice shall be effective only from the time of actual receipt of the notification by the insuring organization. The provisions of this paragraph are applicable to matured as well as unmatured insurance contracts.

(2) Examples. --The provisions of this paragraph may be illustrated by the following examples:

Example (1). On May 1, 1964, the X insurance company issues a life insurance policy to A. On June 1, 1970, a tax assessment is made against A, and on June 2, 1970, a notice of lien with respect to the assessment is filed in accordance with §301.6323(f)-1. On July 1, 1970, without actual notice or knowledge of the tax lien, the X company makes a "policy loan" to A. Under subparagraph (1)(i) of this paragraph, the loan, including interest (in accordance with the provisions of paragraph (a) of §301.6323(e)-1), will have priority over the tax lien because X company did not have actual notice or knowledge of the tax lien at the time the policy loan was made.

Example (2). On May 1, 1964, B enters into a life insurance contract with the Y insurance company. Under one of the provisions of the contract, in the event a premium is not paid, Y is to advance out of the cash loan value of the policy the amount of an unpaid premium in order to maintain the contract in force. The contract also provides for interest on any advances so made. On June 1, 1971, a tax assessment is made against B, and on June 2, 1971, in accordance with section 6323(f)-1, a notice of lien is filed. On July 1, 1971, B fails to pay the premium due on that date, and Y makes an automatic premium loan to keep the policy in force. At the time the automatic premium loan is made, Y had actual knowledge of the tax lien. Under subparagraph (1)(ii) of this paragraph, the lien is not valid against Y with respect to the advance (and the contractual interest thereon), because the advance was required to be made automatically under an agreement entered into before Y had actual notice or knowledge of the tax lien.

Example (3). On May 1, 1964, C enters into a life insurance contract with the Z insurance company. On January 4, 1971, an assessment is made against C for $5,000 unpaid income taxes, and on January 11, 1971, in accordance with §301.6323(f)-1, a notice of lien is filed. On January 29, 1971, a notice of levy with respect to C's delinquent tax is served on Z company. The amount which C could have had advanced to him from Z company under the contract on the 90th day after service of the notice of levy on Z company is $2,000. The Z company pays $2,000 pursuant to the notice of levy, thereby satisfying the levy upon the contract in accordance with section 6332(b). On February 1, 1973, Z company advances $500 to C, which is the increment in policy loan value since satisfaction of the levy of January 29, 1971. On February 5, 1973, a new notice of levy for the unpaid balance of the delinquent taxes, executed after the first levy was satisfied, is served upon Z company. Because the new notification was not received by Z company until after the policy loan was made, under paragraph (1)(iii) of this paragraph, the tax lien is not valid against Z company with respect to the policy loan (including interest thereon in accordance with paragraph (a) of §301.6323(e)-1).

Example (4). On June 1, 1973, a tax assessment is made against D and on June 2, 1973, in accordance with §301.6323(f)-1, a notice of lien with respect to the assessment is filed. On July 2, 1973, D executes an assignment of his rights, as the insured, under an insurance contract to M bank as security for a loan. M bank holds its security interest subject to the lien because it is not an insurer entitled to protection under section 6323(b)(9) and did not become a holder of the security interest prior to the filing of the notice of lien for purposes of section 6323(a). It is immaterial that a notice of levy had not been served upon the insurer before the assignment to M bank was made.

(j) Passbook loans

(1) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid against an institution described in section 581 or 591 to the extent of any loan made by the institution which is secured by a savings deposit, share, or other account evidenced by a passbook (as defined in subparagraph 2 of this paragraph) if the institution has been continuously in possession of the passbook from the time the loan is made. This paragraph applies only to a loan made without actual notice or knowledge (as defined in paragraph (a) of §301.6323(i)-1) of the existence of the lien. Even though an original passbook loan is made without actual notice or knowledge of the existence of the lien, this paragraph does not apply to any additional loan made after knowledge of the lien is acquired by the institution even if it continues to retain the passbook from the time the original passbook loan is made.

(2) Definition of passbook. --For purposes of this paragraph, the term "passbook" includes --

(i) Any tangible evidence of a savings deposit, share, or other account which, when in the possession of the bank or other savings institution, will prevent a withdrawal from the account to the extent of the loan balance, and

(ii) Any procedure or system, such as an automatic data processing system, the use of which by the bank or other savings institution will prevent a withdrawal from the account to the extent of the loan balance.

(3) Example. --On June 1, 1970, a tax assessment is made against A and on June 2, 1970, a notice of lien with respect to the assessment is filed in accordance with §301.6323(f)-1. A owns a savings account at the M bank with a balance of $1,000. On June 10, 1970, A borrows $300 from the M bank using the savings account as security therefor. The M bank is continuously in possession of the passbook from the time the loan is made and does not have actual notice or knowledge of the lien at the time of the loan. The tax lien is not valid against M bank with respect to the passbook loan of $300 and accrued interest and expenses entitled to priority under §301.6323(e)-1. Upon service of a notice of levy, the M bank must pay over the savings account balance in excess of the amount of its protected interest in the account as determined on the date of the levy. [Reg. §301.6323(b)-1.]

§ 301.6323(c)-1., Protection for commercial transactions financing agreements

(a) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid with respect to a security interest which:

(1) Comes into existence after the tax lien filing,

(2) Is in qualified property covered by the terms of a commercial transactions financing agreement entered into before the tax lien filing, and

(3) Is protected under local law against a judgment lien arising, as of the time of the tax lien filing, out of an unsecured obligation.

See paragraphs (a) and (e) of §301.6323(h)-1 for definitions of the terms "security interest" and "tax lien filing," respectively. For purposes of this section, a judgment lien is a lien held by a judgment lien creditor as defined in paragraph (g) of §301.6323(h)-1.

(b) Commercial transactions financing agreement. --For purposes of this section, the term "commercial transactions financing agreement" means a written agreement entered into by a person in the course of his trade or business --

(1) To make loans to the taxpayer (whether or not at the option of the person agreeing to make such loans) to be secured by commercial financing security acquired by the taxpayer in the ordinary course of his trade or business, or

(2) To purchase commercial financing security, other than inventory, acquired by the taxpayer in the ordinary course of his trade or business.

Such an agreement qualifies as a commercial transactions financing agreement only with respect to loans or purchases made under the agreement before (i) the 46th day after the date of tax lien filing or, (ii) the time when the lender or purchaser has actual notice or knowledge (as defined in paragraph (a) of §301.6323(i)-1) of the tax lien filing, if earlier. For purposes of this paragraph, a loan or purchase is considered to have been made in the course of the lender's or purchaser's trade or business if such person is in the business of financing commercial transactions (such as a bank or commercial factor) or if the agreement is incidental to the conduct of such person's trade or business. For example, if a manufacturer finances the accounts receivable of one of his customers, he is considered to engage in such financing in the course of his trade or business. The extent of the priority of the lender or purchaser over the tax lien is the amount of his disbursements made before the 46th day after the date the notice of tax lien is filed, or made before the day (before such 46th day) on which the lender or purchaser has actual notice or knowledge of the filing of the notice of the tax lien.

(1) In general. --The term "commercial financing security" means --

(i) Paper of a kind ordinarily arising in commercial transactions,

(ii) Accounts receivable (as defined in subparagraph (2) of this paragraph),

(iii) Mortgages on real property, and

(iv) Inventory.

For purposes of this subparagraph, the term "paper of a kind ordinarily arising in commercial transactions" in general includes any written document customarily used in commercial transactions. For example, such written documents include paper giving contract rights (as defined in subparagraph (2) of this paragraph), chattel paper, documents of title to personal property, and negotiable instruments or securities. The term "commercial financing security" does not include general intangibles such as patents or copyrights. A mortgage on real estate (including a deed of trust, contract for sale, and similar instrument) may be commercial financing security if the taxpayer has an interest in the mortgage as a mortgagee or assignee. The term "commercial financing security" does not include a mortgage where the taxpayer is the mortgagor of realty owned by him. For purposes of this subparagraph, the term "inventory" includes raw materials and goods in process as well as property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.

(2) Definitions. --For purposes of §§301.6323(d)-1, 301.6323(h)-1 and this section --

(i) A contract right is any right to payment under a contract not yet earned by performance and not evidenced by an instrument or chattel paper, and

(ii) An account receivable is any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper.

(d) Qualified property. --For purposes of paragraph (a) of this section, qualified property consists solely of commercial financing security acquired by the taxpayer-debtor before the 46th day after the date of tax lien filing. Commercial financing security acquired before such day may be qualified property even though it is acquired by the taxpayer after the lender received actual notice or knowledge of the filing of the notice of the tax lien. For example, although the receipt of actual notice or knowledge of the filing of the tax lien has the effect of ending the period within which protected disbursements may be made to the taxpayer, property which is acquired by the taxpayer after the lender receives actual notice or knowledge of such filing and before such 46th day, which otherwise qualifies as a commercial financing security, becomes commercial financing security to which the priority of the lender extends for loans made before he received the actual notice or knowledge. An account receivable (as defined in paragraph (c)(2)(ii) of this section) is acquired by a taxpayer at the time, and to the extent, a right to payment is earned by performance. Chattel paper, documents of title, negotiable instruments, securities, and mortgages on real estate are acquired by a taxpayer when he obtains rights in the paper or mortgage. Inventory is acquired by the taxpayer when title passes to him. A contract right (as defined in paragraph (c)(2)(i) of this section) is acquired by a taxpayer when the contract is made. Identifiable proceeds, which arise from the collection or disposition of qualified property by the taxpayer, are considered to be acquired at the time such qualified property is acquired if the secured party has a continuously perfected security interest in the proceeds under local law. The term "proceeds" includes whatever is received when collateral is sold, exchanged, or collected. For purposes of this paragraph, the term "identifiable proceeds" does not include money, checks and the like which have been commingled with other cash proceeds. Property acquired by the taxpayer after the 45th day following tax lien filing, by the expenditure of proceeds, is not qualified property.

(e) Purchaser treated as acquiring security interest. --A person who purchases commercial financing security, other than inventory, pursuant to a commercial transactions financing agreement is treated, for purposes of this section, as having acquired a security interest in the commercial financing security. In the case of a bona fide purchase at a discount, a purchaser of commercial financing security who satisfies the requirements of this section has priority over the tax lien to the full extent of the security.

(f) Examples. --The provisions of this section may be illustrated by the following examples:

Example (1). (i) On June 1, 1970, a tax is assessed against M, a tool manufacturer, with respect to his delinquent tax liability. On June 15, 1970, M enters into a written financing agreement with X, a bank. The agreement provides that, in consideration of such sums as X may advance to M, X is to have a security interest in all of M's presently owned and subsequently acquired commercial paper, accounts receivable, and inventory (including inventory in the manufacturing stages and raw materials). On July 6, 1970, notice of the tax lien is filed in accordance with §301.6323(f)-1. On August 3, 1970, without actual notice or knowledge of the tax lien filing, X advances $10,000 to M. On August 5, 1970, M acquires additional inventory through the purchase of raw materials. On August 20, 1970, M has accounts receivable, arising from the sale of tools, amounting to $5,000. Under local law X's security interest arising by reason of the $10,000 advance on August 3, 1970, has priority, with respect to the raw materials and accounts receivable, over a judgment lien against M arising July 6, 1970 (the date of the tax lien filing) out of an unsecured obligation.

(ii) Because the $10,000 advance was made before the 46th day after the tax lien filing, and the accounts receivable in the amount of $5,000 and the raw materials were acquired by M before such 46th day, X's $10,000 security interest in the accounts receivable and the inventory has priority over the tax lien. The priority of X's security interest also extends to the proceeds, received on or after the 46th day after the tax lien filing, from the liquidation of the accounts receivable and inventory held by M on August 20, 1970, if X has a continuously perfected security interest in identifiable proceeds under local law. However, the priority of X's security interest will not extend to other property acquired with such proceeds.

Example (2). Assume the same facts as in example (1) except that on July 15, 1970, X has actual knowledge of the tax lien filing. Because an agreement does not qualify as a commercial transactions financing agreement when a disbursement is made after tax lien filing with actual knowledge of the filing, X's security interest will not have priority over the tax lien with respect to the $10,000 advance made on August 3, 1970.

Example (3). Assume the same facts as in example (1) except that, instead of additional inventory, on August 5, 1970, M acquires an account receivable as the result of the sale of machinery which M no longer needs in his business. Even though the account receivable was acquired by taxpayer M before the 46th day after tax lien filing, the tax lien will have priority over X's security interest arising in the account receivable pursuant to the earlier written agreement because the account receivable was not acquired by the taxpayer in the ordinary course of his trade or business.

Example (4). Pursuant to a written agreement with the N Manufacturing Company entered into on January 4, 1971, Y, a commercial factor, purchases the accounts receivable arising out of N's regular sales to its customers. On November 1, 1971, in accordance with §301.6323(f)-1, a notice of lien is filed with respect to N's delinquent tax liability. On December 6, 1971, Y, without actual notice or knowledge of the tax lien filing, purchases all of the accounts receivable resulting from N's November 1971 sales. Y has taken appropriate steps under local law so that the December 6, 1971, purchase is protected against a judgment lien arising November 1, 1971 (the date of tax lien filing) out of an unsecured obligation. Because the purchaser of commercial financing security, other than inventory, is treated as having acquired a security interest in commercial financing security, and because Y otherwise meets the requirements of this section, the tax lien is not valid with respect to Y's December 6, 1971, purchase of N's accounts receivable. [Reg. §301.6323(c)-1.]

§ 301.6323(c)-2Protection for real property construction or improvement financing agreements

(a) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid with respect to a security interest which:

(1) Comes into existence after the tax lien filing,

(2) Is in qualified property covered by the terms of real property construction or improvement financing agreement entered into before the tax lien filing, and

(3) Is protected under local law against a judgment lien arising, as of the time of tax lien filing, out of an unsecured obligation.

For purposes of this section, it is immaterial that the holder of the security interest had actual notice or knowledge of the lien at the time disbursements are made pursuant to such an agreement. See paragraphs (a) and (e) of §301.6323(h)-1 for general definitions of the terms "security interest" and "tax lien filing." For purposes of this section, a judgment lien is a lien held by a judgment lien creditor as defined in paragraph (g) of §301.6323(h)-1.

