9th Circuit tax case - pension can be levied upon
Posted: Tue Mar 11, 2014 8:29 pm
Is a 522 motion required or is it automatic (if the tax lien was not
properly filed)?
On Mar 11, 2014 6:20 PM, "Peter M. Lively"
wrote:
>
>
> This isn't something new. See Vance L. Wadleigh v. Commissioner, U.S.
> Tax Court, CCH Dec. 58,243, 134 T.C. No. 14, (Jun. 15, 2010) (holding
> that 6321 tax liens continue in effect against taxpayer's pension
> excluded from his chapter 7 bankruptcy estate).
>
> According to Patterson v. Shumate (S Ct 1992) excluding an ERISA qualified
> pension plan is permissive under 541(c)(2).
>
> By including the pension in bankruptcy and exempting, the exempt property
> passes from the estate to the debtor free and clear of the unrecorded tax
> lien pursuant to 522(c)(2)(B).
>
> The exemption expressly refers to tax liens and doesn't work if the
> lien was a properly recorded (properly filed) notice of tax lien. The lien
> would only ride through the bankruptcy if it was a properly filed.
>
>
> Peter M. Lively, J.D., M.B.A.
> Law Office of Peter M. Lively * Personal Financial Law Center I
> 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647
> Telephone: (310) 391-2400 * Toll Free: (800) 307-3328 * Fax: (310)
> 391-2462
>
>
> On Tuesday, March 11, 2014 3:20 PM, Stella Havkin havkinlaw@earthlink.net> wrote:
>
> I am just asking. I have not seen it but I believe you.
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] *On Behalf
> Of *Steven B. Lever
> *Sent:* Tuesday, March 11, 2014 3:02 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* RE: [cdcbaa] 9th Circuit tax case - pension can be levied upon
> post-discharge
>
>
> All along. I've seen it happen. Ask Neil Kakuske (sp?) at the IRS if you
> doubt it.
>
> Steven B. Lever
>
>
>
> *From:* cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com]
> *On Behalf Of *Havkin Stella
> *Sent:* Tuesday, March 11, 2014 3:10 PM
> *To:* cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
> post-discharge
>
>
> Has the IRS been doing it all along or is this a new tactic ?
>
> -----Original Message-----
> Sent: Mar 11, 2014 2:58 PM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
> post-discharge
>
> That was my point. The exemption is irrelevant as to the IRS. The lien
> would allow the IRS to go after the pension regardless of whether the
> pension is an asset of the estate or not.
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
> In a message dated 3/11/2014 2:46:50 P.M. Pacific Daylight Time,
> sblever@leverlaw.com writes:
>
>
>
>
>
> The IRS as a United States agency does not have to give credence to state
> law exemptions. IRS can always go after IRAs and pensions for
> nondischargeable debts or enforcement of tax liens.
> Steven B. Lever
>
>
> jesseelaw@aol.com
> Sent: Tuesday, March 11, 2014 11:35 AM
> To: cdcbaa@yahoogroups.com
> Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
> post-discharge
>
>
>
>
>
> Yes, but even if unambiguously exempted would not the net result be the
> same as the IRS holds a statutory lien? If the pension was part of the
> Chapter 7 estate, the exemption on Schedule C would not apply to the IRS
> statutory lien. If the pension is subject to IRS levy and it was
> affirmatively
> included by the debtor (assuming the debtor can elect to make it so) as an
> asset of the bankruptcy estate would that waive the ERISA protection as to
> the Chapter 7 Trustee to administer it as an asset? Regardless, if the
> pension was not administered in the bankruptcy estate, the lien would
> still
> ride through the bankruptcy and the IRS could still pursue the lien.
>
>
>
> Mark T. Jessee
> Law Offices of Mark T. Jessee
> "A Debt Relief Agency"
> 50 W. Hillcrest Drive, Suite 200
> Thousand Oaks, CA 91360
> (805) 497-5868 (805) 497-5864 (Facsimile)
>
>
>
>
> In a message dated 3/11/2014 9:54:09 A.M. Pacific Daylight Time,
> _havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net)
> writes:
>
>
>
> It sounds like the 9th circuit thought that might have worked.
>
>
ogroups.com>)
>
> _[mailto:cdcbaa@yahoogroups.com]_ (mailto:[mailto:cdcbaa@yahoogroups.com])
> On Behalf
> Of Kirk Brennan
> Sent: Tuesday, March 11, 2014 9:44 AM
> To: Cdcbaa Yahoo Listserv
> Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon
> post-discharge
>
>
>
>
> Do you think the result would have been different if the pension had been
> unequi vocally exempted on the Schedule C?
