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A tax lien is a lien which is imposed upon a property by law in order to secure the payment of taxes. A tax lien may be imposed for the purpose of collecting delinquent taxes which are owed on real property or personal property, or it may be imposed as a result of a failure to pay income taxes or it may be imposed as a result of a failure to pay other taxes.
In the United States, a federal tax lien may arise in relation to any kind of federal tax, including but not limited to income tax, gift tax, or estate tax.
Internal Revenue Code section 6321 provides:
Internal Revenue Code section 6322 provides:
The term "assessment" refers to the statutory assessment made by the Internal Revenue Service (IRS) under 26 U.S.C. § 6201 (that is, the formal recording of the tax in the official books and records at the office of the Secretary of the U.S. Department of the Treasury [3] ). Generally, the "person liable to pay any tax" described in section 6321 must pay the tax within ten days of the written notice and demand. [4] If the taxpayer fails to pay the tax within the ten-day period, the tax lien arises automatically (i.e., by operation of law), and is effective retroactively to (i.e., arises at) the date of the assessment, even though the ten-day period necessarily expires after the assessment date.
Under the doctrine of Glass City Bank v. United States , [5] the tax lien applies not only to property and rights to property owned by the taxpayer at the time of the assessment but also to after-acquired property (i.e., to any property owned by the taxpayer during the life of the lien).
The statute of limitations under which a federal tax lien may become "unenforceable because of lapse of time" is found at 26 U.S.C. § 6502. For taxes assessed on or after November 6, 1990, the lien generally becomes unenforceable ten years after the date of assessment. For taxes assessed on or before November 5, 1990, a prior version of section 6502 provides for a limitation period of six years after the date of assessment. Various exceptions may extend the time periods.
A federal tax lien arising by law as described above is valid against the taxpayer without any further action by the government.
The general rule is that where two or more creditors have competing liens against the same property, the creditor whose lien was perfected at the earlier time takes priority over the creditor whose lien was perfected at a later time (there are exceptions to this rule). Thus, if the government (which is treated as a "creditor" with respect to unpaid taxes) properly files a Notice of Federal Tax Lien (NFTL) before another creditor can perfect its own lien, the tax lien will often take priority over the other lien.
To "perfect" the tax lien (to create a priority right) against persons other than the taxpayer (such as competing creditors), the government generally must file the NFTL [6] in the records of the county or state where the property is located, with the rules varying from state to state. At the time the notice is filed, public notice is deemed to have been given to the third parties (especially the taxpayer's other creditors, etc.) that the Internal Revenue Service has a claim against all property owned by the taxpayer as of the assessment date (which is generally prior to the date the NFTL is filed), and to all property acquired by the taxpayer after the assessment date (as noted above, the lien attaches to all of a taxpayer's property such as homes, land and vehicles and to all of a taxpayer's rights to property such as promissory notes or accounts receivable). Although the federal tax lien is effective against the taxpayer on the assessment date, the priority right against third party creditors arises at a later time: the date the NFTL is filed. The form and content of the notice of federal tax lien is governed only by federal law, regardless of any requirements of state or local law. [7]
In certain cases, the lien of another creditor (or the interest of an owner) may take priority over a federal tax lien even if the NFTL was filed before the other creditor's lien was perfected (or before the owner's interest was acquired). Some examples include the liens of certain purchasers of securities, liens on certain motor vehicles, and the interest held by a retail purchaser of certain personal property. [9]
Federal law also allows a state—if the state legislature so elects by statute—to enjoy a higher priority than the federal tax lien with respect to certain state tax liens on property where the related tax is based on the value of that property. For example, the lien based on the annual real estate property tax in Texas takes priority over the federal tax lien, even where an NFTL for the federal lien was recorded prior to the time the Texas tax lien arose, [10] and even though no notice of the Texas tax lien is required to be filed or recorded at all.