(b) Real property construction or improvement financing agreement. --For purposes of this section, the term "real property construction or improvement financing agreement" means any written agreement to make cash disbursements (whether or not at the option of the party agreeing to make such disbursements):

(1) To finance the construction, improvement, or demolition of real property if the agreement provides for a security interest in the real property with respect to which the construction, improvement, or demolition has been or is to be made;

(2) To finance a contract to construct or improve, or demolish real property if the agreement provides for a security interest in the proceeds of the contract; or

(3) To finance the raising or harvesting of a farm crop or the raising of livestock or other animals if the agreement provides for a security interest in any property subject to the lien imposed by section 6321 at the time of tax lien filing, in the crop raised or harvested, or in the livestock or other animals raised.

For purposes of subparagraphs (1) and (2) of this paragraph, construction or improvement may include demolition. For purposes of any agreement described in subparagraph (3) of this paragraph, the furnishing of goods and services is treated as the disbursement of cash.

(1) In the case of an agreement described in paragraph (b)(1) of this section, the real property with respect to which the construction or improvement has been or is to be made;

(2) In the case of an agreement described in paragraph (b)(2) of this section, the proceeds of the contract to construct or improve real property; or

(3) In the case of an agreement described in paragraph (b)(3) of this section, property subject to the lien imposed by section 6321 at the time of tax lien filing, the farm crop raised or harvested, or the livestock or other animals raised.

(d) Examples. --The provisions of this paragraph may be illustrated by the following examples:

Example (1). A, in order to finance the construction of a dwelling on a lot owned by him, mortgages the property to B. The mortgage, executed January 4, 1971, includes an agreement that B will make cash disbursements to A as the construction progresses. On February 1, 1971, in accordance with §301.6323(f)-1, a notice of lien is filed with respect to A's delinquent tax liability. A continues the construction, and B makes cash disbursements on June 10, 1971, and December 10, 1971. Under local law B's security interest arising by virtue of the disbursements is protected against a judgment lien arising February 1, 1971 (the date of tax lien filing) out of an unsecured obligation. Because B is the holder of a security interest coming into existence by reason of cash disbursements made pursuant to a written agreement, entered into before tax lien filing, to make cash disbursements to finance the construction of real property, and because B's security interest is protected, under local law, against a judgment lien arising as of the time of tax lien filing out of an unsecured obligation, B's security interest has priority over the tax lien.

Example (2). (i) C is awarded a contract for the demolition of several buildings. On March 3, 1969, C enters into a written agreement with D which provides that D will make cash disbursements to finance the demolition and also provides that repayment of the disbursements is secured by any sums due C under the contract. On April 1, 1969, in accordance with §301.6323(f)-1, a notice of lien is filed with respect to C's delinquent tax liability. With actual notice of the tax lien, D makes cash disbursements to C on August 1, September 1, and October 1, 1969. Under local law D's security interest in the proceeds of the contract with respect to the disbursements is entitled to priority over a judgment lien arising on April 1, 1969 (the date of tax lien filing) out of an unsecured obligation.

(ii) Because D's security interest arose by reason of disbursements made pursuant to a written agreement, entered into before tax lien filing, to make cash disbursements to finance a contract to demolish real property, and because D's security interest is valid under local law against a judgment lien arising as of the time of tax lien filing out of an unsecured obligation, the tax filing out of an unsecured obligation, the tax lien is not valid with respect to D's security interest in the proceeds of the demolition contract.

Example (3). Assume the same facts as in example (2) and, in addition, assume that, as further security for the cash disbursements, the March 3, 1969 agreement also provides for a security interest in all of C's demolition equipment. Because the protection of the security interest arising from the disbursements made after tax lien filing under the agreement is limited under section 6323(c)(3) to the proceeds of the demolition contract and because, under the circumstances, the security interest in the equipment is not otherwise protected under section 6323, the tax lien will have priority over D's security interest in the equipment.

Example (4). (i) On January 2, 1969, F and G enter into a written agreement, whereby F agrees to provide G with cash disbursements, seed, fertilizer, and insecticides as needed by G, in order to finance the raising and harvesting of a crop on a farm owned by G. Under the terms of the agreement F is to have a security interest in the crop, the farm, and all other property then owned or thereafter acquired by G. In accordance with §301.6323(f)-1, on January 10, 1969, a notice of lien is filed with respect to G's delinquent tax liability. On March 3, 1969, with actual notice of the tax lien, F makes a cash disbursement of $5,000 to G and furnishes him seed, fertilizer, and insecticides having a value of $10,000. Under local law F's security interest, coming into existence by reason of the cash disbursement and the furnishing of goods, has priority over a judgment lien arising January 10, 1969 (the date of tax lien filing) out of an unsecured obligation.

(ii) Because F's security interest arose by reason of a disbursement (including the furnishing of goods) made under a written agreement which was entered into before tax lien filing and which constitutes an agreement to finance the raising or harvesting of a farm crop, and because F's security interest is valid under local law against a judgment lien arising as of the time of tax lien filing out of an unsecured obligation, the tax lien is not valid with respect to F's security interest in the crop even though a notice of lien was filed before the security interest arose. Furthermore, because the farm is property subject to the tax lien at the time of tax lien filing, F's security interest with respect to the farm also has priority over the tax lien.

Example (5). Assume the same facts as in example (4) and in addition that on October 1, 1969, G acquires several tractors to which F's security interest attaches under the terms of the agreement. Because the tractors are not property subject to the tax lien at the time of tax lien filing, the tax lien has priority over F's security interest in the tractors. [Reg. §301.6323(c)-2.]

§ 301.6323(c)-3., Protection for obligatory disbursement agreements

(a) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid with respect to a security interest which:

(1) Comes into existence after the tax lien filing,

(2) Is in qualified property covered by the terms of an obligatory disbursement agreement entered into before the tax lien filing, and

(3) Is protected under local law against a judgment lien arising, as of the time of tax lien filling, out of an unsecured obligation.

See paragraphs (a) and (e) of §301.6323(h)-1 for definitions of the terms "security interest" and "tax lien filing." For purposes of this section, a judgment lien is a lien held by a judgment lien creditor as defined in paragraph (g) of §301.6323(h)-1.

(b) Obligatory disbursement agreement. --For purposes of this section the term "obligatory disbursement agreement" means a written agreement, entered into by a person in the course of his trade or business, to make disbursements. An agreement is treated as an obligatory disbursement agreement only with respect to disbursements which are required to be made by reason of the intervention of the rights of a person other than the taxpayer. The obligation to pay must be conditioned upon an event beyond the control of the obligor. For example, the provisions of this section are applicable where an issuing bank obligates itself to honor drafts or other demands for payment on a letter of credit and a bank, in good faith, relies upon that letter of credit in making advances. The provisions of this section are also applicable, for example, where a bonding company obligates itself to make payments to indemnify against loss or liability and, under the terms of the bond, makes a payment with respect to a loss. The priority described in this section is not applicable, for example, in the case of an accommodation endorsement by an endorser who assumes his obligation other than in the course of his trade or business.

(c) Qualified property. --Except as provided under paragraph (d) of this section, the term "qualified property," for purposes of this section, means property subject to the lien imposed by section 6321 at the time of tax lien filing and, to the extent that the acquisition is directly traceable to the obligatory disbursement, property acquired by the taxpayer after tax lien filing.

(d) Special rule for surety agreements. --Where the obligatory disbursement agreement is an agreement insuring the performance of a contract of the taxpayer and another person, the term "qualified property" shall be treated as also including --

(1) The proceeds of the contract the performance of which was insured, and

(2) If the contract the performance of which was insured is a contract to construct or improve real property, to produce goods, or to furnish services, any tangible personal property used by the taxpayer in the performance of the insured contract.

For example, a surety company which holds a security interest, arising from cash disbursements made after tax lien filing under a payment or performance bond on a real estate construction project, has priority over the tax lien with respect to the proceeds of the construction contract and, in addition, with respect to any tangible personal property used by the taxpayer in the construction project if its security interest in the tangible personal property is protected under local law against a judgment lien arising, as of the time the tax lien was filed, out of an unsecured obligation.

(e) Examples. --This section may be illustrated by the following examples:

Example (1). (i) On January 2, 1969, H, an appliance dealer, in order to finance the acquisition from O of a large inventory of appliances, enters into a written agreement with Z, a bank. Under the terms of the agreement, in return for a security interest in all of H's inventory, presently owned and subsequently acquired, Z issues an irrevocable letter of credit to allow H to make the purchase. On December 31, 1968 and January 10, 1969, in accordance with §301.6323(f)-1, separate notices of lien are filed with respect to H's delinquent tax liabilities. On March 31, 1969, Z honors the letter of credit. Under local law, Z's security interest in both existing and after-acquired inventory is protected against a judgment lien arising on or after January 10, 1969, out of an unsecured obligation. Under local law, Z's security interest in the inventory purchased under the letter of credit qualifies as a purchase money security interest and is valid against persons acquiring security interests in or liens upon such inventory at any time.

(ii) Because Z's security interest in H's inventory did not arise under a written agreement entered into before the filing of notice of the first tax lien on December 31, 1968, that lien is superior to Z's security interest except to the extent of Z's purchase money security interest. Because Z's interest qualifies as a purchase money security interest with respect to the inventory purchased under the letter of credit, the tax liens attach under section 6321 only to the equity acquired by H, and the rights of Z in the inventory so purchased are superior even to the lien filed on December 31, 1968, without regard to this section.

(iii) Because Z's security interest arose by reason of disbursements made under a written agreement which was entered into before the filing of notice of the second tax lien on January 10, 1969, and which constitutes an agreement to make disbursements required to be made by reason of the intervention of the rights of O, a person other than the taxpayer, and because Z's security interest is valid under local law against a judgment lien arising as of the time of such tax lien filing on January 10, 1969, out of an unsecured obligation, the second tax lien is, under this section, not valid with respect to Z's security interest in inventory owned by H on January 10, 1969, as well as any after-acquired inventory directly traceable to Z's disbursements (apart from such greater protection as Z enjoys, with respect to the latter, under its purchase money security interest). No protection against the second tax lien is provided under this section with respect to a security interest in any other inventory acquired by H after January 10, 1969, because such other inventory is neither subject to the tax lien at the time of tax lien filing nor directly traceable to Z's disbursements.

Example (2). On June 1, 1971, K is awarded a contract to construct an office building. At the same time, S, a surety company, agrees in writing to insure the performance of the contract. The agreement provides that in the event S must complete the job as the result of a default by K, S will be entitled to the proceeds of the contract. In addition, the agreement provides that S is to have a security interest in all property belonging to K. On December 1, 1971, prior to the completion of the building, K defaults. On the same date, under §301.6323(f)-1, a notice of lien is filed with respect to K's delinquent tax liability. S completes the building on June 1, 1972. Under local law S's security interest in the proceeds of the contract and S's security interest in the property of K are entitled to priority over a judgment lien arising December 1, 1971 (the date of tax lien filing) out of an unsecured obligation. Because, for purposes of an obligatory disbursement agreement which is a surety agreement, the security interest may be in the proceeds of the insured contract, S's security interest in the proceeds of the contract has priority over the tax lien even though a notice of lien was filed before S's security interest arose. Furthermore, because the insured contract was a contract to construct real property, S's security interest in any of K's tangible personal property used in the performance of the contract also has priority over the tax lien.

Example (3). (i) On February 2, 1970, L enters into an agreement with M, a contractor, to construct an apartment building on land owned by L. Under a separate agreement, N bank agrees to furnish funds on a short-term basis to L for the payment of amounts due to M during the course of construction. Simultaneously, X, a financial institution, makes a binding commitment to N bank and L to provide long-term financing for the project after its completion. Under its commitment, X is obligated to pay off the balance of the construction loan held by N bank upon the execution by L of a new promissory note secured by a mortgage deed of trust upon the improved property. On September 4, 1970, in accordance with §301.6323(f)-1, notice of lien is properly filed with respect to L's delinquent tax liability. On September 8, 1970, X obtains actual notice of the tax lien filing. On September 14, 1970, the documents creating X's security interest are executed and recorded, N bank's lien for its construction loan is released, and X makes the required disbursements to N bank. Under local law, X's security interest is protected against a judgment lien arising on September 4, 1970 (the time of tax lien filing) out of an unsecured obligation.

(ii) Because X's security interest arose by reason of a disbursement made under a written agreement entered into before tax lien filing, which constitutes an agreement to make disbursements required to be made by reason of the intervention of the rights of N bank, a person other than the taxpayer, and because X's security interest is valid under local law against a judgment lien arising as of the time of the tax lien filing out of an unsecured obligation, the tax lien is not valid with respect to X's security interest to the extent of the disbursement to N bank. The obligatory disbursement is protected under section 6323(c)(4) even if X is not subrogated to N bank's rights or X's agreement is not itself a real property construction financing agreement. [Reg. §301.6323(c)-3.]

§ 301.6323(d)-145-day period for making disbursements

(a) In general. --Even though a notice of a lien imposed by section 6321 is filed in accordance with §301.6323(f)-1, the lien is not valid with respect to a security interest which comes into existence, after tax lien filing, by reason of disbursements made before the 46th day after the date of tax lien filing, or if earlier, before the person making the disbursements has actual notice or knowledge of the tax lien filing, but only if the security interest is --

(1) In property which is subject, at the time of tax lien filing, to the lien imposed by section 6321 and which is covered by the terms of a written agreement entered into before tax lien filing, and

(2) Protected under local law against a judgment lien arising, as of the time of tax lien filing, out of an unsecured obligation.

For purposes of subparagraph (1) of this paragraph, a contract right (as defined in paragraph (c)(2)(i) of §301.6323(c)-1) is subject, at the time of tax lien filing, to the lien imposed by section 6321 if the contract has been made by such time. An account receivable (as defined in paragraph (c)(2)(ii) of §301.6323(c)-1) is subject, at the time of tax lien filing, to the lien imposed by section 6321 if, and to the extent, a right to payment has been earned by performance at such time. For purposes of subparagraph (2) of this paragraph, a judgment lien is a lien held by a judgment lien creditor as defined in paragraph (g) of §301.6323(h)-1. For purposes of this section, it is immaterial that the written agreement provides that the disbursements are to be made at the option of the person making the disbursements. See paragraphs (a) and (e) of §301.6323(h)-1 for definitions of the terms "security interest" and "tax lien filing," respectively. See paragraph (a) of §301.6323(i)-1 for certain circumstances under which a person is deemed to have actual notice or knowledge of a fact.