>
> On Mar 11, 2014 8:58 AM, (mailto:havkinlaw@earthlink.net)
> >
> wrote:
>
>
>
>
> [_Attachment(s)_ (mip://0cac8ba0/default.html#144b1ddfa6d023d3_TopText)
> from _havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net)
> included
> below]
>
> The 9th Circuit ruled that IRS could levy after discharge on a pension
> that was excluded under Patterson v. Shumate in the Debtor's bankruptcy
> schedules, rather than exempted. See attached.
> Stella Havkin
>
>
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>
>
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Is a 522 motion required or is it automatic (if the tax lien was not properly filed)?
On Mar 11, 2014 6:20 PM, "Peter M. Lively" <petermlively2000@yahoo.com> wrote:
This isn't something new. SeeVance L. Wadleigh v. Commissioner, U.S. Tax Court, CCH Dec. 58,243, 134 T.C. No. 14, (Jun. 15, 2010) (holding that6321 tax liens continue in effect against taxpayer's pension excluded from his chapter 7 bankruptcy estate).
According to Patterson v. Shumate (S Ct 1992) excluding an ERISA qualified pension plan is permissive under 541(c)(2). By including the pensionin bankruptcy and exempting, the exempt property passes from the estateto the debtor free and clear of the unrecorded tax lien pursuant to 522(c)(2)(B).
The exemption expressly refers totax liens and doesn't work if
the lienwas a properly recorded (properly filed) notice oftax lien. The lien would only ride through the bankruptcy if it was afont face"Courier New, courier, monaco, monospace, sans-serif">Peter M. Lively, J.D., M.B.A.
Law Office of Peter M. Lively * Personal Financial Law Center I 11268 Washington Boulevard, Suite 203, Culver City, California 90230-4647 Telephone: (310) 391-2400* Toll Free: (800) 307-3328 * Fax: (310) 391-2462
On Tuesday, March 11, 2014 3:20 PM, Stella Havkin <havkinlaw@earthlink.net> wrote:
I am just asking. I have not seen it but I believe you.
From: cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of Steven B. Lever
Sent: Tuesday, March 11, 2014 3:02 PMTo: cdcbaa@yahoogroups.comSubject: RE: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
All along. Ive seen it happen. Ask Neil Kakuske (sp?) at the IRS if you doubt it.
Steven B. Lever jesseelaw@aol.com
Sent: Mar 11, 2014 2:58 PM To: cdcbaa@yahoogroups.com Subject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-discharge
That was my point. The exemption is irrelevant as to the IRS. The lien would allow the IRS to go after the pension regardless of whether the pension is an asset of the estate or not. Mark T. Jessee
Law Offices of Mark T. Jessee"A Debt Relief Agency"50 W. Hillcrest Drive, Suite 200Thousand Oaks, CA
91360(805) 497-5868 In a message dated 3/11/2014 2:46:50 P.M. Pacific Daylight Time,
sblever@leverlaw.com writes:The IRS as a United States agency does not have to give credence to state law exemptions. IRS can always go after IRAs and pensions for
nondischargeable debts or enforcement of tax liens. Steven B. Lever cdcbaa@yahoogroups.com [mailto:cdcbaa@yahoogroups.com] On Behalf Of
jesseelaw@aol.comSent: Tuesday, March 11, 2014 11:35 AMTo: mailto:[mailto:cdcbaa@yahoogroups.com]) On Behalf
Of Kirk BrennanSent: Tuesday, March 11, 2014 9:44 AMTo: Cdcbaa Yahoo ListservSubject: Re: [cdcbaa] 9th Circuit tax case - pension can be levied upon post-dischargeDo you think the result would have been different if the pension had been
unequi vocally exempted on the Schedule C? On Mar 11, 2014 8:58 AM, <_havkinlaw@earthlink.net_
(mailto:havkinlaw@earthlink.net) > wrote: [_Attachment(s)_ (mip://0cac8ba0/default.html#144b1ddfa6d023d3_TopText) from _havkinlaw@earthlink.net_ (mailto:havkinlaw@earthlink.net) included
below] The 9th Circuit ruled that IRS could levy after discharge on a pension that was excluded under Patterson v. Shumate in the Debtor's bankruptcy schedules, rather than exempted. See attached.
Stella Havkin
The post was migrated from Yahoo.