Misleading Taxpayers with Collection Letter

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This is not the first post on the way the IRS collection letters mislead taxpayers.  This is also not the first post on the notice stream of letters sent in collection cases after assessment of tax.  This may be the first post in which I feel like I am writing about a deliberate attempt by the IRS to mislead taxpayers with a form.  I find the statements the IRS has deliberately chosen to make in Notice CP504 false and can only conclude that it has made these statements after giving thought to what it says in the letter because I know these letters receive much scrutiny before the IRS uses them.

Letters in the collection notice stream satisfy statutory requirements and collection goals.  Section 6303 requires the IRS send a notice and demand letter after it makes assessment when insufficient funds exist on the account to satisfy the liability.  The IRS should send this letter within 60 days of assessment; however, its failure to do so impacts the creation of the federal tax lien and not the validity of the assessment.

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The notice stream fulfills two other statutory requirements – those found in IRC 6331(d) and 6330.  The interplay of these two sections creates the basis for the discussion in this post.  Because the IRS has chosen to misrepresent its authority to levy in Notice CP504, examining the role of these sections must precede the discussion of the misrepresentation itself.

Dating back at least the 1860s, Congress gave the IRS, and its predecessors, authority to levy on the assets of taxpayers who failed to pay their federal taxes.  Levy provides the IRS with a powerful administrative tool which, prior to 1998, involved no judicial check on the IRS before the levy occurred.  Before 1998, however, Congress did require that the IRS send taxpayers a notice of intent to levy 30 days before it could begin administratively taking their property.  The code section requiring this notice is IRS 6331(d).  This section provides:

1.     In general. Levy may be made under subsection (a) upon the salary or wages or other property of any person with respect to any unpaid tax only after the Secretary has notified such person in writing of his intention to make such levy.

2.     30-day requirement. The notice required under paragraph (1) shall be –

  1. Given in person
  2. Left at the dwelling or usual place of business of such person, or
  3. Sent by certified or registered mail to such person’s last known address,

No less than 30 days before the day of the levy.

In 1998 Congress decided that IRC 6331(d) provided inadequate protection to taxpayers before the IRS could levy on their property.  To remedy this failing, Congress did not remove section 6331(d) but added section 6330.  Now, the IRS had two notices it must provide to taxpayers before it could levy.  The new notice created in section 6330 not only gives the taxpayer notice of the IRS intent to levy but also gives the taxpayer the right to contest the levy by filing a Collection Due Process (CDP) request before the levy may occur.  Today, it is easy to forget that the section 6331(d) requirement still exists because it receives almost no attention but the statute still requires the IRS to provide this notice as well and the IRS does so.

In 1998, the IRS decided to make the last letter of its notice stream of collection notices, normally the 4th letter, a letter that combined the taxpayer’s notice rights under both 6331(d) and 6330 into the same letter.  It continued this practice for many years though no legal requirement exists that the same letter provide the notice required by both statutes.  Conversely, no statutory requirement causes the IRS to put the notices into separate letters.

At some point in the recent past, the IRS decided that it would split the notice required by 6331(d) and 6330 into two separate letters.  One of the reasons, a major reason, for combining the two notice requirements into one letter was cost.  Each statutorily required notice came with a requirement that the IRS send the notice by certified mail.  The CDP notice requires not only that the IRS mail it certified, but also that the IRS request return receipt.  Combining the two notices allowed the IRS to meet the costly statutory requirement of certified mail with one rather than two mailings.  Because of the number of notices of intent to levy sent each year and the extra cost of sending two letters by certified mail, the IRS could save several million dollars each year simply by combining the two notices.

The IRS has now decided that it will send the taxpayer, as the third notice in the notice stream, a section 6331(d) notice.Here is the notice sent to one of the clients of the Harvard clinic.  The IRS titles the notice “Notice of Intent to Levy.”  In the body of the notice, the IRS says that if the taxpayer does not pay the tax by the date specified in the letter, the IRS may levy on the taxpayer’s property and rights to property including: 1) wages, real estate commissions, and other income; 2) bank accounts; 3) personal assets (e.g., your car and home) and 4) Social Security benefits.  The problem with this notice and with these statements (some might say threats) arises because, at the time the IRS sends this notice, it has not yet provided the taxpayer with the CDP notice.  Without the CDP notice, the IRS cannot levy upon a taxpayer after 1998 and yet, it says to taxpayers in Notice CP504 that it can.  At best, the letter misleads taxpayers about their rights and viewed at worst, the letter contains false statements known by the IRS employees designing this letter as such.

