Paragraph 1. The authority citation for part 301 continues to read,
in part, as follows:
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 301.6343-3 is added to read as follows:
§301.6343-3 Return of property in certain cases.
(a) In general. If money has been levied upon
and applied toward the taxpayer’s liability, or property has been levied
upon and sold, and the receipts have been applied toward the taxpayer’s
liability, or property has been levied upon and purchased by the United States
and the United States still possesses the property, and the Commissioner determines
that any of the conditions in paragraph (c) of this section exist, the Commissioner
may return—
(1) An amount of money equal to the amount of money levied upon;
(2) An amount of money equal to the amount of money received by the
United States from a sale of the property; or
(3) The specific property levied upon and purchased by the United States.
(b) Return of levied upon property in possession of the Internal
Revenue Service (IRS) pending sale under section 6335. Other than
as provided in §301.6343-1(b) or in paragraph (d) of this section, the
Commissioner, in his or her discretion, may return levied upon property
that is in the possession of the United States pending sale under section
6335.
(c) Conditions authorizing the return of property.
The Commissioner may return property upon determining that one of the following
conditions exist:
(1) Premature or not in accordance with administrative procedures.
The levy was premature or otherwise not in accordance with the administrative
procedures of the Secretary.
(2) Installment agreement. Subsequent to the levy,
the taxpayer enters into an agreement under section 6159 to satisfy the liability
for which the levy was made by means of installment payments. If, however,
the agreement specifically provides that already levied upon property will
not be returned under section 6343(d), the Commissioner may not grant a request
for return of property under this paragraph (c)(2).
(3) Facilitate collection. The return of property
will facilitate the collection of the tax liability for which the levy was
made.
(4) Best interests of the United States and the taxpayer—(i) In
general. The taxpayer or the National Taxpayer Advocate (or his
or her delegate) has consented to the return of property, and the return of
property would be in the best interest of the taxpayer, as determined by the
National Taxpayer Advocate (or his or her delegate), and in the best interest
of the United States, as determined by the Commissioner.
(ii) Best interest of the taxpayer. The National
Taxpayer Advocate (or his or her delegate) generally will determine whether
the return of property is in the best interest of the taxpayer. If, however,
a taxpayer requests the Commissioner to return property and has not specifically
requested the National Taxpayer Advocate (or his or her delegate) to determine
the taxpayer’s best interest, a finding by the Commissioner that the
return of property is in the best interest of the taxpayer will be sufficient
to support the return of property. Only the National Taxpayer Advocate (or
his or her delegate) may determine that a return of property is not in the
best interest of the taxpayer.
(5) Examples. The following examples illustrate
the provisions of this paragraph (c):
Example 1. A owes $1,000 in Federal income taxes.
The IRS levies on a broker with respect to a money market account belonging
to the taxpayer and receives payment from the broker which it applies to the
taxpayer’s outstanding 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 making of the levy. The Commissioner
may return an amount of money equal to the amount of money the IRS levied
upon and applied toward the taxpayer’s tax liability.
Example 2. B owes $1,000 in Federal income taxes.
The IRS levies on a bank with respect to a savings account belonging to the
taxpayer and receives funds from the bank, which it applies to the taxpayer’s
liability. Subsequent to the levy, B enters into an installment agreement,
under which B will pay timely installments to satisfy the entire liability.
The installment agreement does not by its terms preclude the return of levied
upon property. The revenue officer verifies that B is financially capable
of paying the entire liability, including accruals, in the agreed-upon installment
payments. The Commissioner may return an amount of money equal to the amount
of money levied upon and applied toward the taxpayer’s liability.
Example 3. C owns a house that is deteriorating
and in unsalable condition. C is in the process of renovating the house for
sale when the IRS levies upon C’s bank account for the payment of a
$20,000 outstanding Federal tax liability and receives funds in the amount
of $3,000, which it applies toward C’s liability. A notice of federal
tax lien is the only lien encumbrancing the house. C requests that an amount
of money equal to the amount seized from the bank account be returned so that
C can complete the renovations on the house. Without the funds, C will be
unable to complete the renovations and sell the house. Upon examination,
the Commissioner determines that the IRS will be able to collect the entire
tax liability if C’s house is restored to salable condition. If the
National Taxpayer Advocate, or the Commissioner in lieu of the National Taxpayer
Advocate, determines that the return of the seized money is in the taxpayer’s
best interest, the Commissioner may return an amount of money equal to the
amount seized from the bank account, in the best interest of the taxpayer
and the United States.
