NeNe
Leakes was in the news (on my facebook trending news feed at least) recently
over an IRS tax lien of $824,366.01.
Who
is NeNe Leakes? She was the Rocky Rhoades character on the brilliant NBC sitcom
The New Normal, which was canceled well before its time. She was the production
assistant and producer for Bryan in the show on the show he worked on; and she
had some of the funniest lines in the show. That is the easy question. Now let’s
talk about tax liens.
The
Internal Revenue Manual words it interestingly as they describe it this way:
The law generally defines a
lien as a charge or encumbrance that one person has on the property of another
as security for a debt or obligation. Essentially, this concept can be reduced
to a simple metaphor — i.e., a special "sticker" similar to what a
moving company puts on the furniture, boxes, and other contents of a house when
it takes the owner’s property from one place to another. The lien (or
"sticker" ) does not change the ownership or other qualities of the
property to which it is affixed; it merely identifies the property as having
some kind of claim against it. IRM
5.17.2.2.
But
keeps it more buttoned down describing how it arises:
The federal tax lien arises
when any "person" liable to pay any federal tax fails to pay the tax
after a demand by the Government for payment. IRC § 6321. For federal tax law
purposes, a "person" is defined to include individuals, trusts,
estates, partnerships, associations, companies, and corporations. IRC §
7701(a)(1). The lien is effective from the date the Government assesses the
tax. Thus, if the taxpayer neglects or refuses to pay the assessed tax, then
the lien is deemed to relate back to the assessment date. IRC § 6322. The
Service is not required to file a NFTL in order for the tax lien to attach. As
discussed later in the text, the Service may file a NFTL in order to have
priority over the taxpayer’s other creditors. IRM 5.17.2.2.1
For
purposes of addressing the basics of a tax lien these are some (not all) of the
important things to know:
It’s
civil, not criminal. There are criminal avenues to pursue if they want but
that’s not this – it’s just money that’s due when there is a lien. At the point
the lien originates that means the taxpayer compliance is pretty low. Your
taxpayer compliance history with the IRS is important because it is your
“permanent record” like when you were in elementary school. Everything is on
that. If you have a low taxpayer compliance history score it means you are on
the IRS radar. This is something you do not want, unless you think audits are
fun.
Also,
a lien is not a levy. A levy is more serious because your stuff goes out the
door (literally or you know, figuratively) to pay your debt. A lien is just a
piece of paper hanging over your head. A levy means the Tax Man blew through
town and took your stuff and sold it.
Form
668(Y)(c) is the important form when we talk about tax liens. The Form is filed
with the county clerk. This is the form that is public record. This is the form
that title companies will find and tell you that you have a problem if you are
involved with title companies for one reason or the other such as selling
property or something else that our new associate Katherine Van Wagner may be
helping you out with over in our Land Department.
These
are the important parts of the Form 668(Y)(c):
Kind
of Tax – what type of return gave rise to the lien. Very often it is a 1040.
Someone got tired of paying personal income tax and well, the IRS didn’t really
like that arrangement. So they fired off a tax lien, and you can imagine they
shouted “Get good!” as they did it because this is the kinder gentler IRS that
is trying to relate to you after acknowledging the public perception issues
they have had in the past, choosing enforcement priorities to shake down
waiters and bartenders for underreporting tips rather than the investment banks
who were doing different stuff with tax consequences during both the Bush and
Obama administrations.
Tax
Year(s) – this matters for statute of limitations, but tells you how many tax
years you are in the doghouse over. If it is an open year there is more that
can be done to address penalties and interest. For closed years there are
sometimes maneuvers a trained tax lawyer can make to “open” up closed years in
the tax controversy process. For instance, I was able to open up 2007 and 2008
recently in one case with a loophole. For open years you might be able to amend
your return if you forgot what deductions and credits were on that year. Or if
you didn’t file a return for that year you can actually file a real one
prepared by a reputable CPA who can give you much more preferential numbers to
deal with than what the IRS uses for you if you do not file a return – what is
called “substitute for return” numbers, which for essentially hypothetical
purposes the IRS theorizes you made the most money possible that is realistic
given other information they have about you from other people (e.g. 1099s,
W-2s, whatever) and that you decided to not take any deductions or credits on
that huge bag of money you made. Obviously, substitute for return numbers are
not favorable so if it’s a nonfiling situation you can reduce your tax lien
amount considerably by just filing a return.
Date
of Assessment – this is important for the clock that gets started from this
day. If you ignore the lien (and are able to ignore the lien, and the IRS will
let you ignore the lien) there will come a time when the lien might no longer
be valid if you wait it.
Last
day to refile – this is when the shot clock runs out on the date of assessment
mentioned above. If you have ignored the lien and the IRS has let you ignore
the lien they need to refile it by this date, or the lien dissolves. These are
not super common but they can happen.
Unpaid
balance of assessment – this is important for a few different reasons. It tells
you how bad things are. Which is good if you can find a way to knock that down
quickly by addressing penalties and interest. But it is also bad since you
probably know that interest will be running so that number will climb higher if
you ignore it.
Payoff
amount – this is a different number than what you find on the IRS transcript.
This comes from the Centralized Lien Operations unit at the IRS.
Release
– this is what you want when you have a tax lien. In a perfect world you pay
off your lien one way or another and the IRS timely processes the release
within 30 days of you dissolving the lien. In an imperfect world the IRS
doesn’t get around to it in 30 days so you then need to take some extra steps
to substantiate payment and other details, then you ask the IRS for a
certificate of release.
This
is a good introduction to the wonderful world of tax liens if you saw NeNe
Leakes in the news recently and you wanted to know a bit more about how this
all works. There is more to know of course if you have a specific interest –
discharge, subordination, withdrawal, installment agreement, fresh start
initiative, and more.
If
you have a tax problem and you think you might need some help in the tax
controversy process you can give us a call and we can see how we can help you
today. Frye, Oaks, Benavidez & O’Neil, PLLC: over 105 years of combined
legal experience now under one roof.
713-227-1717
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