(b) Examples. --The application of this section may be illustrated by the following examples:

Example (1). On December 1, 1967, an assessment is made against A with respect to his delinquent tax liability. On January 2, 1968, A enters into a written agreement with B whereby B agrees to lend A $10,000 in return for a security interest in certain property owned by A. On January 10, 1968, in accordance with §301.6323(f)-1 notice of the tax lien affecting the property is filed. On February 1, 1968, B, without actual notice or knowledge of the tax lien filing, disburses the loan to A. Under local law, the security interest arising by reason of the disbursement is entitled to priority over a judgment lien arising January 10, 1968 (the date of tax lien filing) out of an unsecured obligation. Because the disbursement was made before the 46th day after tax lien filing, because the disbursement was made pursuant to a written agreement entered into before tax lien filing, and because the resulting security interest is protected under local law against a judgment lien arising as of the date of tax lien filing out of an unsecured obligation, B's $10,000 security interest has priority over the tax lien.

Example (2). Assume the same facts as in example (1) except that when B disburses the $10,000 to A on February 10, 1968, B has actual knowledge of the tax lien filing. Because the disbursement was made with actual knowledge of tax lien filing, B's security interest does not have priority over the tax lien even though the disbursement was made before the 46th day after the tax lien filing. Furthermore, B is not protected under §301.6323(a)-1(a) as a holder of a security interest because he had not parted with money or money's worth prior to the time the notice of tax lien was filed (Jan. 10, 1968) even though he had made a firm commitment to A before that time. [Reg. §301.6323(d)-1.]

§ 301.6323(e)-1., Priority of interest and expenses

(a) In general. --If the lien imposed by section 6321 is not valid as against another lien or security interest, the priority of the other lien or security interest also extends to each of the following items to the extent that under local law the item has the same priority as the lien or security interest to which it relates:

(1) Any interest or carrying charges (including finance, service, and similar charges) upon the obligation secured,

(2) The reasonable charges and expenses of an indenture trustee (including, for example, the trustee under a deed of trust) or agent holding the security interest for the benefit of the holder of the security interest,

(3) The reasonable expenses, including reasonable compensation for attorneys, actually incurred in collecting or enforcing the obligation secured,

(4) The reasonable costs of insuring, preserving, or repairing the property to which the lien or security interest relates,

(5) The reasonable costs of insuring payment of the obligation secured (including amounts paid by the holder of the security interest for mortgage insurance, such as that issued by the Federal Housing Administration), and

(6) Amounts paid to satisfy any lien on the property to which the lien or security interest relates, but only if the lien so satisfied is entitled to priority over the lien imposed by section 6321.

(b) Collection expenses. --The reasonable expenses described in paragraph (a)(3) of this section include expenditures incurred by the protected holder of the lien or security interest to establish the priority of his interest or to collect, by foreclosure or otherwise, the amount due him from the property subject to his lien. Accordingly, the amount of the encumbrance which is protected is increased by the amounts so expended by the holder of the security interest.

(c) Costs of insuring, preserving, etc. --The reasonable costs of insuring, preserving, or repairing described in paragraph (a)(4) of this section include expenditures by the holder of a security interest for fire and casualty insurance on the property subject to the security interest and amounts paid by the holder of the lien or security interest to repair the property. Such reasonable costs also include the amounts paid by the holder of the lien or security interest in a leasehold to the lessor of the leasehold to preserve the leasehold subject to the lien or security interest. Accordingly, the amount of the lien or security interest which is protected is increased by the amounts so expended by the holder of the lien or security interest.

(d) Satisfaction of liens. --The amounts described in paragraph (a)(6) of this section include expenditures incurred by the protected holder of a lien or security interest to discharge a statutory lien for State sales taxes on the property subject to his lien or security interest if both his lien or security interest and the sales tax lien have priority over a Federal tax lien. Accordingly, the amount of the lien or security interest is increased by the amounts so expended by the holder of the lien or security interest even though under local law the holder of the lien or security interest is not subrogated to the rights of the holder of the State sales tax lien. However, if the holder of the lien or security interest is subrogated, within the meaning of paragraph (b) of §301.6323(i)-1, to the rights of the holder of the sales tax lien, he will also be entitled to any additional protection afforded by section 6323(i)(2). [Reg. §301.6323(e)-1.]

§ 301.6323(f)-1Place for filing notice; form

(a) Place for filing. --The notice of lien referred to in §301.6323(a)-1 shall be filed as follows:

(1) Under State laws

(i) Real property. --In the case of real property, notice shall be filed in one office within the State (or the county or other governmental subdivision), as designated by the laws of the State, in which the property subject to the lien is deemed situated under the provisions of paragraph (b)(1) of this section.

(ii) Personal property. --In the case of personal property, whether tangible or intangible, the notice shall be filed in one office within the State (or the county or other governmental subdivision), as designated by the laws of the State, in which the property subject to the lien is deemed situated under the provisions of paragraph (b)(2) of this section.

(2) With the clerk of the U.S. district court. --Whenever a State has not by law designated one office which meets the requirements of subparagraph (1)(i) or (1)(ii) of this paragraph, the notice shall be filed in the office of the clerk of the U.S. district court for the judicial district in which the property subject to the lien is deemed situated under the provisions of paragraph (b) of this section. For example, a State has not by law designated one office meeting the requirements of subparagraph (1)(i) of this paragraph if more than one office is designated within the State, county, or other governmental subdivision for filing notices with respect to all real property located in such State, county, or other governmental subdivision. A State has not by law designated one office meeting the requirements of subparagraph (1)(ii) of this paragraph if more than one office is designated in the State, county, or other governmental subdivision for filing notices with respect to all of the personal property of a particular taxpayer. A state law that conforms to or reenacts a federal law establishing a national filing system does not constitute a designation by state law of an office for filing liens against personal property. Thus, if state law provides that a notice of lien affecting personal property must be filed in the office of the county clerk for the county in which the taxpayer resides and also adopts a federal law that requires a notice of lien to be filed in another location in order to attach to a specific type of property, the state is considered to have designated only one office for the filing of the notice of lien, and to protect its lien the Internal Revenue Service need only file its notice in the office of the county clerk for the county in which the taxpayer resides.

(3) With the Recorder of Deeds of the District of Columbia. --If the property subject to the lien imposed by section 6321 is deemed situated, under the provisions of paragraph (b) of this section, in the District of Columbia, the notice shall be filed in the office of the Recorder of Deeds of the District of Columbia.

(b) Situs of property subject to lien. --For purposes of paragraph (a) of this section, property is deemed situated as follows:

(1) Real property. --Real property is deemed situated at its physical location.

(2) Personal property. --Personal property, whether tangible or intangible, is deemed situated at the residence of the taxpayer at the time the notice of lien is filed.

For purposes of subparagraph (2) of this paragraph the residence of a corporation or partnership is deemed to be the place at which the principal executive office of the business is located, and the residence of a taxpayer whose residence is not within the United States is deemed to be in the District of Columbia.

(c) National filing system. --The filing of federal tax liens is to be governed solely by the Internal Revenue Code and is not subject to any other federal law that may establish a national system for filing liens and encumbrances against a particular type of personal property. Thus, for example, the Service is not subject to the requirements established by the Federal Aviation Agency for filing liens against civil aircraft in Oklahoma City, Oklahoma.

(d) Form

(1) In general. --The notice referred to in §301.6323 (a)-1 shall be filed on Form 668, "Notice of Federal Tax Lien under Internal Revenue Laws". Such notice is valid notwithstanding any other provision of law regarding the form or content of a notice of lien. For example, omission from the notice of lien of a description of the property subject to the lien does not affect the validity thereof even though State law may require that the notice contain a description of the property subject to the lien.

(2) Form 668 defined. --The term "Form 668" generally means a paper form. However, if a state in which a notice referred to in §301.6323(a)-1 is filed permits a notice of Federal tax lien to be filed by the use of an electronic or magnetic medium, the term "Form 668" includes a Form 668 filed by the use of any electronic or magnetic medium permitted by that state. A Form 668 must identify the taxpayer, the tax liability giving the rise to the lien, and the date the assessment arose regardless of the method used to file the notice of Federal tax lien.

(e) Examples. --The provisions of this section may be illustrated by the following examples:

Example (1). The law of State X provides that notices of Federal tax lien affecting personal property are to be filed in the Office of the Recorder of Deeds of the county where the taxpayer resides. The laws of State X also provide that notices of lien affecting real property are to be filed with the recorder of deeds of the county where the real property is located. On June 1, 1970, in accordance with §301.6323(f)-1, a notice of lien is filed in county M with respect to the delinquent tax liability of A. At the time the notice is filed, A is a resident of county M and owns real property in that county. One year later A moves to county N and one year after that A moves to county O. Because the situs of personal property is deemed to be at the residence of the taxpayer at the time the notice of lien is filed, the notice continues to be effectively filed with respect to A's personal property even though A no longer resides in county M. Furthermore, because the situs of real property is deemed to be at its physical location, the notice of lien also continues to be effectively filed with respect to A's real property.

Example (2). B is a resident of Canada but owns personal property in the United States. On January 4, 1971, in accordance with §301.6323(f)-1, a notice of lien is filed with the Office of the Recorder of Deeds of the District of Columbia. On January 2, 1973, B changes his residence to State Y in the United States. Because the residence of a taxpayer who is not a resident of the United States is deemed to be in the District of Columbia and the situs of personal property is deemed to be at the residence of the taxpayer at the time of filing, the lien continues to be effectively filed with respect to the personal property of B located in the United States even though B has returned to the United States and taken up residence in State Y and even though B has at no time been in the District of Columbia.

Example (3). The law of State Z in effect before July 1, 1967, provides that notices of lien affecting real property are to be filed in the office of the recorder of deeds of the county in which the real property is located, but that if the real property is registered under the Torrens system of title registration the notice is to be filed with the registrar of titles rather than the recorder of deeds. The law of State Z in effect after June 30, 1967, provides that all notices of lien affecting real property are to be filed with the recorder of deeds of the county in which the real property is located. Accordingly, where the Torrens system is adopted by a county in State Z, there were before July 1, 1967, two offices designated for filing notices of Federal tax lien affecting real property in the county because one office was designated for Torrens real property and another office was designated for non-Torrens real property. Because State Z had not designated one office within the State, county, or other governmental subdivision for filing notices before July 1, 1967, with respect to all real property located in the State, county, or governmental subdivision, before July 1, 1967, the place for filing notices of lien under this section, affecting property located in counties adopting the Torrens system, was with the clerk of the U.S. district court for the judicial district in which the real property is located. However, after June 30, 1967, the place for filing notices of lien under this section, affecting both Torrens and non-Torrens real property in counties adopting the Torrens system is with the recorder of deeds for each such county. Notices of lien filed under this section with the clerk of the U.S. district court before July 1, 1967, remain validly filed whether or not refiled with the recorder of deeds after the change in State law or upon refiling during the required refiling period.

Example (4). The law of State W provides that notices of lien affecting personal property of corporations and partnerships are to be filed in the office of the Secretary of State. Notices of lien affecting personal property of any other person are to be filed in the office of the clerk of court for the county where the person resides. Because the State law designates only one filing office within State W with respect to personal property of any particular taxpayer, notices of lien filed under this section, affecting personal property, shall be filed in the office designated under State law.

Example 5. The law of State F provides that notices of lien affecting personal property are to be filed with the clerk of the circuit court in the county in which the personal property is located. State F has conformed state law to federal law to provide that all instruments affecting title to an interest in any civil aircraft of the United States must be recorded in the Office of the Federal Aviation Administrator (FAA) in Oklahoma City, Oklahoma. On July 1, 1990, a tax lien arises against ABC airline, which owns aircraft situated in State F. The Internal Revenue Service files a Notice of Federal Tax Lien with the clerk of the circuit court in the county in which the aircraft is located but does not file the notice with the FAA in Oklahoma City, Oklahoma. Because the FAA system adopted by State F does not constitute a second place of filing pursuant to section 6323(f), the federal tax lien is validly filed.

Example 6. Assume the same facts as Example 5 except that State F did not reenact or conform state law to the FAA requirements. The result is the same because the filing of federal tax liens is governed solely by the Internal Revenue Code, and is not subject to any other national filing system.

§ 301.6323(g)-1 Refiling of notice of tax lien

(a) In general

(1) Requirement to refile. --In order to continue the effect of a notice of lien, the notice must be refiled in the place described in paragraph (b) of this section during the required refiling period (described in paragraph (c) of this section). In the event that two or more notices of lien are filed with respect to a particular tax assessment, the failure to comply with the provisions of paragraphs (b)(1)(i) and (c) of this section in respect of one of the notices of lien does not affect the effectiveness of the refiling of any other notice of lien. Except for the filing of a notice of lien required by paragraph (b)(1)(ii) of this section (relating to a change of residence) the validity of any refiling of a notice of lien is not affected by the refiling or nonrefiling of any other notice of lien.

(2) Effect of refiling. --A timely refiled notice of lien is effective as of the date on which the notice of lien to which it relates was effective.

(3) Effect of failure to refile. --If the district director fails to refile a notice of lien in the manner described in paragraphs (b) and (c) of this section, the notice of lien is not effective, after the expiration of the required refiling period, as against any person without regard to when the interest of the person in the property subject to the lien was acquired. However, the failure of the district director to refile a notice of lien during the required refiling period will not, following the expiration of the refiling period, affect the effectiveness of the notice with respect to:

(i) Property which is the subject matter of a suit, to which the United States is a party, commenced prior to the expiration of the required refiling period, or

(ii) Property which has been levied upon by the United States prior to the expiration of the refiling period.

However, if a suit or levy referred to in the preceding sentence is dismissed or released and the property is subject to the lien at such time, a notice of lien with respect to the property is not effective after the suit or levy is dismissed or released unless refiled during the required refiling period. Failure to refile a notice of lien does not affect the existence of the lien.

(4) Filing of new notice. --If a notice of lien is not refiled, and if the lien remains in existence, the Internal Revenue Service may nevertheless file a new notice of lien either on the form prescribed for the filing of a notice of lien or on the form prescribed for refiling a notice of lien. This new filing must meet the requirements of section 6323(f) and §301.6323(f)-1 and is effective from the date on which such filing is made.

