[Federal Register Volume 59, Number 203 (Friday, October 21, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26073]
[[Page Unknown]]
[Federal Register: October 21, 1994]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 301
[TD 8568]
RIN 1545-AN46
Property Exempt From Levy
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
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SUMMARY: This document contains final regulations regarding property
exempt from levy. These regulations reflect changes made by the
Technical and Miscellaneous Revenue Act of 1988 (TAMRA) and other
public laws to section 6334 concerning the determination of property
exempt from levy. The regulations affect taxpayers whose wages, salary,
or other income are the subject of a levy by the Internal Revenue
Service.
DATES: These regulations are effective October 21, 1994.
These regulations apply to levies made on or after July 1, 1989.
FOR FURTHER INFORMATION CONTACT: Jerome D. Sekula, 202-622-3640 (not a
toll-free call).
SUPPLEMENTARY INFORMATION:
Background
This document contains final regulations amending the Procedure and
Administration Regulations (26 CFR part 301) under section 6334 of the
Internal Revenue Code (Code). The regulations reflect the amendment of
section 6334 by sections 1015(o) and 6236(c) of the Technical and
Miscellaneous Revenue Act of 1988, Public Law. 100-647, as well as the
Tax Reform Act of 1986, Public Law 99-514, the Tax Equity and Fiscal
Responsibility Act of 1982, Public Law 97-248, and the Tax Reform Act
of 1976, Public Law 94-455, which had not previously been reflected in
the regulations.
On May 27, 1992, a notice of proposed rulemaking relating to
property exempt from levy was published in the Federal Register (57 FR
22189). Written comments responding to this notice were received. No
public hearing was requested or held. After consideration of all the
comments, the proposed regulations under section 6334 are adopted as
revised by this Treasury decision.
Explanation of Revisions and Summary of Comments
One commentator suggested that the final regulations provide that
all retirement plans be exempt from levy, not only those plans
enumerated in section 6334 of the Code. This suggestion is not adopted.
Congress has specifically provided that certain property is exempt from
levy. In fact, section 6334(c) provides that no property is exempt from
levy other than property specifically enumerated in the Code.
The proposed regulations provide that where an individual is paid
or receives wages, salary, or other income on a one- time basis, the
exempt amount is computed as if the taxpayer had been paid for the one-
week period ending on the day of payment. One commentator raised
questions concerning the application of this ``one time basis'' rule
where an individual was paid on a recurrent, but irregular, basis.
Another commentator questioned whether the proposed rule is a correct
interpretation of section 6334(d)(3). This commentator argued that
under section 6334(d)(3) the exemption amount should be calculated
using the total time period over which the wages, salary, or other
income was earned.
The proposed regulations have been revised to address the concerns
of these commentators. Under the final regulations, when taxpayers are
paid on a one-time basis or are paid on a recurrent, but irregular,
basis which does not comport with an established calendar period
regularly used by the employer or other person being levied upon,
taxpayers are entitled to the exempt amount for each week to which the
payment received is attributable.
One commentator raised a concern regarding levies that span more
than one calendar year where the standard deduction or the amount of
the personal exemption changes by operation of law (such as by indexing
or otherwise). Under the proposed regulations, the exempt amount
remains the same in the second year. The commentator stated that this
could cause hardship for employers with automated payroll systems
because those employers might have to maintain separate, manual
accounts for those employees who had been levied upon in a preceding
year. The commentator suggested that employers should be required to
calculate and use the new exempt amount when a change in the standard
deduction amount or personal exemption amount occurs by operation of
law.
While the suggested change might be beneficial to some employers,
the Service and Treasury are concerned that it could result in a
hardship to other employers (particulary smaller employers) who would
be required to reexamine the statement of each employee who files for
exemption and recompute a new exempt amount each time a change in the
law occurs. In order to accommodate these conflicting concerns, under
the final regulations a taxpayer may submit a new verified statement to
his or her employer to claim a new exempt amount based on law changes
effective in the year in which the claim is filed. This permits a
taxpayer to claim an additional exempt amount but avoids burdening
businesses with the requirement to reexamine the statement of each
employee who files for exemption and automatically recompute a new
exempt amount based on law changes alone. However, employers who wish
to use the new exempt amount can request that their employees submit
new verified statements in order to recompute new exempt amounts based
on the changes in the law.
