New Format of Notice of Intent to Levy Fails to Provide Sufficient Notice

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Today we welcome back guest blogger E. Martin Davidoff. Last month Marty’s post addressed the offer in compromise Form 656.  Today, he examines the notice of intent to levy form.  The way the IRS writes its forms can have a significant impact on the outcome achieved.  I wrote last fall about changes to the letters in the collection notice stream where the letters sought to bring in revenue.  Early in the life of the blog I wrote about the disconnect between the form used for the collection information statement for offers in compromise (Form 433-A(OIC)) and the Fresh Start provisions that had been adopted about 15 months earlier.  The quality of a form can make a huge different in the outcome of the matter for which the form, or form letter, is created. 

 A well written dunning notice can bring in a lot more money than a poorly written one.  Shortly after RRA 98 I drafted the first notice of intent to levy that sought to combine in one letter the statutory requirements of 6331, the basis for the traditional notice of intent to levy prior to that time, and the new requirements of the 6330 brought about by the advent of collection due process.  I remember the IRS executive overseeing the project impress upon me the importance of the way the letter was written because of its revenue impact.  The letter can also impact how many people exercise their CDP rights.  Marty questions whether the notice of intent to levy letter provides enough notice to those who may want to pursue their CDP rights.  Keith 

Section 6330 provides that “No levy may be made…unless the Secretary has notified such person in writing of their right to a hearing under this section before such levy is made.” 

            Until recently, such notice was usually accomplished by sending Letter 1058.  On LT 1058, one’s right to a hearing and the urgency of the notice was made very clear.  The first two lines of the notice read, in all caps and larger font:

FINAL NOTICE

NOTICE OF INTENT TO LEVY AND NOTICE OF YOUR RIGHT TO A HEARING

PLEASE RESPOND IMMEDIATELY

Lately, however, the IRS has been moving towards LT11 Sample.  The change is shocking.  Although the notice makes it clear that there is an intent to levy along the following lines:

Notice of intent to levy

Intent to seize your property or rights to property

Amount due immediately:  $XX,XXX.XX

the right to a hearing is not disclosed until the middle of the second page, where in a much smaller font, the IRS states:

Right to request a Collection Due Process hearing

A paragraph explaining the process follows in the normal small font.

The question should come into play is the revised notice, the LT-11 sufficient notice under the Internal Revenue Code?  I suspect it is as many required notices are often buried in publications addressing a myriad of rights.  However, the change in the design of the notice appears clear to me that the IRS is intentionally downplaying Taxpayer’s right to a hearing.  And, I, even as a seasoned tax professional did not at first realize that the LT-11 was the new Letter 1058 until pointed out by my para-legal who is paid to review all the notices with a fine-toothed comb.

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It is clear that the IRS now views the form LT11 as a substitute for the Letter 1058 as both are listed as essentially the same notice on the FAQ section of the IRS website:  https://www.irs.gov/Individuals/LT-11-(Letter-1058)-Frequently-Asked-Questions-(FAQs) .  Interestingly, the FAQs for the LT11 (Letter 1058) does not mention at all the right to a Collection Due Process (“CDP”) hearing.  It merely states “you have the right to appeal” and provides no specific timeline for such appeal.  There is also a separate write-up on Understanding your LT11 Notice: https://www.irs.gov/Individuals/Understanding-your-LT11-Notice which does clearly mention that one may wish to appeal the proposed levy action.

Section 6330 provides what the notice must contain and how it is to be delivered.  However, it does not state the manner in which the information must be displayed within the notice.  And, although the notice is technically legal, I believe it is immoral.  It also appears to violate four of the recently adopted Taxpayer Bill of Rights, at least in spirit.

The Right to be Informed provides that taxpayers “are entitled to clear explanations of the law and IRS procedures in all tax forms, instructions, publications, notices and correspondence”.  In my mind, burying one’s right to a hearing on the 2nd page of a notice is not “clear”.

The Right to Quality Service provides that taxpayers should “receive clear and understandable communications from the IRS”.  I submit that the new design of form LT11 is not clear as to what a taxpayer must do to protect his or her rights.  The second page of the LT11 may never be read as the Taxpayer is likely to panic from the threats made on the first page.

Similar analyses can be made to The Right to Challenge the IRS’s Position and Be Heard and the Right to Appeal an IRS Decision in an Independent Forum.

The Letter 1058 has changed over the years.  For example, the 2002 version had a section entitled WHAT YOU SHOULD DO.   That section of the 2002 Letter 1058 made it clear that there were multiple responses that could be made within 30 days to prevent a levy, and the Appeal through the Collection Due Process hearing was one of those possible responses.  The Letter 1058 of 2002 did this by stating that the levy may happen “Unless you take one of these actions:” and then went on to list alternatives including the CDP process.   The Letter 1058 that I observed being used in 2015 has a revision date of October, 2008.  And even though it does clearly list the option of the CDP hearing on page 1, it does not make it clear on page 1 of the notice that such request alone, without either paying or entering into a payment arrangement (the other alternatives), will prevent the levy action.   However, such is made clear on page 2 under the section What We Are Going To Do.  The LT-11 sets forth one’s right to the CDP hearing on page 2 of the notice and has no information whatsoever regarding appeal rights on page 1.

It should be noted that the 2002 version of the Letter 1058 included the following language:

“Even if you request a hearing, please note that we can still file a Notice of Federal Tax Lien at any time to protect the government’s interest.” 

This had been a very helpful disclosure that is not currently contained in either the 2008 version of the Letter 1058 being used currently nor is such disclosure being made in the LT-11.   Many taxpayers have the misconception that their filing of an appeal to a Notice of Intent to Levy enables them to have a hearing prior to a Lien Filing.   That is why the 2002 language of the Letter 1058 on liens was so helpful and should be reinstated.