(b) Place for refiling notice of lien

(1) In general. --A notice of lien refiled during the required refiling period (described in paragraph (c) of this section) shall be effective only --

(i) If the notice of lien is refiled in the office in which the prior notice of lien (including a refiled notice) was filed under the provisions of section 6323; and

(ii) In any case in which 90 days or more prior to the date the refiling of the notice of lien under subdivision (i) is completed, the Internal Revenue Service receives written information (in the manner described in subparagraph (2) of this paragraph) concerning a change in the taxpayer's residence, if a notice of such lien is also filed in accordance with section 6323(f)(1)(A)(ii) in the State in which such new residence is located (or, if such new residence is located without the United States, in the District of Columbia).

A notice of lien is considered as refiled in the office in which the prior notice or refiled notice was filed under the provisions of section 6323 if it is refiled in the office which, pursuant to a change in the applicable local law, assumed the functions of the office in which the prior notice or refiled notice was filed. If on or before the 90th day referred to in subdivision (ii) more than one written notice is received concerning a change in the taxpayer's residence, a notice of lien is required by this subdivision to be filed only with respect to the residence shown on the written notice received on the most recent date. Subdivision (ii) is applicable regardless of whether the taxpayer resides at the new residence on the date the refiling of notice of lien under subdivision (i) of this subparagraph is completed.

(2) Notice of change of taxpayer's residence

(i) In general. --Except as provided in subdivision (ii) or (iii) of this subparagraph, for purposes of this section, a notice of change of a taxpayer's residence will be effective only if it (A) is received, in writing, from the taxpayer or his representative by the district director or the service center director having jurisdiction where the original notice of lien was filed, (B) relates to an unpaid tax liability of the taxpayer, and (C) states the taxpayer's name and the address of his new residence. Although it is not necessary that a written notice contain the taxpayer's identifying number authorized by section 6109, it is preferable that it include such number. For purposes of this subdivision, a notice of change of a taxpayer's residence shown on a return or an amended return (including a return of the same tax) will not be effective to notify the Internal Revenue Service.

(ii) Notice received before August 23, 1976. --For purposes of this section, a notice of a change of a taxpayer's residence will also be effective if it (A) is received, in writing, by any office of the Internal Revenue Service before August 23, 1976, from the taxpayer or his representative, (B) relates to an unpaid tax liability of the taxpayer, and (C) states the taxpayer's name and the address of his new residence.

(iii) By return or amended return. --For purposes of this section, in the case of a notice of lien which relates to an assessment of tax made after December 31, 1966, a notice of change of a taxpayer's residence will also be effective if it is contained in a return or amended return of the same type of tax filed with the Internal Revenue Service by the taxpayer or his representative which on its face indicates that there is a change in the taxpayer's address and correctly states the taxpayer's name, the address of his new residence, and his identifying number required by section 6109.

(iv) Other rules applicable. --Except as provided in subdivisions (i), (ii), and (iii) of this subparagraph, no communication (either written or oral) to the Internal Revenue Service will be considered effective as notice of a change of a taxpayer's residence under this section, whether or not the Service has actual notice or knowledge of the taxpayer's new residence. For the purpose of determining the date on which a notice of change of a taxpayer's residence is received under this section, the notice shall be treated as received on the date it is actually received by the Internal Revenue Service without reference to the provisions of section 7502.

(3) Examples. --The provisions of this section may be illustrated by the following examples:

Example (1). A, a delinquent taxpayer, is a resident of State M and owns real property in State N. In accordance with §301.6323(f)-1, notices of lien are filed in States M and N. In order to continue the effect of the notice of lien filed in M, the Internal Revenue Service must refile, during the required refiling period, the notice of lien with the appropriate office in M but is not required to refile the notice of lien with the appropriate office in N. Similarly, in order to continue the effect of the notice of lien filed in State N, the Internal Revenue Service must refile, during the required refiling period, the notice of lien with the appropriate office in N but is not required to refile the notice of lien with the appropriate office in M.

Example (2). B, a delinquent taxpayer, is a resident of State M. In accordance with §301.6323(f)-1, notice of lien is properly filed in that State. One year before the beginning of the required refiling period, B establishes his residence in State N, and B immediately notifies the Internal Revenue Service of his change in residence in accordance with the provisions of paragraph (b)(2) of this section. In order to continue the effect of the notice of lien filed in M, the Internal Revenue Service must refile, during the required refiling period, notices of lien with (i) the appropriate office in M, and (ii) the appropriate office in N, because B properly notified the Internal Revenue Service of his change in residence to N more than 89 days prior to the date refiling of the notice of lien in M is completed. Even if the Internal Revenue Service had acquired actual notice or knowledge of B's change in residence by other means, if B had not properly notified the Internal Revenue Service of his change in residence, the effect of the notice of lien in State M could have been continued without any refiling in State N.

Example (3). C, a delinquent taxpayer, is a resident of State O. In accordance with §301.6323(f)-1, notice of lien is properly filed in that State. Four years before the required refiling period, C establishes his residence in State P, and C immediately notifies the Internal Revenue Service of his change in residence in accordance with the provisions of paragraph (b)(2) of this section. Three years before the required refiling period, C establishes his residence in State R, and again C immediately notifies the Internal Revenue Service of his change in residence in accordance with the provisions of paragraph (2) of this section. In order to continue the effect of the notice of lien filed in O, the Internal Revenue Service must refile, during the required refiling period, notices of lien with (i) the appropriate office in O, and (ii) the appropriate office in R. Refiling in R is required because the notice received by the Service of C's change in residence to R was the most recent notice received more than 89 days prior to the date refiling in O is completed. The notice of lien is not required to be filed in P, even though C properly notified the Internal Revenue Service of his change in residence to P, because such notice is not the most recent one received.

Example (4). Assume the same facts as in example (3), except that C does not notify the Internal Revenue Service of his change in residence to R in accordance with the provisions of paragraph (b)(2) of this section. In order to continue the effect of the notice of lien filed in O, the Internal Revenue Service must refile, during the required refiling period, the notice of lien with (i) the appropriate office in O, and (ii) the appropriate office in P. Refiling in P is required because C properly notified the Internal Revenue Service of his change in residence to P, even though C is not a resident of P on the date refiling of the notice of lien in O is completed. The Internal Revenue Service is not required to file a notice of lien in R because C did not properly notify the Service of his change in residence to R.

Example (5). D, a delinquent taxpayer, is a resident of State M and owns real property in States N and O. In accordance with §301.6323(f)-1, the Internal Revenue Service files notices of lien in M, N, and O States. Five years and 6 months after the date of the assessment shown on the notice of lien, D establishes his residence in P, and at that time the Internal Revenue Service received from D a notification of his change in residence in accordance with the provisions of paragraph (b)(2) of this section. On a date which is 5 years and 7 months after the date of the assessment shown on the notice of lien, the Internal Revenue Service properly refiles notices of lien in M, N, and O which refilings are sufficient to continue the effect of each of the notices of lien. The Internal Revenue Service is not required to file a notice of lien in P because D did not notify the Internal Revenue Service of his change of residence to P more than 89 days prior to the date each of the refilings in M, N, and O was completed.

Example (6). Assume the same facts as in example (5) except that the refiling of the notice of lien in O occurs 100 days after D notifies the Internal Revenue Service of his change in residence to P in accordance with the provisions of paragraph (b)(2) of this section. In order to continue the effect of the notice of lien filed in O, in addition to refiling the notice of lien in O, the Internal Revenue Service must also refile, during the required refiling period, a notice of lien in P because D properly notified the Internal Revenue Service of his change of residence to P more than 89 days prior to the date the refiling in O was completed. However, the Internal Revenue Service is not required to refile the notice of lien in P to maintain the effect of the notices of lien in M and N because D did not notify the Internal Revenue Service of his change in residence to P more than 89 days prior to the date the refilings in M and N were completed.

Example (7). E, a delinquent taxpayer, is a resident of State T. Because T has not designated one office in the case of personal property for filing notices of lien in accordance with the provisions of section 6323(f)(1)(A)(ii), the Internal Revenue Service properly files a notice of lien with the clerk of the appropriate United States district court. However, solely as a matter of convenience for those who may have occasion to search for notices of lien, and not as a matter of legal effectiveness, the Internal Revenue Service also files notice of lien with the recorder of deeds of the county in T where E resides. In addition, the Internal Revenue Service sends a copy of the notice of lien to the X life insurance company to give the company actual notice of the notice of lien. In order to continue the effect of the notice of lien, the Internal Revenue Service must refile the notice of lien with the clerk of the appropriate United States district court during the required refiling period. In order to continue the effect of the notice of the lien, it is not necessary to refile the notice of lien with the recorder of deeds of the county where E resides, because the refiling of the notice of lien with the recorder of deeds does not constitute a proper filing for the purposes of section 6323(f). In addition, to continue the effect of the notice of lien under this section it is not necessary to send a copy of the notice of lien to the X life insurance company, because the sending of a notice of lien to an insurance company does not constitute a proper filing for the purposes of section 6323(f).

(1) In general. --For the purpose of this section, except as provided in subparagraph (2) of this paragraph, the term "required refiling period" means --

(i) The 1-year period ending 30 days after the expiration of 6 years after the date of the assessment of the tax, and

(ii) The 1-year period ending with the expiration of 6 years after the close of the preceding required refiling period for such notice of lien.

(2) Tax assessments made before January 1, 1962. --If the assessment of the tax is made before January 1, 1962, the first required refiling period shall be the calendar year 1967. Thus, to maintain the effectiveness of any notice of lien on file which relates to a lien which arose before January 1, 1962, the Internal Revenue Service will refile the notice of lien during the calendar year 1967.

(3) Examples. --The provisions of this paragraph may be illustrated by the following examples:

Example (1). On March 1, 1963, an assessment of tax is made against B, a delinquent taxpayer, and a lien for the amount of the assessment arises on that date. On July 1, 1963, in accordance with §301.6323(f)-1, a notice of lien is filed. The notice of lien filed on July 1, 1963, is effective through March 31, 1969. The first required refiling period for the notice of lien begins on April 1, 1968, and ends on March 31, 1969. A refiling of the notice of lien during that period will extend the effectiveness of the notice of lien filed on July 1, 1963, through March 31, 1975. The second required refiling period for the notice of lien begins on April 1, 1974, and ends on March 31, 1975.

Example (2). Assume the same facts as in example (1), except that although the Internal Revenue Service fails to refile a notice of lien during the first required refiling period (April 1, 1968, through March 31, 1969), a notice of lien is filed on June 2, 1971, in accordance with §301.6323(f)-1. Because of this filing, the notice of lien filed on June 2, 1971, is effective as of June 2, 1971. That notice must be refiled during the 1-year period ending on March 31, 1975, if it is to continue in effect after March 31, 1975.

Example (3). On April 1, 1960, an assessment of tax is made against B, a delinquent taxpayer, and a tax lien for the amount of the assessment arises on that date. On June 1, 1962, in accordance with §301.6323(f)-1, a notice of lien is filed. Because the assessment of tax was made before January 1, 1962, the notice of lien filed on June 1, 1962, is effective through December 31, 1967. The first required refiling period for the notice of lien is the calendar year 1967. A refiling of the notice of lien during 1967 will extend the effectiveness of the notice of lien filed on June 1, 1962, through December 31, 1973. [Reg. §301.6323(g)-1.]

.

§ 301.6323(h)-1., Definitions

(a) Security interest

(1) In general. --The term "security interest" means any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time --

(i) If, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien (as provided in subparagraph (2) of this paragraph) arising out of an unsecured obligation; and

(ii) To the extent that, at such time, the holder has parted with money or money's worth (as defined in subparagraph (3) of this paragraph).

For purposes of this subparagraph, a contract right (as defined in paragraph (c)(2)(i) of §301.6323(c)-1) is in existence when the contract is made. An account receivable (as defined in paragraph (c)(2)(ii) of §301.6323(c)-1) is in existence when, and to the extent, a right to payment is earned by performance.

A security interest must be in existence, within the meaning of this paragraph, at the time as of which its priority against a tax lien is determined. For example, to be afforded priority under the provisions of paragraph (a) of §301.6323(a)-1 a security interest must be in existence within the meaning of this paragraph before a notice of lien is filed.

(2) Protection against a subsequent judgment lien

(i) For purposes of this paragraph, a security interest is deemed to be protected against a subsequent judgment lien on --

(A) The date on which all actions required under local law to establish the priority of a security interest against a judgment lien have been taken, or

(B) If later, the date on which all required actions are deemed effective under local law, to establish the priority of the security interest against a judgment lien.

For purposes of this subdivision, the dates described in (A) and (B) of this subdivision (i) shall be determined without regard to any rule or principle of local law which permits the relation back of any requisite action to a date earlier than the date on which the action is actually performed. For purposes of this paragraph, a judgment lien is a lien held by a judgment lien creditor as defined in paragraph (g) of this section.

(ii) The application of this subparagraph may be illustrated by the following example:

Example. (i) Under the law of State X, a security interest in negotiable instruments, stocks, bonds, or other securities may be perfected, and hence protected against a judgment lien, only by the secured party taking possession of the instruments or securities. However, a security interest in such intangible personal property is considered to be temporarily perfected for a period of 21 days from the time the security interest attaches, to the extent consideration other than past consideration is given under a written security agreement. Under the law of X, a security interest attaches to such collateral when there is an agreement between the creditor and debtor that the interest attaches, the debtor has rights in the property, and consideration is given by the creditor. Under the law of X, in the case of temporary perfection, the security interest in such property is protected during the 21-day period against a judgment lien arising, after the security interest attaches, out of an unsecured obligation. Upon expiration of the 21-day period, the holder of the security interest must take possession of the collateral to continue perfection.

(ii) Because the security interest is protected during the 21-day period against a subsequent judgment lien arising out of an unsecured obligation, and because the taking of possession before the conclusion of the period of temporary perfection is not considered, for purposes of subdivision (i) of this subparagraph, to be a requisite action which relates back to the beginning of such period, the requirements of this paragraph are satisfied. However, because taking possession is a condition precedent to continued perfection, possession of the collateral is a requisite action to establish such priority after expiration of the period of temporary perfection. If there is a lapse of perfection for failure to take possession, the determination of when the security interest exists (for purposes of protection against the tax lien) is made without regard to the period of temporary perfection.