In order to have the record of a lien released a taxpayer must obtain a Certificate of Release of Federal Tax Lien. [11] Generally, the IRS will not issue a certificate of release of lien until the tax has either been paid in full or the IRS no longer has a legal interest in collecting the tax. The IRS has standardized procedures for lien releases, discharges and subordination. In situations that qualify for the removal of a lien, the IRS will generally remove the lien within 30 days and the taxpayer may receive a copy of the Certificate of Release of Federal Tax Lien. The current form of the Notice of Federal Tax Lien utilized by the IRS contains a provision that provides that the NFTL is released by its own terms at the conclusion of the statute of limitations period described above provided that the NFTL has not been refiled by the date indicated on the form. The effect of this provision is that the NFTL operates as a Certificate of Release of Federal Tax Lien on the day after the date indicated in the form by its own terms.[ citation needed ]
The creation of a tax lien, and the subsequent issuance of a Notice of Federal Tax Lien, should not be confused with the issuance of a Notice of Intent to Levy under 26 U.S.C. § 6331(d), or with the actual act of levy under 26 U.S.C. § 6331(a). The term "levy" in this narrow technical sense denotes an administrative action by the Internal Revenue Service (i.e., without going to court) to seize property to satisfy a tax liability. The levy "includes the power of distraint and seizure by any means. [12] The general rule is that no court permission is required for the IRS to execute a section 6331 levy. [13]
In other words, the federal tax lien is the government's statutory right that encumbers property to secure the ultimate payment of a tax. The notice of levy is an IRS notice that the IRS intends to seize property in the near future. The levy is the actual act of seizure of the property.
In general, a Notice of Intent to Levy must be issued by the IRS at least thirty days prior to the actual levy. Thus, while a Notice of Federal Tax Lien generally is issued after the tax lien arises, a Notice of Intent to Levy (sometimes misleadingly called simply a "notice of levy") generally must be issued before the actual levy is made.
Also, while the federal tax lien applies to all property and rights to property of the taxpayer, the power to levy is subject to certain restrictions. That is, certain property covered by the lien may be exempt from an administrative levy [14] (property covered by the lien that is exempt from administrative levy may, however, be taken by the IRS if the IRS obtains a court judgment).
A detailed discussion of the administrative levy, and the related Notice, is beyond the scope of this article.
In connection with federal taxes in the United States, the term "levy" also has a separate, more general sense of "imposed." That is, when a tax law is enacted by the Congress, the tax is said to be "imposed" or "levied."
A properly submitted offer in compromise does not affect a tax lien, which remains effective until the offer is accepted and the offered amount is fully paid. Once the compromised amount is paid, the taxpayer should request removal of the lien.
In the United States, a tax lien may be placed on a house or any other real property on which property tax is due (such as an empty tract of land, a boat dock, or even a parking place).[ citation needed ]
Each county has varying rules and regulations regarding what tax is due, and when it is due. The related forms may be tax lien certificates or tax deed certificates.
Tax lien certificates are issued immediately upon the failure of the property owner to pay. These forms describe a lien on the property. The liens are generally in first position over every other encumbrance on the property, including liens secured by loans against the property.[ citation needed ]
Tax lien states are Alabama, Arizona, Colorado, Florida, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New York, Ohio, Rhode Island, South Carolina, Vermont, West Virginia, and Wyoming. The District of Columbia is also a tax lien jurisdiction. [15]
Tax deeds are issued after the owner of the property has failed to pay the taxes. Tax deeds are issued in connection with auctions in which the property is sold outright. The starting bid is often only for the back taxes owed, although the situation may vary from one county to another.
Tax deed states are Alaska, Arkansas, California, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Kansas, Maine, Michigan, Missouri, Nevada, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin. "Tax Deed States 2024".
Tax liens and tax deeds can be purchased by an individual investor.
