Release
of levy and notice of release
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note
§ 6343(e) requires the IRS to release a wage levy, as soon
as practicable, upon agreement with the taxpayer that the tax
is not collectible where the wage levy is creating an economic
hardship on the taxpayer and where the levy does not yield any
net proceeds to the Service following the calculation of the taxpayer's
exempt amount under I.R.C. § 6334(d)(2). Sec. 6343. Authority
to release levy and return property
(a) Release of levy and notice of release
(1) In general
Under regulations prescribed by the Secretary, the Secretary shall
release the levy upon all, or part of, the property or rights
to property levied upon and shall promptly notify the person upon
whom such levy was made (if any) that such levy has been released
if -
(A) the liability for which such levy was made
is satisfied or becomes unenforceable by reason of lapse of time,
(B) release of such levy will facilitate the collection of such
liability,
(C) the taxpayer has entered into an agreement under section 6159
to satisfy such liability by means of installment payments, unless
such agreement provides otherwise,
(D) the Secretary has determined that such levy is creating an
economic hardship due to the financial condition of the taxpayer,
or
(E) the fair market value of the property exceeds such liability
and release of the levy on a part of such property could be made
without hindering the collection of such liability. For purposes
of subparagraph (C), the Secretary is not required to release
such levy if such release would jeopardize the secured creditor
status of the Secretary.
(2) Expedited determination on certain business
property
In the case of any tangible personal property essential in carrying
on the trade or business of the taxpayer, the Secretary shall
provide for an expedited determination under paragraph (1)
if levy on such tangible personal property would prevent the taxpayer
from carrying on such trade or business. (3) Subsequent levy The
release of levy on any property under paragraph (1) shall
not prevent any subsequent levy on such property.
(b) Return of property If the Secretary determines that property
has been wrongfully
levied upon, it shall be lawful for the Secretary to return -
(1) the specific property levied upon,
(2) an amount of money equal to the amount of money levied upon,
or (3) an amount of money equal to the amount of money received
by the United States from a sale of such property.
Property may be returned at any time. An amount
equal to theamount of money levied upon or received from such
sale may be returned at any time before the expiration of 9 months
from the
date of such levy. For purposes of paragraph (3), if property
is declared purchased by the United States at a sale pursuant
to section 6335(e) (relating to manner and conditions of sale),
the
United States shall be treated as having received an amount of
money equal to the minimum price determined pursuant to such section
or (if larger) the amount received by the United States
from the resale of such property.
(c) Interest Interest shall be allowed and paid at the overpayment
rate established under section 6621 -
(1) in a case described in subsection (b)(2),
from the date the Secretary receives the money to a date (to be
determined by the Secretary) preceding the date of return by not
more than 30 days,
or
(2) in a case described in subsection (b)(3), from the date of
the sale of the property to a date (to be determined by the Secretary)
preceding the date of return by not more than 30 days.
(d) Return of property in certain cases
If -
(1) any property has been levied upon, and (2) the Secretary determines
that -
(A) the levy on such property was premature or otherwise not in
accordance with administrative procedures of the Secretary, (B)
the taxpayer has entered into an agreement under section
6159 to satisfy the tax liability for which the levy was imposed
by means of installment payments, unless such agreement provides
otherwise,
(C) the return of such property will facilitate the collection
of the tax liability, or
(D) with the consent of the taxpayer or the National Taxpayer
Advocate, the return of such property would be in the best interests
of the taxpayer (as determined by the National Taxpayer Advocate)
and the United States, the provisions of subsection (b) shall
apply in the same manner as
if such property had been wrongly levied upon, except that no
interest shall be allowed under subsection (c). (e) Release of
levy upon agreement that amount is not collectible In the case
of a levy on the salary or wages payable to or received by the
taxpayer, upon agreement with the taxpayer that the tax is not
collectible, the Secretary shall release such levy as soon as
practicable.
-SOURCE-
(Aug. 16, 1954, ch. 736, 68A Stat. 789; Pub. L. 89-719, title
I,
Sec. 104(i), Nov. 2, 1966, 80 Stat. 1138; Pub. L. 94-455, title
XIX, Sec. 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1834; Pub. L.
96-167, Sec. 4(a), Dec. 29, 1979, 93 Stat. 1275; Pub. L. 99-514,
title XV, Sec. 1511(c)(10), Oct. 22, 1986, 100 Stat. 2745; Pub.
L.
100-647, title VI, Sec. 6236(f), Nov. 10, 1988, 102 Stat. 3740;
Pub. L. 104-168, title V, Sec. 501(b), July 30, 1996, 110 Stat.
1460; Pub. L. 105-206, title I, Sec. 1102(d)(1)(B), title III,
Sec.
3432(a), July 22, 1998, 112 Stat. 704, 759.)
-MISC1-
AMENDMENTS
1998 - Subsec. (d)(2)(D). Pub. L. 105-206, Sec. 1102(d)(1)(B),
substituted ''National Taxpayer Advocate'' for ''Taxpayer
Advocate'' in two places.
Subsec. (e). Pub. L. 105-206, Sec. 3432(a), added subsec. (e).
1996 - Subsec. (d). Pub. L. 104-168 added subsec. (d).
1988 - Subsec. (a). Pub. L. 100-647 inserted ''and notice of
release'' after ''levy'' in heading and amended text generally.
Prior to amendment, text read as follows: ''It shall be lawful
for
the Secretary, under regulations prescribed by the Secretary,
to
release the levy upon all or part of the property or rights to
property levied upon where the Secretary determines that such
action will facilitate the collection of the liability, but such
release shall not operate to prevent any subsequent levy.''
1986 - Subsec. (c). Pub. L. 99-514 substituted ''the overpayment
rate established under section 6621'' for ''an annual rate
established under section 6621''.
1979 - Subsec. (c). Pub. L. 96-167 added subsec. (c).
1976 - Pub. L. 94-455 struck out ''or his delegate'' after
''Secretary'' wherever appearing.
1966 - Pub. L. 89-719 inserted ''and return property'' in section
catchline, designated existing provisions as subsec. (a), and
added
subsec. (b).
EFFECTIVE DATE OF 1998 AMENDMENT
Amendment by section 1102 of Pub. L. 105-206 effective July 22,
1998, see section 1102(f) of Pub. L. 105-206, set out as a note
under section 7803 of this title.
Pub. L. 105-206, title III, Sec. 3432(b), July 22, 1998, 112
Stat. 759, provided that: ''The amendment made by this section
(amending this section) shall apply to levies imposed after
December 31, 1999.''
EFFECTIVE DATE OF 1988 AMENDMENT
Amendment by Pub. L. 100-647 applicable to levies issued on or
after July 1, 1989, see section 6236(h)(1) of Pub. L. 100-647,
set
out as a note under section 6331 of this title.
EFFECTIVE DATE OF 1986 AMENDMENT
Amendment by Pub. L. 99-514 applicable for purposes of
determining interest for periods after Dec. 31, 1986, see section
1511(d) of Pub. L. 99-514, set out as a note under section 47
of
this title.
EFFECTIVE DATE OF 1979 AMENDMENT
Section 4(c)(1) of Pub. L. 96-167 provided that: ''The amendment
made by subsection (a) (amending this section) shall apply to
levies made after the date of the enactment of this Act (Dec.
29,
1979).''
EFFECTIVE DATE OF 1966 AMENDMENT
Amendment by Pub. L. 89-719 applicable after Nov. 2, 1966,
regardless of when title or lien of United States arose or when
lien or interest of another person was acquired, with certain
exceptions, see section 114(a)-(c) of Pub. L. 89-719, set out
as a
note under section 6323 of this title.
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