(3) Money or money's worth. --For purposes of this paragraph, the term "money or money's worth" includes money, a security (as defined in paragraph (d) of this section), tangible or intangible property, services, and other consideration reducible to a money value. Money or money's worth also includes any consideration which otherwise would constitute money or money's worth under the preceding sentence which was parted with before the security interest would otherwise exist if, under local law, past consideration is sufficient to support an agreement giving rise to a security interest. A relinquishing or promised relinquishment of dower, curtesy, or of a statutory estate created in lieu of dower or curtesy, or of other marital rights is not a consideration in money or money's worth. Nor is love and affection, promise of marriage, or any other consideration not reducible to a money value a consideration in money or money's worth.

(4) Holder of a security interest. --For purposes of this paragraph, the holder of a security interest is the person in whose favor there is a security interest. For provisions relating to the treatment of a purchaser of commercial financing security as a holder of a security interest, see §301.6323(c)-1(e).

(b) Mechanic's lienor

(1) In general. --The term "mechanic's lienor" means any person who under local law has a lien on real property (or on the proceeds of a contract relating to real property) for services, labor, or materials furnished in connection with the construction or improvement (including demolition) of the property. A mechanic's lienor is treated as having a lien on the later of --

(i) The date on which the mechanic's lien first becomes valid under local law against subsequent purchasers of the real property without actual notice, or

(ii) The date on which the mechanic's lienor begins to furnish the services, labor, or materials.

(2) Examples. --The provisions of this paragraph may be illustrated by the following example:

Example (1). On February 1, 1968, A lets a contract for the construction of an office building on property owned by him. On March 1, 1968, in accordance with §301.6323(f)-1, a notice of lien for delinquent Federal taxes owed by A is filed. On April 1, 1968, B, a lumber dealer, delivers lumber to A's property. On May 1, 1968, B records a mechanic's lien against the property to secure payment of the price of the lumber. Under local law, B's mechanic's lien is valid against subsequent purchasers of real property without notice from February 1, 1968, which is the date the construction contract was entered into. Because the date on which B's mechanic's lien is valid under local law against subsequent purchasers is February 1, and the date on which B begins to furnish the materials is April 1, the date on which B becomes a mechanic's lienor within the meaning of this paragraph is April 1, the later of these two dates. Under paragraph (a) of §301.6323(a)-1, B's mechanic's lien will not have priority over the Federal tax lien, even though under local law the mechanic's lien relates back to the date of the contract.

(1) The term "motor vehicle" means a self-propelled vehicle which is registered for highway use under the laws of any State, the District of Columbia, or a foreign country.

(2) A motor vehicle is "registered for highway use" at the time of a sale if immediately prior to the sale it is so registered under the laws of any State, the District of Columbia, or a foreign country. Where immediately prior to the sale of a motor vehicle by a dealer, the dealer is permitted under local law to operate it under a dealer's tag, license, or permit issued to him, the motor vehicle is considered to be registered for highway use in the name of the dealer at the time of the sale.

(d) Security. --The term "security" means any bond, debenture, note, or certificate or other evidence of indebtedness, issued by a corporation or a government or political subdivision thereof, with interest coupons or in registered form, share of stock, voting trust certificate, or any certificate of interest or participation in, certificate of deposit or receipt for, temporary or interim certificate for, or warrant or right to subscribe to or purchase, any of the foregoing; negotiable instrument; or money.

(e) Tax lien filing. --The term "tax lien filing" means the filing of notice of the lien imposed by section 6321 in accordance with §301.6323(f)-1.

(f) Purchaser

(1) In general. --The term "purchaser" means a person who, for adequate and full consideration in money or money's worth (as defined in subparagraph (3) of this paragraph), acquires an interest (other than a lien or security interest) in property which is valid under local law against subsequent purchasers without actual notice.

(2) Interest in property. --For purposes of this paragraph, each of the following interests is treated as an interest in property, if it is not a lien or security interest:

(i) A lease of property,

(ii) A written executory contract to purchase or lease property,

(iii) An option to purchase or lease property and any interest therein, or

(iv) An option to renew or extend a lease of property.

(3) Adequate and full consideration in money or money's worth. --For purposes of this paragraph, the term "adequate and full consideration in money or money's worth" means a consideration in money or money's worth having a reasonable relationship to the true value of the interest in property acquired. See paragraph (a)(3) of this section for definition of the term "money or money's worth." Adequate and full consideration in money or money's worth may include the consideration in a bona fide bargain purchase. The term also includes the consideration in a transaction in which the purchaser has not completed performance of his obligation, such as the consideration in an installment purchase contract, even though the purchaser has not completed the installment payments.

(4) Examples. --The provisions of this paragraph may be illustrated by the following examples:

Example (1). A enters into a contract for the purchase of a house and lot from B. Under the terms of the contract A makes a down payment and is to pay the balance of the purchase price in 120 monthly installments. After payment of the last installment, A is to receive a deed to the property. A enters into possession, which under local law protects his interest in the property against subsequent purchasers without actual notice. After A has paid five monthly installments, a notice of lien for Federal taxes is filed against B in accordance with §301.6323(f)-1. Because the contract is an executory contract to purchase property and is valid under local law against subsequent purchasers without actual notice, A qualifies as a purchaser under this paragraph.

Example (2). C owns a residence which he leases to his son-in-law, D, for a period of 5 years commencing January 1, 1968. The lease provides for payment of $100 a year, although the fair rental value of the residence is $2,500 a year. The lease is recorded on December 31, 1967. On March 1, 1968, a notice of tax lien for unpaid Federal taxes of C is filed in accordance with §301.6323(f)-1. Under local law, D's interest is protected against subsequent purchasers without actual notice. However, because the rental paid by D has no reasonable relationship to the value of the interest in property acquired, D does not qualify as a purchaser under this paragraph.

(g) Judgment lien creditor. --The term "judgment lien creditor" means a person who has obtained a valid judgment, in a court of record and of competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money. In the case of a judgment for the recovery of a certain sum of money, a judgment lien creditor is a person who has perfected a lien under the judgment on the property involved. A judgment lien is not perfected until the identity of the lienor, the property subject to the lien, and the amount of the lien are established. Accordingly, a judgment lien does not include an attachment or garnishment lien until the lien has ripened into judgment, even though under local law the lien of the judgment relates back to an earlier date. If recording or docketing is necessary under local law before a judgment becomes effective against third parties acquiring liens on real property, a judgment lien under such local law is not perfected with respect to real property until the time of such recordation or docketing. If under local law levy or seizure is necessary before a judgment lien becomes effective against third parties acquiring liens on personal property, then a judgment lien under such local law is not perfected until levy or seizure of the personal property involved. The term "judgment" does not include the determination of a quasi-judicial body or of an individual acting in a quasi-judicial capacity such as the action of State taxing authorities. [Reg. §301.6323(h)-1.]

§ 301.6323(i)-1 Special rules

(a) Actual notice or knowledge. --For purposes of subchapter C (section 6321 and following), chapter 64 of the Code, an organization is deemed, in any transaction, to have actual notice or knowledge of any fact from the time the fact is brought to the attention of the individual conducting the transaction, and in any event from the time the fact would have been brought to the individual's attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routines. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his regular duties or unless he has reason to know of the transaction and that the transaction would be materially affected by the information.

(b) Subrogation

(1) In general. --Where, under local law, one person is subrogated to the rights of another with respect to a lien or interest, such person shall be subrogated to such rights for purposes of any lien imposed by section 6321 or 6324. Thus, if a tax lien imposed by section 6321 or 6324 is not valid with respect to a particular interest as against the holder of that interest, then the tax lien also is not valid with respect to that interest as against any person who, under local law, is a successor in interest to the holder of that interest.

(2) Example. --The application of this paragraph may be illustrated by the following example:

Example. On February 1, 1968, an assessment is made and a tax lien arises with respect to A's delinquent tax liability. On February 25, 1968, in accordance with §301.6323(f)-1, a notice of lien is properly filed. On March 1, 1968, A negotiates a loan from B, the security for which is a second mortgage on property owned by A. The first mortgage on the property is held by C and has priority over the tax lien. Upon default by A, C begins proceedings to foreclose upon the first mortgage. On September 1, 1968, B pays the amount of principal and interest in default to C in order to protect the second mortgage against the pending foreclosure of C's senior mortgage. Under local law, B is subrogated to C's rights to the extent of the payment to C. Therefore, the tax lien is invalid against B to the extent he became subrogated to C's rights even though the tax lien is valid against B's second mortgage on the property.

(c) Disclosure of amount of outstanding lien. --If a notice of lien has been filed (see §301.6323(f)-1), the amount of the outstanding obligation secured by the lien is authorized to be disclosed as a matter of public record on Form 668 "Notice of Federal Tax Lien Under Internal Revenue Laws." The amount of the outstanding obligation secured by the lien remaining unpaid at the time of an inquiry is authorized to be disclosed to any person who has a proper interest in determining this amount. Any person who has a right in the property or intends to obtain a right in the property by purchase or otherwise will, upon presentation by him of satisfactory evidence, be considered to have a proper interest. Any person desiring this information may make his request to the office of the Internal Revenue Service named on the notice of lien with respect to which the request is made. The request should clearly describe the property subject to the lien, identify the applicable lien, and give the reasons for requesting the information. [Reg. §301.6323(i)-1.]

§ 301.6323(j)-1., Withdrawal of notice of federal tax lien in certain circumstances

(a) In general. --The Commissioner or his delegate (Commissioner) may withdraw a notice of federal tax lien filed under this section, if the Commissioner determines that any of the conditions in paragraph (b) of this section exist. A notice of federal tax lien is withdrawn by the filing by the Commissioner of a notice of withdrawal in the office in which the notice of federal tax lien is filed. If a notice of withdrawal is filed, chapter 64 of subtitle F, relating to collection, will be applied as if the withdrawn notice had never been filed. A copy of the notice of withdrawal will be provided to the taxpayer. Upon written request by a taxpayer with respect to whom a notice of federal tax lien has been or will be withdrawn, the Commissioner will promptly make reasonable efforts to notify any credit reporting agency and any financial institution or creditor identified by the taxpayer of the withdrawal of such notice. The withdrawal of a notice of federal tax lien will not affect the underlying federal tax lien.

(b) Conditions authorizing withdrawal. --The Commissioner may authorize the withdrawal of a notice of federal tax lien upon determining that one of the following conditions exists:

(1) Premature or not in accordance with administrative procedures. --The filing of the notice of federal tax lien was premature or otherwise not in accordance with the administrative procedures of the Secretary.

(2) Installment agreement. --The taxpayer has entered into an agreement under section 6159 to satisfy the liability for which the lien was imposed by means of installment payments. Entry into an installment agreement may not, however, be the basis for withdrawal of a notice of lien if the installment agreement specifically provides that a notice of federal tax lien will not be withdrawn.

(3) Facilitate collection. --The withdrawal of the notice of federal tax lien will facilitate the collection of the tax liability for which the lien was imposed.

(4) Best interests of the United States and the taxpayer

(i) In general. --The taxpayer or the National Taxpayer Advocate (or his delegate) has consented to the withdrawal of the notice of federal tax lien, and withdrawal of the notice would be in the best interest of the taxpayer, as determined by the taxpayer or the National Taxpayer Advocate (or his delegate), and in the best interest of the United States, as determined by the Commissioner.

(ii) Best interest of the taxpayer. --When a taxpayer requests the withdrawal of notice of federal tax lien based on the best interests of the United States and the taxpayer, the National Taxpayer Advocate (or his delegate) generally will determine whether the withdrawal of the notice of federal tax lien is in the best interest of the taxpayer. If, however, a taxpayer requests the Commissioner to withdraw a notice and has not specifically requested the National Taxpayer Advocate (or his delegate) to determine the taxpayer's best interest, a finding by the Commissioner that the withdrawal of notice is in the best interest of the taxpayer will be sufficient to support withdrawal. If the Commissioner decides independently of a request by the taxpayer to withdraw a notice of federal tax lien, the taxpayer or the National Taxpayer Advocate (or his delegate) must consent to the withdrawal.

(5) Examples. --The following examples illustrate the provisions of this paragraph (b):

Example 1. A owes $1,000 in Federal income taxes. The IRS files a notice of federal tax lien to secure A's tax liability. However, the IRS failed to follow procedure provided by the Internal Revenue Manual (but not required by statute) with regard to managerial approval prior to the filing of a notice of federal tax lien. The Commissioner may withdraw the notice of federal tax lien because the filing of the notice was not in accordance with the Secretary's administrative procedures.

Example 2. A owes $1,000 in federal income taxes. A enters into an agreement to pay the outstanding federal income tax liability in installments. The agreement provides that a notice of federal tax lien may be filed if the taxpayer defaults. A timely pays the installments each month and has not defaulted in any way. Eleven months after entering into the installment agreement, the Internal Revenue Service files a notice of federal tax lien. Noting that there has been no default, the taxpayer asks the Internal Revenue Service to withdraw the notice of federal tax lien. In this situation, the Commissioner may withdraw the notice of federal tax lien because the taxpayer has entered into an installment agreement.

Example 3. A is an employee of X Corporation. A notice of federal tax lien has been filed to secure an outstanding tax liability against A. A, who has no assets and no other secured creditors, has agreed to pay the balance of tax due through payroll deductions at a rate higher than the Internal Revenue Service could obtain through a wage levy in order to get the notice of federal tax lien withdrawn. X Corporation has agreed to allow A to enter into a payroll deduction agreement. In this situation, the Commissioner may withdraw the notice of federal tax lien to facilitate collection.

Example 4. A is owner of a farm machinery dealership against whom a notice of federal tax lien has been filed to secure an outstanding tax liability. A currently is paying the tax liability by an installment agreement. X Corporation has agreed to provide A with 100 tractors to increase A's inventory if the notice of federal tax lien is withdrawn. A asks the Internal Revenue Service to withdraw the notice of federal tax lien. The Commissioner determines that the larger inventory would enable A to generate additional tractor sales. Increased sales would enable A to increase the amount of installment payments and, consequently, reduce the amount of time needed to satisfy the liability. A, who has no other assets or secured creditors, has agreed to modify the installment agreement. The Commissioner may withdraw the notice of federal tax lien because the withdrawal is in the best interest of the taxpayer and the United States.

(c) Determinations by the Commissioner. --The Commissioner must determine whether any of the conditions authorizing the withdrawal of a notice of federal tax lien exist if a taxpayer submits a request for withdrawal in accordance with paragraph (d) of this section. The Commissioner may also make this determination independent of a request from the taxpayer based on information received from a source other than the taxpayer. If the Commissioner determines that conditions authorizing the withdrawal are not present, the Commissioner may not authorize the withdrawal. If the Commissioner determines conditions for withdrawal are present, the Commissioner may (but is not required to) authorize the withdrawal.