To test the letter and the statements that the IRS could levy as a result of it, the Harvard clinic sent a Form 12153 to the IRS requesting a CDP hearing for a client who had received Notice CP504.  Even though the letter does not mention section 6330, it describes a procedure the IRS can only take after sending a CDP notice.  So, we thought that by sending a CDP request we would see what would happen.  We expected that the IRS would not provide our client with a CDP hearing, but it seemed better to try and find out.  First, we obtained the permission of our client to file the CDP request after explaining to him our reasons for wanting to do so.  In the first case in which we requested a CDP hearing, we eventually received a letter from the IRS saying that the client could not have a CDP hearing because the IRS had not sent a CDP notice.  Before we could petition the Tax Court from that letter, which might be characterized as a notice of decision from which the Tax Court has in certain circumstances granted jurisdiction, the IRS sent another notice of intent to levy citing to section 6330, and we did not want to impair the taxpayer’s ability to use the CDP process, so we filed another CDP request based on the notice which cited to section 6330 and have our case under consideration for an offer in compromise.

Another client received this notice and we sent another CDP request to the IRS.  In the second case, the IRS has neither responded to our request nor sent a notice citing to section 6330.  We will continue, with client permission, to send in requests for CDP hearings whenever our clients receive a notice of intent to levy stating that the IRS can levy upon their property.  We hope one day to uncover the mystery of how the IRS thinks that it can levy in 2016 based on a 6331(d) notice without sending a 6330 notice.  If anyone out there can help us to solve this mystery, we would appreciate your assistance.  For the moment, I remain of the opinion that Form CP504 seeks to purposely mislead taxpayers.  I find the letter offensive.  I believe it violates taxpayer rights.  I think the IRS should immediately stop sending a letter entitled Notice of Intent to Levy containing instructions in the body of the letter about the taking of a taxpayer’s property when the IRS has no authority to do so.

Comments

  1. I’ve had the same problem many a time. I’ve even had to read the exact words “notice of intent to levy” to the rep when she told me that the Service had not sent out a Notice of Intent to Levy. But, as always, some of the CDP requests do get through.

  2. Keith: I have experienced this as well and was baffled. Thank you for bringing light to this issue – as always your information is right on target.

  3. Jerry Borison says:

    Keith – I totally agree with you. One of my clients called totally freaked out by the 504 letter. I had to assure her that there was still a requirement of a letter 1058 or a similar letter before they could levy. I sent her these links but even then she was unsure and scared.

    http://www.backtaxeshelp.com/irs-letters/cp-504.html

    https://www.irs.gov/individuals/collection-due-process-cdp-faqs

  4. John Rogers says:

    Chief Justice Roberts said it best: “Bad things happen if you fail to pay federal income taxes when due.” Personally, I find nothing wrong and misleading as you do. The letter is couched in “may” do this or “may” do that, not we are doing this or we are doing that. And to boot, the letter is written in plain English and is in a very comprehensible format. But more to the point, what’s wrong with a stern letter warning you of consequences if you fail to pay your unpaid liability. Now if the IRS was actually levying off this notice, that’s another story.

    • Bob Kamman says:

      Chief Justice Roberts handed down that sentence in the context of affirming Tax Court exclusive jurisdiction over certain cases where IRS abuse of discretion is claimed. Hinck v. United States, 550 US 501 (2007). The point here is that bad things happen when the IRS Collection cowboys deprive taxpayers of Tax Court jurisdiction by reducing their threats to all hat and no cattle.