In the case of tax liens, interest can be earned. If the property is redeemed then the investor would recover invested money, plus interest due after the lien was purchased. If the property is not redeemed, the deed holder or lien holder has first position to own the property after any other taxes or fees are due.[ citation needed ]
The United States has separate federal, state, and local governments with taxes imposed at each of these levels. Taxes are levied on income, payroll, property, sales, capital gains, dividends, imports, estates and gifts, as well as various fees. In 2020, taxes collected by federal, state, and local governments amounted to 25.5% of GDP, below the OECD average of 33.5% of GDP.
A lien is a form of security interest granted over an item of property to secure the payment of a debt or performance of some other obligation. The owner of the property, who grants the lien, is referred to as the lienee and the person who has the benefit of the lien is referred to as the lienor or lien holder.
Garnishment is a legal process for collecting a monetary judgment on behalf of a plaintiff from a defendant. Garnishment allows the plaintiff to take the money or property of the debtor from the person or institution that holds that property. A similar legal mechanism called execution allows the seizure of money or property held directly by the debtor.
In the United States, bankruptcy is largely governed by federal law, commonly referred to as the "Bankruptcy Code" ("Code"). The United States Constitution authorizes Congress to enact "uniform Laws on the subject of Bankruptcies throughout the United States". Congress has exercised this authority several times since 1801, including through adoption of the Bankruptcy Reform Act of 1978, as amended, codified in Title 11 of the United States Code and the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA).
The United States Tax Court is a federal trial court of record established by Congress under Article I of the U.S. Constitution, section 8 of which provides that the Congress has the power to "constitute Tribunals inferior to the supreme Court". The Tax Court specializes in adjudicating disputes over federal income tax, generally prior to the time at which formal tax assessments are made by the Internal Revenue Service.
The Modified Accelerated Cost Recovery System (MACRS) is the current tax depreciation system in the United States. Under this system, the capitalized cost (basis) of tangible property is recovered over a specified life by annual deductions for depreciation. The lives are specified broadly in the Internal Revenue Code. The Internal Revenue Service (IRS) publishes detailed tables of lives by classes of assets. The deduction for depreciation is computed under one of two methods (declining balance switching to straight line or straight line) at the election of the taxpayer, with limitations. See IRS Publication 946 for a 120-page guide to MACRS.
The Offer in Compromise (OIC) program, in the United States, is an Internal Revenue Service (IRS) program under 26 U.S.C. § 7122, which allows qualified individuals with an unpaid tax debt to negotiate a settled amount that is less than the total owed to clear the debt. A taxpayer uses the checklist in the Form 656, OIC package to determine if the taxpayer is eligible for the program. The objective of the OIC program is to accept a compromise when acceptance is in the best interests of both the taxpayer and the government, and promotes voluntary compliance with all future payment and filing requirements.
For households and individuals, gross income is the sum of all wages, salaries, profits, interest payments, rents, and other forms of earnings, before any deductions or taxes. It is opposed to net income, defined as the gross income minus taxes and other deductions.
The United States federal government and most state governments impose an income tax. They are determined by applying a tax rate, which may increase as income increases, to taxable income, which is the total income less allowable deductions. Income is broadly defined. Individuals and corporations are directly taxable, and estates and trusts may be taxable on undistributed income. Partnerships are not taxed, but their partners are taxed on their shares of partnership income. Residents and citizens are taxed on worldwide income, while nonresidents are taxed only on income within the jurisdiction. Several types of credits reduce tax, and some types of credits may exceed tax before credits. Most business expenses are deductible. Individuals may deduct certain personal expenses, including home mortgage interest, state taxes, contributions to charity, and some other items. Some deductions are subject to limits, and an Alternative Minimum Tax (AMT) applies at the federal and some state levels.
The Tax Anti-Injunction Act, currently codified at 26 U.S.C. § 7421, is a United States federal law originally enacted in 1867. The statute provides that with 14 specified exceptions, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed".