Under the proposed regulations, when payments are made on the basis
of a daily pay period, the exempt amount is calculated on the basis of
360 days. The final regulations provide that the exempt amount is
calculated on the basis of 260 days, the number of work days in a year
(assuming a five day work week and 52 work weeks in a year). This
change increases the exempt amount available to a taxpayer who works on
a daily pay-period basis. The Service and Treasury believe that this
change is consistent with the requirement of section 6334(d)(3) of the
Code.
Effective Date
These regulations are effective for levies made on or after July 1,
1989. However, any reasonable attempt to comply with the statutory
amendments addressed by these regulations prior to February 21, 1995
will be considered as meeting the requirements of these regulations.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in EO 12866. Therefore, a
regulatory assessment is not required. It also has been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to
these regulations, and therefore, a Regulatory Flexibility Analysis is
not required. Pursuant to section 7805(f) of the Code, the notice of
proposed rulemaking was submitted to the Small Business Administration
for comment on its impact on small business.
Drafting Information
The principal author of these final regulations is Jerome D.
Sekula, Office of the Assistant Chief Counsel (General Litigation),
IRS. However, personnel from other offices of the Internal Revenue
Service and Treasury Department participated in their development.
List of Subjects in 26 CFR Part 301
Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income
taxes, Penalties, Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR part 301 is amended as follows:
PART 301--[AMENDED]
Paragraph 1. The authority citation for part 301 continues to read
in part as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 301.6334-1 is amended as follows:
1. In paragraph (a)(2), in the first sentence, ``$500'' is removed
and ``$1,650 ($1,550 for levies issued prior to January 1, 1990)''
added in its place.
2. In paragraph (a)(3), ``$250'' is removed and ``$1,100 ($1,050
for levies issued prior to January 1, 1990)'' added in its place.
3. In paragraph (a)(8), the last sentence is removed.
4. In paragraph (a)(9), ``Sec. 301.6334-6'' is removed and
``Sec. 301.6334-4'' added in its place.
5. Paragraphs (a)(10) through (a)(13), (d) and (e) are added to
read as follows:
Sec. 301.6334-1 Property exempt from levy.
(a) * * *
(10) Certain service-connected disability payments. Any amount
payable to an individual as a service-connected (within the meaning of
section 101(16) of title 38, United States Code (U.S.C.)) disability
benefit under--
(i) Subchapters II (wartime disability compensation), III (wartime
death compensation), IV (peacetime disability compensation), V
(peacetime death compensation), or VI (general compensation provisions)
of chapter 11 of title 38, U.S.C.; or
(ii) Chapters 13 (dependency and indemnity compensation for service
commenced deaths), 21 (specially adapted housing for disabled
veterans), 23 (burial benefits), 31 (vocational rehabilitation), 32
(post-Vietnam era veterans' educational assistance), 34 (veterans'
educational assistance), 35 (survivors' and dependents' educational
assistance), 37 (home, condominium, and mobile home loans), or 39
(automobiles and adaptive equipment for certain disabled veterans and
members of the armed forces) of title 38, U.S.C.
(11) Certain public assistance payments. Any amount payable to an
individual as a recipient of public assistance under--
(i) Title IV (relating to aid to families with dependent children)
or title XVI (relating to supplemental security income for the aged,
blind, and disabled) of the Social Security Act (42 U.S.C. 301 et
seq.); or
(ii) State or local government public assistance or public welfare
programs for which eligibility is determined by a needs or income test.
(12) Assistance under Job Training Partnership Act. Any amount
payable to a participant under the Job Training Partnership Act (29
U.S.C. 1501 et. seq.) from funds appropriated pursuant to such Act.
(13) Principal residence exempt in absence of certain approval or
jeopardy. Except to the extent provided in section 6334(e), the
principal residence (within the meaning of section 1034) of the
taxpayer whose tax liability is being sought to be collected upon.