(d) Best Interests of the United States and the taxpayer to
release levy and return of property where levy made in violation of law—(1) In
general. If the IRS makes a levy in violation of the law, it is
in the best interests of the United States and the taxpayer to release the
levy and the IRS will return to the taxpayer any property obtained pursuant
to the levy. For example, the IRS will release the levy and return the taxpayer’s
property if the levy was made—
(i) Without giving the requisite thirty-day notice of the right to a
hearing under section 6330;
(ii) During the pendency of a proceeding for refund of divisible tax
in violation of section 6331(i);
(iii) Before investigation of the status of levied upon property in
violation of section 6331(j);
(iv) During the pendency of an offer-in-compromise in violation of section
6331(k)(1); or
(v) During the period an offer to enter into an installment agreement
is pending (or for 30 days following the rejection of an offer, or, if the
rejection is timely appealed, during the period that the appeal is pending)
or during the period an installment agreement is in effect (or during the
30 days following a termination or, if a timely appeal of termination is filed,
during the period the appeal is pending) in violation of section 6331(k)(2).
(2) Property may not be credited to outstanding liability
without the taxpayer’s permission. When the release of a
levy and the return of property are required under this paragraph (d), the
property or the proceeds from the sale of the property received by the IRS
pursuant to the levy must be returned to the taxpayer unless the taxpayer
requests otherwise. The property or proceeds of sale may not be credited
to any outstanding tax liability of the taxpayer, including the one with respect
to which the IRS made the levy, without the written permission of the taxpayer.
(e) Time of return. Levied upon property in possession
of the IRS (other than money) may be returned under paragraphs (c) and (d)
of this section at any time. An amount of money equal to the amount of money
levied upon or received from a sale of property may be returned at any time
before the expiration of 9 months from the date of the levy. When a request
for the return of money filed in accordance with paragraph (h) of this section
is filed before the expiration of the 9-month period, or a determination to
return an amount of money is made before the expiration of the 9-month period,
the money may be returned within a reasonable period of time after the expiration
of the 9-month period if additional time is necessary for investigation or
processing.
(f) Purchase by the United States. For purposes
of paragraph (a)(2) of this section, if property is declared purchased by
the United States at a sale pursuant to section 6335(e)(1)(C), the United
States will be treated as having received an amount of money equal to the
minimum price determined by the Commissioner before the sale.
(g) Determinations by the Commissioner. The Commissioner
must determine whether any of the conditions authorizing the return of property
exists if a taxpayer submits a request for the return of property in accordance
with paragraph (h) of this section. The Commissioner also may make this
determination independently. If the Commissioner determines that conditions
authorizing the return of property are not present, the Commissioner may not
authorize the return of property. If the Commissioner determines that conditions
authorizing the return of property are present, the Commissioner may (but
is not required to, unless the reason for the return of property is that the
levy was made in violation of law and is governed by paragraph (d) of this
section) authorize the return of property. If the Commissioner decides independently
to return property under paragraph (c)(4) of this section based on the best
interests of the taxpayer and the United States, the taxpayer or the National
Taxpayer Advocate (or his or her delegate) must consent to the return of property.
(h) Procedures for request for the return of property—(1) Manner.
A request for the return of property must be made in writing to the address
on the levy form.
(2) Form. The written request must include the
following information—
(i) The name, current address, and taxpayer identification number of
the person requesting the return of money (or property purchased by the United
States);
(ii) A description of the property levied upon;
(iii) The date of the levy; and
(iv) A statement of the grounds upon which the return of money is being
requested (or property purchased by the United States).
(i) No interest. No interest will be paid on any
money returned under this section.
(j) Administrative collection upon default. If
the Commissioner returns property under this section, and the taxpayer fails
to pay the previously assessed liability for which the levy was made on the
returned property, the Commissioner may administratively collect the liability.
Collection may include levying again on the returned property as long as
statutory and administrative requirements are followed.
(k) Effective date. This section is applicable
on July 14, 2005.
Mark E. Matthews,
Deputy
Commissioner for
Services and Enforcement.
Approved June 30, 2005.
Eric Solomon,
Acting
Deputy Assistant Secretary of the Treasury (Tax Policy).
Note
(Filed by the Office of the Federal Register on July 13, 2005, 8:45
a.m., and published in the issue of the Federal Register for July 14, 2005,
70 F.R. 40669)