(d) Procedures for request for withdrawal

(1) Manner. --A request for the withdrawal of a notice of federal tax lien must be made in writing in accordance with procedures prescribed by the Commissioner.

(2) Form. --The written request will include the following information and documents --

(i) Name, current address, and taxpayer identification number of the person requesting the withdrawal of notice of federal tax lien;

(ii) A copy of the notice of federal tax lien affecting the taxpayer's property, if available;

(iii) The grounds upon which the withdrawal of notice of federal tax lien is being requested;

(iv) A list of the names and addresses of any credit reporting agency and any financial institution or creditor that the taxpayer wishes the Commissioner to notify of the withdrawal of notice of federal tax lien; and

(v) A request to disclose the withdrawal of notice of federal tax lien to the persons listed in paragraph (d)(2)(iv) of this section.

(e) Supplemental list of credit agencies, financial institutions, and creditors

(1) In general. --If the Commissioner grants a withdrawal of notice of federal tax lien, the taxpayer may supplement the list in paragraph (d)(2)(iv) of this section. If no list was provided in the request to withdraw the notice of federal tax lien, the list in paragraph (d)(2)(iv) of this section and the request for notification in paragraph (d)(2)(v) of this section may be submitted after the notice is withdrawn.

(2) Manner. --A request to supplement the list of any credit agencies and any financial institutions or creditors that the taxpayer wishes the Commissioner to notify of the withdrawal of notice of federal tax lien must be made in writing in accordance with procedures prescribed by the Commissioner.

(3) Form. --The request must include the following information and documents --

(i) Name, current address, and taxpayer identification number of the taxpayer requesting the notification of any credit agency or any financial institution or creditor of the withdrawal of notice of federal tax lien;

(ii) A copy of the notice of withdrawal, if available;

(iii) A supplemental list, identified as such, of the names and addresses of any credit reporting agency and any financial institution or creditor that the taxpayer wishes the Commissioner to notify of the withdrawal of notice of federal tax lien; and

(iv) A request to disclose the withdrawal of notice of federal tax lien to the persons listed in paragraph (e)(3)(iii) of this section.

(f) Effective date. --This section applies on or after June 22, 2001, with respect to a withdrawal of any notice of federal tax lien. [Reg. §301.6323(j)-1.]

.01 Historical Comment: Proposed 6/30/99. Adopted 6/21/2001 by T.D. 8951.

Discharge of Property from Lien: Synopsis - release of liens

A certificate for the release of a tax lien can be obtained from the District Director on Form 669-A when the tax liability is sufficiently secured by other property, on Form 669-B when the lien is satisfied, or Form 669-C when the lien becomes unenforceable because of a lapse of time.

Discharge of Property from Lien: Time limit for release of lien

A lien must be released no later than 30 days after the day on which the lien has been fully satisfied or has become legally unenforceable, or upon the acceptance of a bond that is conditioned upon the payment of the amount assessed plus interest. In addition, taxpayers are given the right to request the IRS to issue a certificate of release on the grounds that a lien was satisfied or legally unenforceable. As to proof of full payment, see Temporary Reg. §401.6325-1.

To trigger the 30-day release requirement, the request must be submitted to the Chief of Special Procedures in the IRS district where the notice of lien was filed. It must (1) be in writing, (2) provide the taxpayer's name and current address, (3) include a copy of the notice of lien as filed, (4) state the ground on which the request is made (that is, satisfaction or unenforceability), and (5) if satisfaction is claimed, be accompanied by a copy of the canceled check or other evidence of payment. Incorrect or incomplete requests will not trigger the 30-day period.

When the ground for release is satisfaction of liability and payment is by personal check of more than $1,000, the 30-day relese period will begin after seven working days (IRS Internal Revenue Manual IRM 5.12.2.2.1, 2-2-99, CCH INTERNAL REVENUE MANUAL --ADMINISTRATION). This waiting period does not apply to payments by cash, money order, or certified or cashier's check.

Regarding release of a lien by furnishing a bond, the bond must be executed by a surety company holding a certificate of authority from the Secretary of the Treasury as an acceptable surety on Treasury bonds or, in the discretion of the District Director, collateral may be accepted.

A lien may also be released where the IRS accepts an offer in compromise. The regulations state that the lien will be released provided that (a) it is a cash offer or all installments have been paid, (b) any assets required to be assigned or turned over to the government have been so assigned or turned over and (c) all other terms and conditions of the offer have been met.

Discharge of Property from Lien: Discharge of property

Property subject to a tax lien may be discharged if the value of property remaining subject to the lien is at least twice the amount of the tax lien or any prior liens (Code Sec. 6325(b)(1)). In addition, property subject to a tax lien may be discharged where the IRS is paid the value of the government's interest in the property or it determines that this interest has no value. At one time, the law limited value determinations in discharges of the latter type to only the "fair market value" of the property. Now, the IRS can, in appropriate cases, consider a variety of valuing factors in addition to fair market value, such as, for example, forced sale value.

Discharge of Property from Lien: Substituted sales proceeds

In cases where a dispute arises among competing lienors, including the United States, Code Sec. 6325(b)(3) allows the IRS to issue a certificate of discharge where property subject to a tax lien is sold and the sales proceeds substituted as a fund subject to disposition of the competing claims. The IRS has issued Regulations dealing with this procedure. See Reg. §301.6325-1. A certificate of discharge will only be issued on written application to the appropriate district director. Questions concerning the distribution of the resulting fund may, for example, be resolved by negotiations or by a suit against the United States under Code Sec. 7426.

Discharge of Property from Lien: Administrative procedure for release of erroneous lien by third-party owner

An administrative procedure provides that, as a matter of right, the third-party owner of property against which a federal tax lien has been filed may obtain a certificate of discharge with respect to the lien on such property (Code Sec. 6325(b)(4)).

The certificate of discharge is issued if (1) the third-party owner deposits with the IRS an amount of money equal to the value of the United States' interest in the property as determined by the IRS or (2) the third-party owner posts a bond covering the United States' interest in the property in a form acceptable by the IRS (Code Sec. 6325(b)(4)(A)). This procedural relief is not available to an owner of the property subject to the lien if that owner is the person whose unsatisfied liability gave rise to the lien (Code Sec. 6325(b)(4)(D)).

The IRS is required to refund (with interest at the same rate afforded to overpayments under Code Sec. 6621) the amount deposited and release the bond applicable to such property to the extent that it determines that (1) the liability to which the lien relates can be satisfied from other sources or (2) the value of the United States' interest in the property is less than the IRS's prior determination of the United States' interest in the property (Code Sec. 6325(b)(4)(B)).

Example (1):

On August 1, Karin Harris and Jean Guth signed a contract to sell their townhouse to Kurt and Anne Jones for $275,000. On August 15, three days prior to the scheduled closing, the IRS placed a $130,000 lien on the townhouse for delinquent tax liabilities owed by Harris. After receiving assurances from Harris that the lien was placed on the townhouse in error, Guth posted a bond (acceptable to the IRS) in order to release the lien and the sale was completed as scheduled. The IRS issued a certificate of discharge from the lien and later determined that the $130,000 tax liability could be satisfied by levying upon Harris' IRA account. Because the IRS determined that the tax liability could be satisfied from another source, the IRS refunded the amount paid by Guth with interest and released the bond).

If a certificate of discharge is issued by the IRS, the third-party owner may bring a civil action in a federal district court for a determination of whether the value of the interest of the United States in the property is less than the value determined by the IRS (Code Sec. 7426(a)(4)). The action must be filed within 120 days after the day on which the certificate of discharge is issued. This is the sole judicial remedy for a review of the IRS's determination. However, according to the Committee Report for the IRS Restructuring and Reform Act of 1998 (P.L. 105-206; an action to quiet title under 28 U.S.C. §2410 is available to persons who do not seek expedited review of the IRS's determination under Code Sec. 7426(a)(4).

If the district court rules that the IRS's valuation exceeds the government's actual interest in the property, the court will order a refund of the deposited amount plus interest, and a release of the bond, to the extent of the overvaluation. Interest on the refund is paid from the time the IRS received the deposited amount to the date the refund is made (Code Sec. 7426(b)(5); Code Sec. 7426(g)(3)).

If no action is filed within the 120-day period prescribed under Code Sec. 7426(a)(4), the IRS must, within 60 days after the 120-day period has elapsed, (1) apply the amount deposited or collect on the posted bond to the extent necessary to cover the unsatisfied liability secured by the lien and (2) refund (with interest at the same rate afforded to overpayments under Code Sec. 6621) any amount not used to satisfy the liability (Code Sec. 6324(b)(4)(C)).

Example (2):

On September, 15, 2005, Ken Brown and his sister, Laurie, sign a contract to sell their jointly owned restaurant to Mike Martinez for $500,000. On September 20, a week before the scheduled closing, the IRS assesses Laurie $200,000 for delinquent taxes and places a lien on the property to cover the liabilities. When Martinez threatens to pull out of the deal, Ken posts a money bond acceptable to the IRS to cover Laurie's tax liabilities and receives a certificate of discharge of the lien on the property. On January 2, 2006, Ken files suit in the U.S. District Court to contest the amount of the United States' interest in the property as determined by the IRS. The district court finds that the United States' interest in the property is only $100,000. Accordingly, the court orders a refund of $100,000 ($200,000 - $100,000 = $100,000) plus interest and release of the bond (Code Sec. 7426(a)(5)). However, if Ken waits until January 14, 2006, to file his action, the action would be disallowed because it would be filed outside of the 120-day period after the certificate of discharge is issued (Code Sec. 7426(a)(4)).

Example (3):

Assume the facts are the same as in Example (2), except that Ken does not file a civil action for a determination of the United States' interest in the property within the 120-day period. The IRS determines that an administrative mistake was made and that the value of the United States' interest in the property is only $150,000. Accordingly, within 60 days after the 120-day period has elapsed, the IRS will collect $150,000 on the bond and refund with interest the $50,000 ($200,000 - $150,000 = $50,000), which was not used to satisfy the liability (Code Sec. 6325(b)(4)(C)).

Suspension of statute of limitations on collection after assessment. The limitations period (generally, 10 years) for the collection of tax after assessment (Code Sec. 6502) is suspended from the time the third-party owner is entitled to a certificate of discharge of lien until 30 days after the earlier of (1) the date that the IRS no longer holds any amount as a deposit or bond that was used to satisfy the unpaid liability, or that was refunded or released or (2) the date that the judgment in a civil action under Code Sec. 7426(b)(5) becomes final (Code Sec. 6503(f)(2)). The running of the statute of limitations under this provision is only suspended for the amount of the assessment that represents the United States' interest in the property

Discharge Property from Lien: Nonattachment of lien

Code Sec. 6325(e) requires the IRS to issue a certificate of nonattachment of lien certifying that the property of an individual is free from a tax lien. This certificate is available where there has been a confusion, such as similarity in names, resulting in a mistake in tax lien filing.

Example:

William Jones owns real property situated in the District of Columbia. There is a notice filed with the Recorder of Deeds that there is a tax lien outstanding against property belonging to a person with a similar name. Jones wishes to sell his real property; however, the potential buyer questions the existence of the tax lien. Jones may request that the IRS issue a certificate certifying that his property is not subject to the tax lien outstanding against the property of the person with the same name.

Discharge of Property from Lien: Subordination of lien

Another method for settling disputes involving federal tax liens allows the IRS to issue certificates subordinating its lien in exchange for payments by a junior lien holder on a dollar-for-dollar basis. Also, the federal lien can be subordinated to another security interest if it appears that doing this will produce an increase in the value of the property subject to the liens and ultimately speed collection of the outstanding tax liability (Code Sec. 6325(d)).

Example (1):

Bronson, against whose real property there is a tax lien which has been properly filed, wishes to borrow money, the loan to be secured by a mortgage on the property. Bronson's purpose for the loan is to pay part of the tax liability which gave rise to the lien. Under these circumstances, the IRS may subordinate its lien to the later lien created by the mortgage by issuing a "certificate of subordination."

Example (2):

Fedder has a tax lien outstanding against his property. His only asset is a growing crop on farm land which he leases. He lacks the funds necessary to harvest the crop and cannot secure a loan for this purpose because of the government's tax lien. The IRS may, at its discretion, subordinate its tax lien to the lien of any lender willing to advance funds to Fedder since doing so will increase the likelihood of its collecting the delinquent tax.

Subordination of the special lien for additional estate tax attributable to the special valuation of a farm or other qualified realty may be permitted. These may be valued at actual use for estate tax purposes.

An application for a certificate of subordination must be made, in writing, to the appropriate district director.

Discharge of Property from Lien: Certificate's effect

If the IRS issues a certificate under Code Sec. 6325 and files it in the same office where the tax lien was filed, the certificate conclusively establishes that the lien is extinguished, or the property is discharged, or the lien is subordinated to another security interest, or the lien did not attach to the property (Code Sec. 6325(f)(1)).

To revoke a certificate of release or nonattachment before the 10-year collection period expires (and fully reinstate the lien), notice must be mailed to the delinquent taxpayer's last known address and the revocation notice must be filed in the office where notice of the tax lien was originally filed. A tax lien that is reinstated is effective on the date that notice is mailed to the taxpayer, but not against any holder of a security interest which arises before notice of revocation is filed in the office where notice of the original lien was filed. Reinstatement of a released lien will not extend such lien beyond the last day of the 10-year collection period (Code Sec. 6325(f)(2)).

Example:

A tax assessment is made against B on March 1, 2005. On April 1, 2006, notice of the lien is properly filed. B executes a bona fide mortgage on property he owns to C on June 1, 2006. On July 1, 2006, a certificate releasing the lien is erroneously filed in the office where notice of the lien was filed. On September 2, 2006, the certificate is properly revoked and the lien reinstated, and, on October 15, 2006, notice of reinstatement is properly filed. C's mortgage, since his security interest arose before notice of reinstatement was filed on October 15, 2006, has priority over the federal tax lien.

If a taxpayer disposes of property on which a federal tax lien has been previously discharged and then reacquires the property during the period the lien is still effective, the discharge has no effect and the lien again attaches to the reacquired property (Code Sec. 6325(f)(3)).