* * * * *
(d) Levy allowed on principal residence. The principal residence of
the taxpayer is not exempt from levy if--
(1) A district director or an assistant district director
personally approves, in writing, the levy on such property; or
(2) The district director determines that the collection of tax is
in jeopardy.
(e) Effective date. These provisions are effective with respect to
levies made on or after July 1, 1989. However, any reasonable attempt
by a taxpayer to comply with the statutory amendments addressed by
these regulations prior to February 21, 1995 will be considered as
meeting the requirements of these regulations.
Par. 3. Sections 301.6334-2, 301.6334-3 and 301.6334-4 are revised
to read as follows:
Sec. 301.6334-2 Wages, salary, and other income.
(a) In general. Under section 6334 (a)(9) and (d) certain amounts
payable to or received by a taxpayer as wages, salary, or other income
are exempt from levy. This section describes the income of a taxpayer
that is eligible for the exemption from levy (paragraph (b) of this
section) and how exempt amounts are to be paid to the taxpayer
(paragraph (c) of this section). Section 301.6334-3 describes that sum
that will be exempt from levy for each of the taxpayer's pay periods.
Pay periods are described in Sec. 301.6334-3. For the amounts exempt
from levy, see Sec. 301.6334-3.
(b) Eligible taxpayer income. Only wages, salary, or other income
payable to the taxpayer after the levy is made on the payor may be
exempt from levy under section 6334(a)(9). No amount of wages, salary,
or other income that is paid to the taxpayer before levy is made on the
payor will be so exempt from levy under section 6334(a)(9). The
provisions of this paragraph (b) may be illustrated by the following
example:
Example. Delinquent taxpayer A, an individual, is employed by
the M Corporation and is paid wages on Friday of each week.
Accordingly, A is paid wages on Friday, February 16, 1990. On
Saturday, February 17, A deposits these wages into his personal
checking account at Bank N. On Tuesday, February 20, a notice of
levy is served on the M Corporation and also on Bank N. Amounts
payable to A as wages on Friday, February 23, 1990, and any payday
thereafter may be exempt from levy under section 6334(a)(9). No
amount of wages A deposited in his account at Bank N on February 17,
1990, is exempt from levy under section 6334(a)(9).
(c) Payment of exempt amounts to taxpayer--(1) From wages, salary,
or income from other sources where levy on all sources not made. In the
case of a taxpayer who has more than one source of wages, salary, or
other income, the district director may elect to levy on only one or
more sources while leaving other sources of income free from levy. If
the wages, salary, or other income that the district director leaves
free from levy equal or exceed the amount to which the taxpayer is
entitled as an exemption from levy under section 6334(a)(9), computed
in accordance with Sec. 301.6334-3 (and are not otherwise exempt), the
district director may treat no amount of the taxpayer's wages, salary,
or other income on which the district director elects to levy as exempt
from levy. In such a case, the district director must notify the
employer or other person upon whom the levy is served that no amount of
the taxpayer's wages, salary, or other income is exempt from levy. The
employer or other person upon whom the levy is served may rely on such
notification in paying over amounts pursuant to the levy. In the
absence of such notification from the district director, however, the
employer or other person upon whom the levy is served must determine
the amount exempt from levy pursuant to Sec. 301.6334-3 as if that
employer or other person upon whom the levy is served is the only
source of wages, salary, or other income. Amounts not exempt from levy
are to be paid to the district director in accordance with the terms of
the levy. The provisions of this paragraph (c)(1) may be illustrated by
the following example:
Example. Delinquent taxpayer C is an employee of O Corporation
and is paid wages totalling $450 on Friday of each week. C also
performs services for P Corporation and is paid a salary of $250 on
Friday of each week. On Tuesday, February 20, 1990, a levy is served
on O Corporation with respect to the wages payable to C. A levy is
not served on P Corporation. C's filing status is single and C is
entitled to 1 personal exemption. Under Sec. 301.6334-3, C is
entitled to an exemption from levy under 6334(a)(9) totalling
$101.92 for each weekly pay period. However, because levy has not
been made on C's salary paid by the P Corporation ($250 per week)
and that salary exceeds the weekly amount ($101.92) to which C is
entitled as exempt from levy, the district director may treat no
amount of C's wages paid by the O Corporation as exempt from levy.