      • John Rogers says:

        No bad things have ever happened to any of my clients from a CP504. Nor have any bad things happened to your clients from this letter. Ignoring this letter yes, bad things will happen. As the comments here indicate, there isn’t much luck even getting a CDP hearing off one of these notices. This letter is nothing more than a warning letter. In fact, I don’t find much difference between one of these letters and a 75 mile per hour speed limit sign on the local highway. You don’t pay your taxes, the IRS “may” levy. You drive 80 miles per hour down the freeway, you may get a speeding ticket. And this is not an IRS Collection cowboy letter. It’s a computer-generated notice issued on an annual basis while an account is not currently being worked by a revenue officer. No more, no less. I simply tell my clients that there is nothing to worry about yet, and let’s be proactive about getting you current.

        • Bob Kamman says:

          The “computer-generated notice issued on an annual basis while an account is not currently being worked by a revenue officer” is the CP504B. Those are not the subject of this post, although they are perhaps just as misleading.

  5. E. Martin Davidoff says:

    Keith,

    The CP-504 is one of many misleading letters that the IRS files as we have discussed in the past when talking about the CP-90 being used in lieu of Letter 1058 to advise of the true section 6330 Notice of Intent to Levy. The misleading wording of the CP-504 has been brought to the attention of the IRS by me in National Public Liaison meetings as far back as 15 years ago, although, not as eloquently as you have stated above. Their answer has been to have their notice specialists take a look at it. Little happens and there are no practitioners sitting on the IRS committees revising notices. Accordingly, the IRS view is very narrow and does not consider being fair in its communications with Taxpayers. The CP-504 is a scary notice which, in effect, is a toothless tiger. Its intent is to scare Taxpayers into taking action by insinuating that it is a more threatening notice than it is in reality as you well point out. Thanks!

  6. Howard N. Kaplan says:

    I have also had this problem. In one instance, because of the large sum of money involved, I advised the client to send a Form 12153 request for hearing, which the client agreed to do. The IRS replied that the CDP request was premature.

    I agree in total with your observations.

  7. Russell F. Dunn says:

    Keith,

    Sounds like a Congressional inquiry may be warranted in this circumstance.

    Russell Dunn

  8. Shannon Gass says:

    The most recent CP504 mail outs have been especially confusing to clients still awaiting response from either the OIC or Appeals. Rather inappropriate cause of worry to client and flurry of activity for the representative.

  9. Roger Monahan says:

    “At best, the letter misleads taxpayers about their rights and viewed at worst, the letter contains false statements known by the IRS employees designing this letter as such.”

    Why not mention that a Pub 594 is enclosed with this letter as well as link to the IRS website? The letter and Pub inform the taxpayer of the Service’s “intent to levy” yet goes into great detail explaining the collection process, installment agreements, OIC, and the taxpayer’s right to an appeal.

  10. Sandra Mertens says:

    Thanks for the detailed review. My tax practice has run into the CP504 (and 504B) problems on many occasions since the form was last changed several years ago (I believe it was January 2011). (Note also that, at the beginning, the CP504 didn’t even reference the tax period, just the type of tax and a demand for payment. Talk about poor drafting!) Ever since then, we constantly get calls from clients who freak out when they receive the CP504. It is a shame that our clients have to spend money on tax attorneys just to figure out the IRS’s misleading notices. The IRS should be ashamed of itself for its shady and underhanded collection attempts.

    As others have mentioned, the IRS abuses their rights with the CP504, which does often scare taxpayers into paying the balance due. However, the fact remains that the CP504 is not a “final notice” and does not come with appeal rights. Moreover, the IRS doesn’t even consider the taxpayer “in collections” when they issue the CP504. If you call PPH or ACS after receiving a CP504 you will be told the CP504 means that the taxpayer’s case is “on its way to IRS Collections.” Perhaps a CAP Appeal is appropriate, but I doubt IRS Appeals will have jurisdiction to review a CDP Request filed from a CP504.

    When in doubt, read the notice to see if there are CDP rights, which are notoriously omitted from the CP504. “Final Notices” do include those with form numbers such as LT-11, LT-73, CP90, CP297, CP92, and CP77. The most recent CDP Request I submitted was for a LT-11 for individual income tax liabilities.

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