Call to Action:

When a form misses the mark it provides an opportunity to call on the IRS to eliminate or revise it.  Perhaps the form LT-11 provides such an opportunity.  The appropriate notice of one’s right to a hearing as prominently displayed as the Letter 1058 is an important notice that implicates taxpayer rights and the responsibility of the IRS to inform them of those rights.

 

Comments

  1. The next saucy disgruntled taxpayer with a pension for fighting that happens to cross my path with an LT-11 from the IRS will be getting a copy of this post. I’d fully agree with everything here and want to see the LT-11 challenged in TC.

  2. Rachael Rubenstein says:

    Thank you for addressing this topic!

  3. Barry Goldwater says:

    My uncle received a pension for fighting when he retired from the Ring. He never reported it on his tax return. He received an LT-11 without first receiving a Notice of Deficiency.
    He has a penchant for fighting and is going to challenge the underlying liability on his pension for fighting.

    I wish him well.

    AUH2O

  4. I noticed the same thing last year when I received what I believed to be a normal pre-CDP collection notice. My client was concerned because it had arrived by certified mail, and when I reviewed it more carefully I was surprised to read the small CDP language on page two of the notice. I called ACS and informed the representative that I hadn’t seen such a notice before, and that for what it was worth I believed it was inappropriate because it did not adequately notify taxpayers or representatives of CDP rights. I’m sure someone will miss a deadline for this very reason and then file a petition following what the IRS would consider to be an equivalent hearing, at which point this will have to be addressed in the Tax Court on a jurisdictional motion.

  5. Has Mr. Davidoff, or anyone else, confirmed that the IRS no longer uses Letter 1058?

    I’ve always known Revenue Officers to use the Letter 1058, whereas ACS (as in Mr. Davidoff’s client’s case) would use the LT-11. Perhaps the redesigned LT-11 is only an ACS brainstorm.

    Whether the new LT-11 is for ACS use only or is now the Collection standard, the notice appears designed to reduce an already minimal CDP hearing request percentage.

    The new LT-11 likely resulted from the Appeals Judicial Approach and Culture (AJAC) program. The IRS designed the AJAC program to make its Office of Appeals “more judicial.” Translation: make it more difficult for one to exercise a statutory right.

  6. E Martin Davidoff says:

    Jason,

    I am still seeing Letter 1058 in use parallel to the LT-11. And, Jason, you hit the nail on the head. It truly appears that this is an intentional redesign to minimize CDP hearing requests. Having faith in the good intentions of our government, I truly hope it is not.

    Too all others who have commented: Thanks for your interest in this topic.

    Marty

  7. Thank you! We have been discussing the LT-11 in my office and believe it constitutes inadequate notice.

  8. This is scary. I cannot for the life of me understand why IRS upper management thinks this is a good idea. I always figured that the front line ROs were the ones who would viewed the collection process is an “us vs. them” fight. I took comfort in knowing (or at least assuming) that those higher up the food chain were fair minded people who understood that IRS’ role is to implement the laws established by Congress and to deal with the citizens in good faith. It is scary to think that IRS senior management would intentionally subvert Congress’ laws designed to protect American liberties, laws which grow out of numerous reports of IRS over-reaching. You would have thought IRS would have learned a lesson. Bring on the next Taxpayer Protection Act!

  9. Shannon Gass EA says:

    Just last week, I was explaining to a tax attorney how this letter had quietly come about sometime last year, and it was pretty clear (to me) that it was intended to DRASTICALLY REDUCE the number of CDP requests.

    I have been in private practice for 15 years, focusing on taxpayer representation. Apart from complaining to TIGTA, there has been (in my experience) *no* organisations able or willing to advocate for changes in IRS collection policies and procedures.

    However, I am now ED of a new nonprofit that DOES include ADVOCACY of taxpayer rights and due process, and is *very* interested in compiling our experiences into recommendations for effective changes in policies and procedures.

    Silly stuff like this needs to be addressed as a collective voice of practitioners, wouldn’t ya agree?

    • E Martin Davidoff says:

      I fully agree Shannon. I would love to work with your nonprofit. I hope you will reach out to me.

      Marty

    • I just received the letter from IRS, LT11. The wording are exactly same as it is described in this blog: ”Notice of intent to levy”, there is no ‘final notice’ or any urgency in the first page. I was suspicious of content of this letter after receiving similar kind of letter CDP hearing option so before I put away. googled extensively and stumbled this site. I’ve been calling IRS but no progress and now I am at the end of the rope to let it all go. Same time I am wondering why IRS doesn’t help taxpayers willing to pay even a small amount within their mean like myself having a temporal financial problem?? I wish some organizations like yours to tell IRS what they are doing is if not illegal, it’s unethical.

  10. Even more disturbing is that the letter says the IRS can seize your car or home. But I thought that to seize a home the IRS had to get a court order. I have never seen the IRS seize a car in the last 20 years. Does chief counsel review these letters?

  11. Keith Hackenberg says:

    Great Post! I was recently retained to represent a client with this very issue. Having reviewed the letter, it is amazing how “casually” they mention the CDP hearing. They focus on the appeal and then bury it in there as an “oh by the way you can stop/delay the levy process by requesting this hearing”. The agent submitting the letter to my client from the local office did at least have the “decency” to include all of the publications explaining the rights, but all that truly did was provide more confusion to my client (a small business owner).

    I’ve been doing this for seven years (I know that is child’s play to some other responses here) but I still had to go through it several times myself. I can’t even imagine what an unrepresented individual without a background in this would deal with.

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