Certificates and notices issued under Code Sec. 6325 are to be publicly recorded in the appropriate state office where notice of tax lien is required to be filed under State law. If the certificate or notice may not be filed in the designated state office, it is to be filed with the clerk of the U.S. District Court for the judicial district in which the state office (where the notice of lien was originally filed) is located (Code Sec. 6325(g))

SECTION 6325 OF THE INTERNAL REVENUE CODE - RELEASE OF LIEN OR DISCHARGE OF PROPERTY.

6325(a) RELEASE OF LIEN. --Subject to such regulations as the Secretary may prescribe, the Secretary shall issue a certificate of release of any lien imposed with respect to any internal revenue tax not later than 30 days after the day on which --

6325(a)(1) LIABILITY SATISFIED OR UNENFORCEABLE. --The Secretary finds that the liability for the amount assessed, together with all interest in respect thereof, has been fully satisfied or has become legally unenforceable; or

6325(a)(2) BOND ACCEPTED. --There is furnished to the Secretary and accepted by him a bond that is conditioned upon the payment of the amount assessed, together with all interest in respect thereof, within the time prescribed by law (including any extension of such time), and that is in accordance with such requirements relating to terms, conditions, and form of the bond and sureties thereon, as may be specified by such regulations.

6325(b) DISCHARGE OF PROPERTY. --

6325(b)(1) PROPERTY DOUBLE THE AMOUNT OF THE LIABILITY. --Subject to such regulations as the Secretary may prescribe, the Secretary may issue a certificate of discharge of any part of the property subject to any lien imposed under this chapter if the Secretary finds that the fair market value of that part of such property remaining subject to the lien is at least double the amount of the unsatisfied liability secured by such lien and the amount of all other liens upon such property which have priority over such lien.

6325(b)(2) PART PAYMENT; INTEREST OF UNITED STATES VALUELESS. --Subject to such regulations as the Secretary may prescribe, the Secretary may issue a certificate of discharge of any part of the property subject to the lien if --

6325(b)(2)(A) there is paid over to the Secretary in partial satisfaction of the liability secured by the lien an amount determined by the Secretary, which shall not be less than the value, as determined by the Secretary, of the interest of the United States in the part to be so discharged, or

6325(b)(2)(B) the Secretary determines at any time that the interest of the United States in the part to be so discharged has no value.

In determining the value of the interest of the United States in the part to be so discharged, the Secretary shall give consideration to the value of such part and to such liens thereon as have priority over the lien of the United States.

6325(b)(3) SUBSTITUTION OF PROCEEDS OF SALE. --Subject to such regulations as the Secretary may prescribe, the Secretary may issue a certificate of discharge of any part of the property subject to the lien if such part of the property is sold and, pursuant to an agreement with the Secretary, the proceeds of such sale are to be held, as a fund subject to the liens and claims of the United States, in the same manner and with the same priority as such liens and claims had with respect to the discharged property.

6325(b)(4) RIGHT OF SUBSTITUTION OF VALUE. --

6325(b)(4)(A) IN GENERAL. --At the request of the owner of any property subject to any lien imposed by this chapter, the Secretary shall issue a certificate of discharge of such property if such owner --

6325(b)(4)(A)(i) deposits with the Secretary an amount of money equal to the value of the interest of the United States (as determined by the Secretary) in the property; or

6325(b)(4)(A)(ii) furnishes a bond acceptable to the Secretary in a like amount.

6325(b)(4)(B) REFUND OF DEPOSIT WITH INTEREST AND RELEASE OF BOND. --The Secretary shall refund the amount so deposited (and shall pay interest at the overpayment rate under section 6621), and shall release such bond, to the extent that the Secretary determines that --

6325(b)(4)(B)(i) the unsatisfied liability giving rise to the lien can be satisfied from a source other than such property; or

6325(b)(4)(B)(ii) the value of the interest of the United States in the property is less than the Secretary's prior determination of such value.

6325(b)(4)(C) USE OF DEPOSIT, ETC., IF ACTION TO CONTEST LIEN NOT FILED. --If no action is filed under section 7426(a)(4) within the period prescribed therefor, the Secretary shall, within 60 days after the expiration of such period --

6325(b)(4)(C)(i) apply the amount deposited, or collect on such bond, to the extent necessary to satisfy the unsatisfied liability secured by the lien; and

6325(b)(4)(C)(ii) refund (with interest as described in subparagraph (B)) any portion of the amount deposited which is not used to satisfy such liability.

6325(b)(4)(D) EXCEPTION. --Subparagraph (A) shall not apply if the owner of the property is the person whose unsatisfied liability gave rise to the lien.

6325(c) ESTATE OR GIFT TAX. --Subject to such regulations as the Secretary may prescribe, the Secretary may issue a certificate of discharge of any or all of the property subject to any lien imposed by section 6324 if the Secretary finds that the liability secured by such lien has been fully satisfied or provided for.

6325(d) SUBORDINATION OF LIEN. --Subject to such regulations as the Secretary may prescribe, the Secretary may issue a certificate of subordination of any lien imposed by this chapter upon any part of the property subject to such lien if --

6325(d)(1) there is paid over to the Secretary an amount equal to the amount of the lien or interest to which the certificate subordinates the lien of the United States,

6325(d)(2) the Secretary believes that the amount realizable by the United States from the property to which the certificate relates, or from any other property subject to the lien, will ultimately be increased by reason of the issuance of such certificate and that the ultimate collection of the tax liability will be facilitated by such subordination, or

6325(d)(3) in the case of any lien imposed by section 6324B, if the Secretary determines that the United States will be adequately secured after such subordination.

6325(e) NONATTACHMENT OF LIEN. --If the Secretary determines that, because of confusion of names or otherwise, any person (other than the person against whom the tax was assessed) is or may be injured by the appearance that a notice of lien filed under section 6323 refers to such person, the Secretary may issue a certificate that the lien does not attach to the property of such person.

6325(f) EFFECT OF CERTIFICATE. --

6325(f)(1) CONCLUSIVENESS. --Except as provided in paragraphs (2) and (3), if a certificate is issued pursuant to this section by the Secretary and is filed in the same office as the notice of lien to which it relates (if such notice of lien has been filed) such certificate shall have the following effect:

6325(f)(1)(A) in the case of a certificate of release, such certificate shall be conclusive that the lien referred to in such certificate is extinguished;

6325(f)(1)(B) in the case of a certificate of discharge, such certificate shall be conclusive that the property covered by such certificate is discharged from the lien;

6325(f)(1)(C) in the case of a certificate of subordination, such certificate shall be conclusive that the lien or interest to which the lien of the United States is subordinated is superior to the lien of the United States; and

6325(f)(1)(D) in the case of a certificate of nonattachment, such certificate shall be conclusive that the lien of the United States does not attach to the property of the person referred to in such certificate.

6325(f)(2) REVOCATION OF CERTIFICATE OF RELEASE OR NONATTACHMENT. --If the Secretary determines that a certificate of release or nonattachment of a lien imposed by section 6321 was issued erroneously or improvidently, or if a certificate of release of such lien was issued pursuant to a collateral agreement entered into in connection with a compromise under section 7122 which has been breached, and if the period of limitation on collection after assessment has not expired, the Secretary may revoke such certificate and reinstate the lien --

6325(f)(2)(A) by mailing notice of such revocation to the person against whom the tax was assessed at his last known address, and

6325(f)(2)(B) by filing notice of such revocation in the same office in which the notice of lien to which it relates was filed (if such notice of lien had been filed).

Such reinstated lien (i) shall be effective on the date notice of revocation is mailed to the taxpayer in accordance with the provisions of subparagraph (A), but not earlier than the date on which any required filing of notice of revocation is filed in accordance with the provisions of subparagraph (B), and (ii) shall have the same force and effect (as of such date), until the expiration of the period of limitation on collection after assessment, as a lien imposed by section 6321 (relating to lien for taxes).

6325(f)(3) CERTIFICATES VOID UNDER CERTAIN CONDITIONS. --Notwithstanding any other provision of this subtitle, any lien imposed by this chapter shall attach to any property with respect to which a certificate of discharge has been issued if the person liable for the tax reacquires such property after such certificate has been issued.

6325(g) FILING OF CERTIFICATES AND NOTICES. --If a certificate or notice issued pursuant to this section may not be filed in the office designated by State law in which the notice of lien imposed by section 6321 is filed, such certificate or notice shall be effective if filed in the office of the clerk of the United States district court for the judicial district in which such office is situated.

6325(h) CROSS REFERENCE. --

REGULATIONS: §301.6325-1., Release of lien or discharge of property

(a) Release of lien

(1) Liability satisfied or unenforceable. --Any district director may issue a certificate of release of a lien imposed with respect to any internal revenue tax, whenever he finds that the entire liability for the tax has been satisfied or has become unenforceable as a matter of law (and not merely uncollectible or unenforceable as a matter of fact). Tax liabilities frequently are unenforceable in fact for the time being, due to the temporary nonpossession by the taxpayer of discoverable property or property rights. In all cases the liability for the payment of the tax continues until satisfaction of the tax in full or until the expiration of the statutory period for collection, including such extension of the period for collection as may be agreed upon in writing by the taxpayer and the district director.

(2) Bond accepted. --The district director may, in his discretion, issue a certificate of release of any tax lien if he is furnished and accepts a bond that is conditioned upon the payment of the amount assessed (together with all interest in respect thereof), within the time agreed upon in the bond, but not later than 6 months before the expiration of the statutory period for collection, including any period for collection agreed upon in writing by the district director and the taxpayer. For provisions relating to bonds, see sections 7101 and 7102 and the regulations thereunder.

(b) Discharge of specific property from the lien

(1) Property double the amount of the liability

(i) The district director may, in his discretion, issue a certificate of discharge of any part of the property subject to a lien imposed under chapter 64 of the Code if he determines that the fair market value of that part of the property remaining subject to the lien is at least double the sum of the amount of the unsatisfied liability secured by the lien and of the amount of all other liens upon the property which have priority over the lien. In general, fair market value is that amount which one ready and willing but not compelled to buy would pay to another ready and willing but not compelled to sell the property.

(ii) The following example illustrates a case in which a certificate of discharge may not be given under this subparagraph:

Example. The Federal tax liability secured by a lien is $1,000. The fair market value of all property which after the discharge will continue to be subject to the Federal tax lien is $10,000. There is a prior mortgage on the property of $5,000, including interest, and the property is subject to a prior lien of $100 for real estate taxes. Accordingly, the taxpayer's equity in the property over and above the amount of the mortgage and real estate taxes is $4,900, or nearly five times the amount required to pay the assessed tax on which the Federal tax lien is based. Nevertheless, a discharge under this subparagraph is not permissible. In the illustration, the sum of the amount of the Federal tax liability ($1,000) and of the amount of the prior mortgage and the lien for real estate taxes ($5,000 + $100 = $5,100) is $6,100. Double the sum is $12,200, but the fair market value of the remaining property is only $10,000. Hence, a discharge of the property is not permissible under this subparagraph, since the Code requires that the fair market value of the remaining property be at least double the sum of two amounts, one amount being the outstanding Federal tax liability and the other amount being all prior liens upon such property. In order that the discharge may be issued, it would be necessary that the remaining property be worth not less than $12,200.

(2) Part payment; interest of United States valueless

(i) Part payment. --The district director may, in his discretion, issue a certificate of discharge of any part of the property subject to a lien imposed under chapter 64 of the Code if there is paid over to him in partial satisfaction of the liability secured by the lien an amount determined by him to be not less than the value of the interest of the United States in the property to be so discharged. In determining the amount to be paid, the district director will take into consideration all the facts and circumstances of the case, including the expenses to which the Government has been put in the matter. In no case shall the amount to be paid be less than the value of the interest of the United States in the property with respect to which the certificate of discharge is to be issued.

(ii) Interest of the United States valueless. --The district director may, in his discretion, issue a certificate of discharge of any part of the property subject to the lien if he determines that the interest of the United States in the property to be so discharged has no value.

(iii) Valuation of interest of United States. --For purposes of this subparagraph, in determining the value of the interest of the United States in the property, or any part thereof, with respect to which the certificate of discharge is to be issued, the district director shall give consideration to the value of the property and the amount of all liens and encumbrances thereon having priority over the Federal tax lien. In determining the value of the property, the district director may, in his discretion, give consideration to the forced sale value of the property in appropriate cases.

(3) Discharge of property by substitution of proceeds of sale. --A district director may, in his discretion, issue a certificate of discharge of any part of the property subject to a lien imposed under chapter 64 of the Code if such part of the property is sold and, pursuant to a written agreement with the district director, the proceeds of the sale are held, as a fund subject to the liens and claims of the United States, in the same manner and with the same priority as the lien or claim had with respect to the discharged property. This subparagraph does not apply unless the sale divests the taxpayer of all right, title, and interest in the property sought to be discharged. Any reasonable and necessary expenses incurred in connection with the sale of the property and the administration of the sale proceeds shall be paid by the applicant or from the proceeds of the sale before satisfaction of any lien or claim of the United States.

(4) Application for certificate of discharge. --Any person desiring a certificate of discharge under this paragraph shall submit an application in writing to the district director responsible for collection of the tax. The application shall contain such information as the district director may require.

(1) Certificate of discharge. --If the district director determines that the tax liability for estate or gift tax has been fully satisfied, he may issue a certificate of discharge of any or all property from the lien imposed thereon. If the district director determines that the tax liability for estate or gift tax has been adequately provided for, he may issue a certificate discharging particular items of property from the lien. If a lien has arisen under section 6324B (relating to special lien for additional estate tax attributable to farm, etc., valuation) and the district director determines that the liability for additional estate tax has been fully secured in accordance with §20.6324B-1(c) of this chapter, the district director may issue a certificate of discharge of the real property from the section 6324B lien. The issuance of such a certificate is a matter resting within the discretion of the district director, and a certificate will be issued only in case there is actual need therefor. The primary purpose of such discharge is not to evidence payment or satisfaction of the tax, but to permit the transfer of property free from the lien in case it is necessary to clear title. The tax will be considered fully satisfied only when investigation has been completed and payment of the tax, including any deficiency determined, has been made.