If the district director requires such treatment, the district
director must notify O Corporation that no amount of C's wages is
exempt from levy and O Corporation may rely on such notification; in
the absence of such notification O Corporation must treat $101.92 as
exempt from levy.
(2) Where sources not levied upon are less than exempt amount. If
the taxpayer's income upon which the district director does not levy is
less than the amount to which the taxpayer is entitled as exempt from
levy, then an additional amount, determined to be exempt from levy
pursuant to Sec. 301.6334-3, may be paid to the taxpayer from the
sources of wages, salary, or other income upon which levy has been
made. In such a case, the district director must designate those wages,
salary, or other income from which the exempt amount is to be paid to
the taxpayer, and must notify the employer or other person upon whom
the levy is served of the amount of the taxpayer's wages, salary, or
other income that is exempt from levy. The employer or other person may
rely on such notification in paying over amounts pursuant to the levy.
In the absence of such notification from the district director, the
employer or other person upon whom the levy is served must determine
the amount exempt from levy pursuant to Sec. 301.6334-3 as if that
employer or other person upon whom the levy is served is the only
source of wages, salary, or other income. Amounts not exempt from levy
are to be paid to the district director in accordance with the terms of
the levy. The provisions of this paragraph (c)(2) may be illustrated by
the following example:
Example. Delinquent taxpayer C is an employee of O Corporation
and is paid wages totalling $50 on Friday of each week. C also
performs services for P Corporation and is paid a salary of $75 on
Friday of each week. On Tuesday, February 20, 1990, a levy is served
on P Corporation with respect to the wages and salary of C. C's
filing status is single and C is entitled to 1 personal exemption.
Under Sec. 301.6334-3, C is entitled to an exemption from levy under
section 6334(a)(9) totalling $101.92 for each weekly pay period. The
district director may notify P Corporation that only $51.92 of C's
wages is exempt from levy and P Corporation may rely on such
notification; in the absence of such notification, P Corporation
must treat the entire $75 salary as exempt from levy.
(d) Effective date. These provisions are effective with respect to
levies made on or after July 1, 1989. However, any reasonable attempt
by a taxpayer to comply with the statutory amendments addressed by
these regulations prior to February 21, 1995 will be considered as
meeting the requirements of these regulations.
Sec. 301.6334-3 Determination of exempt amount.
(a) Individuals paid on weekly basis. In the case of any individual
who is paid or receives all of his or her wages, salary, and other
income on a weekly basis, the amount of wages, salary, and other income
payable to or received by him or her during any week that is exempt
from levy under section 6334(a)(9) is the exempt amount.
(b) Term defined. The term exempt amount means an amount equal to--
(1) The sum of--
(i) The standard deduction (including additional standard
deductions on account of age or blindness); and
(ii) The aggregate amount of the deductions for personal exemptions
allowed the taxpayer under section 151 in the taxable year in which
such levy occurs;
(2) Divided by 52.
(c) Written and properly verified statement. Unless the taxpayer
submits to the employer for forwarding to the district director a
written and properly verified statement (as described in Sec. 301.6334-
4) specifying the facts necessary to determine the proper amount under
paragraphs (b)(1) (i) and (ii) of this section, paragraphs (b)(1) (i)
and (ii) of this section must be applied as if the taxpayer were a
married individual filing a separate return with only 1 personal
exemption.
(d) Individuals paid on basis other than weekly--(1) In general. In
the case of an individual who is paid or receives wages, salary, and
other income other than on a weekly basis, the amount payable to that
individual during any applicable pay period that is exempt from levy
under section 6334(a)(9) is the amount that as nearly as possible will
result in the same total exemption from levy for such individual over
that period of time other than weekly as that to which the individual
would have been entitled under paragraph (b) of this section if, during
such period of time, the individual were paid or received such wages,
salary, and other income on a regular weekly basis.