The Internal Revenue Service Restructuring and Reform Act of 1998, also known as Taxpayer Bill of Rights III, resulted from hearings held by the United States Congress in 1996 and 1997. The Act included numerous amendments to the Internal Revenue Code of 1986. The bill was passed in the Senate unanimously, and was seen as a major reform of the Internal Revenue Service.
Tax protesters in the United States have advanced a number of arguments asserting that the assessment and collection of the federal income tax violates statutes enacted by the United States Congress and signed into law by the President. Such arguments generally claim that certain statutes fail to create a duty to pay taxes, that such statutes do not impose the income tax on wages or other types of income claimed by the tax protesters, or that provisions within a given statute exempt the tax protesters from a duty to pay.
Taxpayers in the United States may face various penalties for failures related to Federal, state, and local tax matters. The Internal Revenue Service (IRS) is primarily responsible for charging these penalties at the Federal level. The IRS can assert only those penalties specified imposed under Federal tax law. State and local rules vary widely, are administered by state and local authorities, and are not discussed herein.
Taxpayers in the United States may have tax consequences when debt is cancelled. This is commonly known as cancellation-of-debt (COD) income. According to the Internal Revenue Code, the discharge of indebtedness must be included in a taxpayer's gross income. There are exceptions to this rule, however, so a careful examination of one's COD income is important to determine any potential tax consequences.
The Foreign Investment in Real Property Tax Act of 1980 (FIRPTA), enacted as Subtitle C of Title XI of the Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, 94 Stat. 2599, 2682, is a United States tax law that imposes income tax on foreign persons disposing of US real property interests. Tax is imposed at regular tax rates for the taxpayer on the amount of gain considered recognized. Purchasers of real property interests are required to withhold tax on payment for the property. Withholding may be reduced from the standard 15% to an amount that will cover the tax liability, upon application in advance of sale to the Internal Revenue Service. FIRPTA overrides most nonrecognition provisions as well as those remaining tax treaties that provide exemption from tax for such gains.
A tax levy under United States federal law is an administrative action by the Internal Revenue Service (IRS) under statutory authority, generally without going to court, to seize property to satisfy a tax liability. The levy "includes the power of distraint and seizure by any means". The general rule is that no court permission is required for the IRS to execute a tax levy.
In the United States, the estate tax is a federal tax on the transfer of the estate of a person who dies. The tax applies to property that is transferred by will or, if the person has no will, according to state laws of intestacy. Other transfers that are subject to the tax can include those made through a trust and the payment of certain life insurance benefits or financial accounts. The estate tax is part of the federal unified gift and estate tax in the United States. The other part of the system, the gift tax, applies to transfers of property during a person's life.
Tax protester arguments are arguments made by people, primarily in the United States, who contend that tax laws are unconstitutional or otherwise invalid.
Tax protesters in the United States advance a number of administrative arguments asserting that the assessment and collection of the federal income tax violates regulations enacted by responsible agencies –primarily the Internal Revenue Service (IRS)– tasked with carrying out the statutes enacted by the United States Congress and signed into law by the President. Such arguments generally include claims that the administrative agency fails to create a duty to pay taxes, or that its operation conflicts with some other law, or that the agency is not authorized by statute to assess or collect income taxes, to seize assets to satisfy tax claims, or to penalize persons who fail to file a return or pay the tax.
Most local governments in the United States impose a property tax, also known as a millage rate, as a principal source of revenue. This tax may be imposed on real estate or personal property. The tax is nearly always computed as the fair market value of the property, multiplied by an assessment ratio, multiplied by a tax rate, and is generally an obligation of the owner of the property. Values are determined by local officials, and may be disputed by property owners. For the taxing authority, one advantage of the property tax over the sales tax or income tax is that the revenue always equals the tax levy, unlike the other types of taxes. The property tax typically produces the required revenue for municipalities' tax levies. One disadvantage to the taxpayer is that the tax liability is fixed, while the taxpayer's income is not.