(2) Application for certificate of discharge. --An application for a certificate of discharge of property from the lien for estate or gift tax should be filed with the district director responsible for the collection of the tax. It should be made in writing under penalties of perjury and should explain the circumstances that require the discharge, and should fully describe the particular items for which the discharge is desired. Where realty is involved each parcel sought to be discharged from the lien should be described on a separate page and each such description submitted in duplicate. In the case of an estate tax lien, the application should show the applicant's relationship to the estate, such as executor, heir, devisee, legatee, beneficiary, transferee, or purchaser. If the estate or gift tax return has not been filed, a statement under penalties of perjury may be required showing (i) the value of the property to be discharged, (ii) the basis for such valuation, (iii) in the case of the estate tax, the approximate value of the gross estate and the approximate value of the total real property included in the gross estate, (iv) in the case of the gift tax, the total amount of gifts made during the calendar year and the prior calendar years subsequent to the enactment of the Revenue Act of 1932 and the approximate value of all real estate subject to the gift tax lien, and (v) if the property is to be sold or otherwise transferred, the name and address of the purchaser or transferee and the consideration, if any, paid or to be paid by him.

(d) Subordination of lien

(1) By payment of the amount subordinated. --A district director may, in his discretion, issue a certificate of subordination of a lien imposed under chapter 64 of the Code upon any part of the property subject to the lien if there is paid over to the district director an amount equal to the amount of the lien or interest to which the certificate subordinates the lien of the United States. For this purpose, the tax lien may be subordinated to another lien or interest on a dollar-for-dollar basis. For example, if a notice of a Federal tax lien is filed and a delinquent taxpayer secures a mortgage loan on a part of the property subject to the tax lien and pays over the proceeds of the loan to a district director after an application for a certificate of subordination is approved, the district director will issue a certificate of subordination. This certificate will have the effect of subordinating the tax lien to the mortgage.

(2) To facilitate tax collection

(i) In general. --A district director may, in his discretion, issue a certificate of subordination of a lien imposed under chapter 64 of the Code upon any part of the property subject to the lien if the district director believes that the subordination of the lien will ultimately result in an increase in the amount realized by the United States from the property subject to the lien and will facilitate the ultimate collection of the tax liability.

(ii) Examples. --The provisions of this subparagraph may be illustrated by the following examples:

Example (1). A, a farmer, needs money in order to harvest his crop. A Federal tax lien, notice of which has been filed, is outstanding with respect to A's property. B, a lending institution, is willing to make the necessary loan if the loan is secured by a first mortgage on the farm which is prior to the Federal tax lien. Upon examination, the district director believes that ultimately the amount realizable from A's property will be increased and the collection of the tax liability will be facilitated by the availability of cash when the crop is harvested and sold. In this case, the district director may, in his discretion, subordinate the tax lien on the farm to the mortgage securing the crop harvesting loan.

Example (2). C owns a commercial building which is deteriorating and in unsalable condition. Because of outstanding Federal tax liens, notices of which have been filed, C is unable to finance the repair and rehabilitation of the building. D, a contractor, is willing to do the work if his mechanic's lien on the property is superior to the Federal tax liens. Upon examination, the district director believes that ultimately the amount realizable from C's property will be increased and the collection of the tax liability will be facilitated by arresting deterioration of the property and restoring it to salable condition. In this case, the district director may, in his discretion, subordinate the tax lien on the building to the mechanic's lien.

Example (3). E, a manufacturer of electronic equipment, obtains financing from F, a lending institution, pursuant to a security agreement, with respect to which a financing statement was duly filed under the Uniform Commercial Code on June 1, 1970. On April 15, 1971, F gains actual notice or knowledge that notice of a Federal tax lien had been filed against E on March 31, 1971, and F refuses to make further advances unless its security interest is assured of priority over the Federal tax lien. Upon examination, the district director believes that ultimately the amount realizable from E's property will be increased and the collection of the tax liability will be facilitated if the work in process can be completed and the equipment sold. In this case, the district director may, in his discretion, subordinate the tax lien to F's security interest for the further advances required to complete the work.

Example (4). Suit is brought against G by H, who claims ownership of property the legal title to which is held by G. A Federal tax lien against G, notice of which has previously been filed, will be enforceable against the property if G's title is confirmed. Because section 6323(b)(8) is inapplicable, J, an attorney, is unwilling to defend the case for G unless he is granted a contractual lien on the property, superior to the Federal tax lien. Upon examination, the district director believes that the successful defense of the case by G will increase the amount ultimately realizable from G's property and will facilitate collection of the tax liability. In this case, the district director may, in his discretion, subordinate the tax lien to J's contractual lien on the disputed property to secure J's reasonable fees and expenses.

(3) Subordination of section 6324B lien. --The district director may issue a certificate of subordination with respect to a lien imposed by section 6324B if the district director determines that the interests of the United States will be adequately secured after such subordination. For example, A, a qualified heir of qualified real property, needs to borrow money for farming purposes. If the current fair market value of the real property is $150,000, the amount of the claim to which the special lien is to be subordinated is $40,000, the potential liability for additional tax (as defined in section 2032A(c)) is less than $55,000, and there are no other facts to indicate that the interest of the United States will not be adequately secured, the district director may issue a certificate of subordination. The result would be the same if the loan were for bona fide purposes other than farming.

(4) Application for certificate of subordination. --Any person desiring a certificate of subordination under this paragraph shall submit an application therefor in writing to the district director responsible for the collection of the tax. The application shall contain such information as the district director may require.

(e) Nonattachment of lien. --If a district director determines that, because of confusion of names or otherwise, any person (other than the person against whom the tax was assessed) is or may be injured by the appearance that a notice of lien filed in accordance with §301.6323(f)-1 refers to such person, the district director may issue a certificate of nonattachment. Such certificate shall state that the lien, notice of which has been filed, does not attach to the property of such person. Any person desiring a certificate of nonattachment under this paragraph shall submit an application therefor in writing to the district director responsible for the collection of the tax. The application shall contain such information as the district director may require.

(f) Effect of certificate

(1) Conclusiveness. --Except as provided in subparagraphs (2) and (3) of this paragraph, if a certificate is issued under section 6325 by a district director and the certificate is filed in the same office as the notice of lien to which it relates (if the notice of lien has been filed), the certificate shall have the following effect --

(i) In the case of a certificate of release issued under paragraph (a) of this section, the certificate shall be conclusive that the tax lien referred to in the certificate is extinguished;

(ii) In the case of a certificate of discharge issued under paragraph (b) or (c) of this section, the certificate shall be conclusive that the property covered by the certificate is discharged from the tax lien;

(iii) In the case of a certificate of subordination issued under paragraph (d) of this section, the certificate shall be conclusive that the lien or interest to which the Federal tax lien is subordinated is superior to the tax lien; and

(iv) In the case of a certificate of nonattachment issued under paragraph (e), the certificate shall be conclusive that the lien of the United States does not attach to the property of the person referred to in the certificate.

(2) Revocation of certificate of release or nonattachment

(i) In general. --If a district director determines that either --

(a) A certificate of release or a certificate of nonattachment of the general tax lien imposed by section 6321 was issued erroneously or improvidently, or

(b) A certificate of release of such lien was issued in connection with a compromise agreement under section 7122 which has been breached,

and if the period of limitation on collection after assessment of the tax liability has not expired, the district director may revoke the certificate and reinstate the tax lien. The provisions of this subparagraph do not apply in the case of the lien imposed by section 6324 relating to estate and gift taxes.

(ii) Method of revocation and reinstatement. --The revocation and reinstatement described in subdivision (i) of this subparagraph is accomplished by --

(a) Mailing notice of the revocation to the taxpayer at his last known address (see §301.6212-2 for further guidance regarding the definition of last known address); and

(b) Filing notice of the revocation of the certificate in the same office in which the notice of lien to which it relates was filed (if the notice of lien has been filed).

(iii) Effect of reinstatement

(a) Effective date. --A tax lien reinstated in accordance with the provisions of this subparagraph is effective on and after the date the notice of revocation is mailed to the taxpayer in accordance with the provisions of subdivision (ii)(a) of this subparagraph, but the reinstated lien is not effective before the filing of notice of revocation, in accordance with the provisions of subdivision (ii)(b) of this subparagraph, if the filing is required by reason of the fact that a notice of the lien had been filed.

(b) Treatment of reinstated lien. --As of the effective date of reinstatement, a reinstated lien has the same force and effect as a general tax lien imposed by section 6321 which arises upon assessment of a tax liability. The reinstated lien continues in existence until the expiration of the period of limitation on collection after assessment of the tax liability to which it relates. The reinstatement of the lien does not retroactively reinstate a previously filed notice of lien. The reinstated lien is not valid against any holder of a lien or interest described in §301.6323(a)-1 until notice of the reinstated lien has been filed in accordance with the provisions of §301.6323(f)-1 subsequent to or concurrent with the time the reinstated lien became effective.

(iv) Example. --The provisions of this subparagraph may be illustrated by the following example:

Example. On March 1, 1967, an assessment of an unpaid Federal tax liability is made against A. On March 1, 1968, notice of the Federal tax lien, which arose at the time of assessment, is filed. On April 1, 1968, A executes a bona fide mortgage on property belonging to him to B. On May 1, 1968, a certificate of release of the tax lien is erroneously issued and is filed by A in the same office in which the notice of lien was filed. On June 3, 1968, the lien is reinstated in accordance with the provisions of this subparagraph. On July 1, 1968, A executes a bona fide mortgage on property belonging to him to C. On August 1, 1968, a notice of the lien which was reinstated is properly filed in accordance with the provisions of §301.6323(f)-1. The mortgages of both B and C will have priority over the rights of the United States with respect to the tax liability in question. Because a reinstated lien continues in existence only until the expiration of the period of limitation on collection after assessment of the tax liability to which the lien relates, in the absence of any extension or suspension of the period of limitation on collection after assessment, the reinstated lien will become unenforceable by reason of lapse of time after February 28, 1973.

(3) Certificates void under certain conditions. --Notwithstanding any other provisions of subtitle F of the Code, any lien for Federal taxes attaches to any property with respect to which a certificate of discharge has been issued if the person liable for the tax reacquires the property after the certificate has been issued. Thus, if property subject to a Federal tax lien is discharged therefrom and is later reacquired by the delinquent taxpayer at a time when the lien is still in existence, the tax lien attaches to the reacquired property and is enforceable against it as in the case of after-acquired property generally.

(g) Filing of certificates and notices. --If a certificate or notice described in this section may not be filed in the office designated by State law in which the notice of lien imposed by section 6321 (to which the certificate or notice relates) is filed, the certificate or notice is effective if filed in the office of the clerk of the United States district court for the judicial district in which the State office where the notice of lien is filed is situated. [Reg. §301.6325-1.]

.01 Historical Comment. Proposed 12/11/54. Adopted 12/31/54 by T.D. 6119. Amended 11/10/59 by T.D. 6425, 1/6/64 by T.D. 6700, 8/20/76 by T.D. 7429, 11/9/82 by T.D. 7847 and 1/11/2001 by T.D. 8939.

NON: FED01 S301.6325-1(F)(2)(III)(A) http://tax.cchgroup.com/network&JA=LK&fNoSplash=Y&&LKQ=GUID%3Ab13dfae3-ce09-3e36-a530-5104e4c8364a&KT=L&fNoLFN=TRUE& FED01 #57266 [FEDCP 99FED ]

EMP-REG, 2006FED ¶38,167, §401.6325-1., Release of liens

Caution: Temporary Reg. §401.6325-1 does not reflect recent law changes. For details, see ¶38,167.01.

Release of liens

(a) In general. --The district director shall issue a certificate of release for a filed notice of Federal tax lien not later than 30 days after the date on which the district director finds that the entire tax liability listed in such notice of Federal tax lien has been fully satisfied (as defined in paragraph (c) of this section) or has become legally unenforceable.

(b) Certificate of release for a lien which has become legally unenforceable. --The district director shall have the authority to file a notice of Federal tax lien which also contains a certificate of release pertaining to those liens which become legally unenforceable. Such release will become effective as a release as of a date prescribed in the document containing the notice of Federal tax lien and certificate of release.

(c) Satisfaction of tax liability. --For purposes of paragraph (a) of this section, satisfaction of the tax liability occurs when --

(1) The district director determines that the entire tax liability listed in a notice of Federal tax lien has been fully satisfied. Such determination will be made as soon as practicable after tender of payment; or

(2) The taxpayer provides the district director with proof of full payment (as defined in paragraph (d) of this section) with respect to the entire tax liability listed in a notice of Federal tax lien together with the information and documents set forth in paragraph (f) of this section.

See paragraph (e) of this section if more than one tax liability is listed in a notice of Federal tax lien.

(d) Proof of full payment. --As used in paragraph (c)(2) of this section, the term "proof of full payment" means --

(1) An internal revenue cashier's receipt reflecting full payment of the tax liability in question;

(2) A canceled check in an amount sufficient to satisfy the tax liability for which the release is being sought; or

(3) Any other manner of proof acceptable to the district director.

(e) Notice of a Federal tax lien which lists multiple liabilities. --When a notice of Federal tax lien lists multiple tax liabilities, the district director shall issue a certificate of release when all of the tax liabilities listed in the notice of Federal tax lien have been fully satisfied or have become legally unenforceable. In addition, if the taxpayer requests that a certificate of release be issued with respect to one or more tax liabilities listed in the notice of Federal tax lien and such liability has been fully satisfied or has become legally unenforceable, the district director shall issue a certificate of release. For example, if a notice of Federal tax lien lists two separate liabilities and one of the liabilities is satisfied, the taxpayer may request the issuance of a certificate of release with respect to the satisfied tax liability and the district director shall issue a release. See paragraph (c) of this section in determining when a tax lien has been fully satisfied. A request made by the taxpayer shall be made to the district director in accordance with the procedures in paragraph (f) of this section.

(f) Taxpayer requests. --A request for a certificate of release with respect to a notice of Federal tax lien shall be submitted in writing to the district director (marked for the attention of the Chief, Special Procedures Function) of the district in which the notice of Federal tax lien was filed. The request shall contain the following --

(1) Name and address of the taxpayer;

(2) A copy of the notice of Federal tax lien affecting the property; and

(3) The grounds upon which the issuance of a release is sought.

(g) Effective date. --The provisions of this section are effective with respect to a notice of Federal tax lien (1) which is filed after December 31, 1982, (2) which is satisfied after December 31, 1982, or (3) with respect to which the taxpayer after December 31, 1982, requests the district director to issue a certificate of release on the grounds that the liability was satisfied or legally unenforceable. [Temporary Reg. §401.6325-1.]

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