I'll correct the correction. The IRS may refile a tax lien after the tax
has been discharged, because that action merely maintains the status
quo. In re O'Callaghan, 342 BR 364, and cases cited therein.
- John D. Faucher
818/889-8080
On 10/25/12 11:15 AM, Dennis McGoldrick wrote:
> one correction, irs tax liens expire in 10 years. If the tax was
> discharged, the lien(s) cannot be refiled. If not discharged, it/they
> may be refiled by the IRS in some circumstances.
>
> ------------------------------------------------------------------------
> *From:* Nicholas Gebelt
> *To:* "
cdcbaa@yahoogroups.com"
> *Cc:* "
ngebelt@goodbye2debt.com"
> *Sent:* Monday, October 15, 2012 10:00 PM
> *Subject:* RE: [cdcbaa] Chapter 13 IRS secured tax lien
>
> Dear Sina,
> It is important to distinguish between an /in personam/ tax liability
> against the debtor as a person, and an /in rem/ claim the IRS has
> against a debtor’s retirement. While the tax liability may be
> dischargeable as a personal liability, if the IRS has a prepetition
> lien against the debtor’s retirement plan, the lien still remains
> after the discharge. /See/ the Internal Revenue Manual § 5.11.6.2(15)
> at
http://www.irs.gov/irm/part5/irm_05-011-006.html :
> Retirement accounts that are exempted from the bankruptcy estate are
> still subject to being levied to collect taxes that are discharged in
> bankruptcy, where a Notice of Federal Tax Lien was filed before
> bankruptcy. For retirement accounts that are excluded from the
> bankruptcy estate, the Service may still levy on those accounts to
> collect taxes that are discharged in bankruptcy even when no Notice of
> Federal Tax Lien has been filed. It is only necessary that the
> discharged taxes were assessed, that notice and demand was given, and
> that the statutory lien arose before the bankruptcy was filed.
> To grasp this somewhat counterintuitive concept it may be helpful to
> consider the following analogous situation. Suppose a homeowner
> debtor receives a Chapter 7 discharge, but still retains the home.
> Although the discharge extinguished the /in personam /liability on the
> mortgage debt, the debtor does not get a free house because the /in
> rem /claim against the property, /i.e./, the mortgage lien, still
> remains against the title.
> And IRS tax liens, like diamonds, are forever.
> Good luck,
> Nicholas Gebelt, Ph.D., J.D.
> Board Certified Bankruptcy Specialist
> Description: cid:
image003.jpg@01CC076B.B14D73C0
> Law Offices of Nicholas Gebelt
> 15150 Hornell Street
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> Phone: 562.777.9159
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> Email:
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>
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> *From:*
cdcbaa@yahoogroups.com [mailto:
cdcbaa@yahoogroups.com] *On
> Behalf Of *Jeffrey S. Shinbrot
> *Sent:* Monday, October 15, 2012 8:21 PM
> *To:*
cdcbaa@yahoogroups.com
> *Cc:*
cdcbaa@yahoogroups.com
> *Subject:* Re: [cdcbaa] Chapter 13 IRS secured tax lien
> Can't a retirement plan serve as collateral, as long as the lien
> attaches pre-Petition date?
>
> Sent from my iPad
>
> On Oct 15, 2012, at 6:57 PM, "Sina Maghsoudi" > wrote:
>
> Hi,
> The tax lien is not a priority debt. In other words, it is about 8
> years old. The problem is that the IRS rep. insists that the ERISA
> retirement plan can serve as collateral. It can't because it is
> not part of the bankruptcy estate for the purposes of tax liens.
> If anybody has a sample objection of claim for any claim, I would
> appreciate it. It really doesn't matter what type of claim. I
> just want to make sure I have the basic process and statutes correct.
> Best,
> Sina
> ------------------------------------------------------------------------
> *From:*Giovanni Orantes
> *To:* "
cdcbaa@yahoogroups.com "
>
> *Sent:* Wednesday, October 10, 2012 9:33 PM
> *Subject:* Re: [cdcbaa] Chapter 13 IRS secured tax lien
>
>
> Your analysis seems wrong, Sina. I don't see any fact in your
> fact pattern that would indicate the tax is dischargeable. Did
> you omit some relevant date or fact re tax lien validity?
>
> .
>
>
> --
> Giovanni Orantes, Esq.
> Orantes Law Firm, P.C.
> 3435 Wilshire Blvd. Suite 1980
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> Tel: (213) 389-4362
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>
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