(2) Specific pay periods other than weekly. In the case of wages,
salary, or other income paid to an individual on the basis of an
established calendar period regularly used by the employer or other
person levied upon for payroll or payment purposes, the exempt amount
of wages, salary, and other income payable to or received by an
individual during an applicable pay period other than weekly equals--
(i) The sum of--
(A) The standard deduction (including additional standard
deductions on account of age or blindness); and
(B) The aggregate amount of the deductions for personal exemptions
allowed the taxpayer under section 151 in the taxable year in which
such levy occurs;
(ii) Divided by--
(A) 260 in the case of a daily pay period;
(B) 26 in the case of a bi-weekly pay period;
(C) 24 in the case of a semi-monthly pay period; and
(D) 12 in the case of a monthly pay period.
(3) Nonspecific pay periods. In the case of wages, salary, or other
income paid to an individual on a one-time or a recurrent but irregular
basis and which is not paid on the basis of an established calendar
period regularly used by the employer or other person levied upon for
payroll or payment purposes, the exempt amount of wages, salary, and
other income payable to or received by an individual equals the exempt
amount defined in paragraph (b) of this section multiplied by the
number (but not more than 52) of full weeks (consisting of seven
calendar days) to which such payment is attributable. The provisions of
this paragraph (d)(3) may be illustrated by the following example:
Example. Taxpayer A's exempt amount per week (as determined
under paragraph (b) of this section) is $100. Taxpayer A is hired by
Corporation X to perform a specific task for Corporation X at a flat
fee of $1,500 which is to be paid at the completion of the task.
Taxpayer A completes the task in 10 weeks. The total exempt amount
is $1,000 and $500 is subject to levy.
(e) Levies continuing into following years. The exempt amount is
computed on the basis of the standard deduction (including additional
standard deductions on account of age or blindness) for the taxpayer's
filing status and the amount of the deduction for a personal exemption
in effect in the taxable year in which the original notice of levy is
served. Unless the taxpayer submits a new verified statement in
accordance with Sec. 301.6334-4, the exempt amount remains the same for
pay periods following the pay period in which the notice of levy is
served even if there is a change in the taxpayer's factual situation or
a change by operation of law (such as by indexing or otherwise) to the
standard deduction or personal exemption amounts.
(f) Effective date. These provisions are effective with respect to
levies made on or after July 1, 1989. However, any reasonable attempt
by a taxpayer to comply with the statutory amendments addressed by
these regulations prior to February 21, 1995 will be considered as
meeting the requirements of these regulations.
Sec. 301.6334-4 Verified statements.
(a) In general. For purposes of Secs. 301.6334-2 and 301.6334-3,
the amount of wages, salary, or other income that is exempt from levy
must be determined on the basis of a written and properly verified
statement submitted by the taxpayer to his or her employer for
submission to the district director specifying the facts necessary to
determine the standard deduction and the aggregate amount of the
deductions for personal exemptions allowed the taxpayer under section
151 in the taxable year in which the levy is served. In the absence of
submission of such statement, the amount that is exempt from levy must
be determined as if the taxpayer were a married individual filing a
separate return with only 1 personal exemption.
(b) Content of statement. The statement in paragraph (a) of this
section must be a written statement signed under penalty of perjury,
and dated, containing the following information--
(1) The filing status of the taxpayer as either:
(i) Single;
(ii) Married filing a joint return;
(iii) Married filing a separate return;
(iv) Head of household; or
(v) Qualifying widow or widower with dependent child;
(2) The name, relationship, and Social Security Number of each
individual whom the taxpayer can claim as a personal exemption on the
taxpayer's income tax return; and
(3) Any additional standard deductions that the taxpayer can claim
on account of age (65 or older) or blindness on the taxpayer's income
tax return.
(c) Submission of verified statement--(1) Obligation of employer.
An employer upon whom a notice of levy for wages, salary, or other
income of a taxpayer is served must promptly notify the taxpayer of the
fact that a notice of levy has been served. Unless otherwise indicated
on the face of the notice of levy, the employer must request the
taxpayer to provide the employer with a written statement signed under
penalty of perjury, and dated, containing the information set forth in
paragraph (b) of this section, and this statement must be submitted by
the employer to the district director. The employer must submit this
statement to the district director at the time the employer first
responds to the notice of levy.
(2) Submission by taxpayer. The taxpayer must provide the employer
upon whom the notice of levy has been served with a verified statement
complying with paragraph (b) of this section. Unless the taxpayer
provides a verified statement, the amount that is exempt from levy must
be determined as if the taxpayer were a married individual filing a
separate return with only 1 personal exemption.
(3) Additional statements. A taxpayer may submit a verified
statement to his or her employer at any time. Except as otherwise
provided in paragraph (d) of this section, such verified statement will
be effective for any payment of wages, salary, or other income made
after the date of submission and will replace any previously submitted
verified statement. The employer must provide the district director
with the statement on the next occasion on which the employer responds
to the notice of levy.
(d) Effect of verified statement--(1) A verified statement
submitted by an employee is effective upon receipt by the employer, and
the employer is required to compute the exempt amount on the basis of
the information contained in the verified statement unless notified to
the contrary by the Internal Revenue Service.
(2) The Internal Revenue Service may find that a verified statement
submitted by an employee contains a materially incorrect statement, or
it may determine, after written request to the employee for
verification of information contained in the verified statement, that
it lacks sufficient information to determine whether the verified
statement is correct. If the Internal Revenue Service so finds or
determines, and notifies the employer in writing that the verified
statement is defective, upon receipt of such notice the employer shall
consider the verified statement to be defective for purposes of
computing the exempt amount.
(3) If the Internal Revenue Service notifies the employer that the
verified statement is defective, the Internal Revenue Service will,
based upon its finding, advise the employer that the employer is to
compute the exempt amount as if no verified statement had been
submitted by the employee or will describe upon what basis the exempt
amount is to be computed. The Internal Revenue Service will also
specify which Internal Revenue Service office to contact for further
information.
(4) In addition to any notice furnished to the employer for the
employer's use, the Internal Revenue Service will provide the employer
with a copy for the employee of each notice it furnishes the employer.
(5) The employer must promptly furnish the employee with a copy of
any Internal Revenue Service notice with respect to a verified
statement submitted by the employee.
(6) Once paragraph (d)(3) of this section applies, the employer
must continue to compute the exempt amount on the basis of the written
notice from the Internal Revenue Service until the Internal Revenue
Service by written notice advises the employer to compute the exempt
amount on the basis of a new verified statement (as described in
paragraph (d)(7) of this section) and revokes its earlier written
notice.
(7) Once paragraph (d)(3) of this section applies, the employee may
submit a new verified statement together with a written explanation of
any circumstances of the employee which have changed since the Internal
Revenue Service's earlier written notice, or any other circumstances or
reasons as justification or support for the claims made by the employee
on the new verified statement. The employee may submit the new verified
statement and written explanation either--
(i) To the Internal Revenue Service office specified in the notice
furnished to the employer under paragraph (d)(3) of this section; or
(ii) To the employer, who must forward the new verified statement
and written explanation to the Internal Revenue Service office
specified in the notice earlier furnished to the employer on the next
occasion on which the employer responds to the notice of levy.
(e) Effective date. These provisions are effective with respect to
levies made on or after July 1, 1989. However, any reasonable attempt
by a taxpayer to comply with the statutory amendments addressed by
these regulations prior to February 21, 1995 will be considered as
meeting the requirements of these regulations.
Secs. 301.6334-5, 301.6334-6 and 301.6334-7 [Removed]
Par. 4. Sections 301.6334-5 through 301.6334-7 are removed.
Approved: October 4, 1994.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Leslie Samuels,
Assistant Secretary of the Treasury.
[FR Doc. 94-26073 Filed 10-20-94; 8:45 am]
BILLING CODE 4830-01-U
