[99-2 USTC ¶50,917] In re Floyd W. Beam, Elaine M. Beam, Debtors. Floyd W. Beam, Elaine M. Beam, Appellants v. Internal Revenue Service, Appellee

(CA-9), U.S. Court of Appeals, 9th Circuit, 98-35576, 10/15/99 , 192 F3d 941, Affirming a District Court decision, 98-1 USTC ¶50,469

[Code Sec. 6301 ]

Liens and levies: Enforcement of lien: Bankruptcy: Levy, property subject to.--Payments made by married debtors into their unconfirmed bankruptcy plan were subject to an IRS levy since the funds were not specifically exempted from levy under Code Sec. 6334 . The provision of the Bankruptcy Code requiring the trustee to return the payments to the debtors did not take precedence over the provisions of the Internal Revenue Code authorizing the IRS , via its broad levy powers, to seize the encumbered funds by any means since it ultimately held superior rights of possession.
[Code Sec. 6331 ]

Liens and levies: Enforcement of lien: Bankruptcy: Notice of levy, sufficiency of: Authority of IRS agent.--The IRS properly served a notice of levy on a bankruptcy trustee since the trustee was in possession of the funds deposited in the bankruptcy plan. Furthermore, the IRS agent who served the notice of levy on the trustee did not act outside the scope of his authority since he had authority to levy under Code Sec. 6301 .

Floyd W. Beam, Elaine Marie Beam, pro per, Springfield , Oregon , for the appellants. Charles F. Marshall, Department of Justice, Washington , D.C. 20530 , for the appellee.

Before: ALDISERT, ^* KLEINFELD and FLETCHER, Circuit Judges. ^**

OPINION

ALDISERT, Circuit Judge:

Appellants Floyd W. Beam and Elaine M. Beam filed a petition for bankruptcy reorganization under Chapter 13 and deposited $24,000 towards a proposed plan with the trustee in bankruptcy. They subsequently filed a motion to withdraw their bankruptcy petition and demanded return of the money they had deposited into their unconfirmed Chapter 13 plan. Upon dismissal of their petition, the Internal Revenue Service served a notice of levy on the trustee in bankruptcy, directing him to distribute the deposited funds directly to the IRS in partial satisfaction of the Beams' federal tax liability. We are to decide whether a Chapter 13 trustee in bankruptcy is required to honor an IRS notice of levy under 26 U.S.C. §6331 on these funds, notwithstanding 11 U.S.C. §1326(a)(2), which instructs the trustee to return the debtor's payments where a debtor's plan is not confirmed. The district court concluded that the IRS 's power to levy is not compromised by the bankruptcy distribution provision. We affirm the judgment of the district court.

The bankruptcy court had subject-matter jurisdiction under 11 U.S.C. §157. The district court had jurisdiction under 28 U.S.C. §158(a). We have jurisdiction under 28 U.S.C. §1291. The appeals were timely filed. Rule 4(a), Federal Rules of Appellate Procedure.

Appellants contend that the district court erred because (1) distribution of the deposited funds directly to the IRS conflicts with the bankruptcy distribution provision in 11 U.S.C. §1326(a)(2); and (2) the IRS levy is invalid, because the IRS impermissibly served a "notice of levy" on the trustee in bankruptcy.

This court reviews the bankruptcy court's interpretation of statutory language de novo. In re Claremont Acquisition Corp., 113 F.3d 1029, 1031 (9th Cir. 1997); In re Maya Constr. Co., 78 F.3d 1395, 1398 (9th Cir. 1996).

I.

In January 1993, the Beams sought relief from their outstanding debts by filing a petition for Chapter 13 bankruptcy in the Bankruptcy Court for the District of Oregon. Over the next four years, the Beams deposited approximately $24,000 towards their proposed Chapter 13 plan with the trustee in bankruptcy.

In April 1993, the IRS filed a proof of claim against the Beams for $137,821.50--the amount of their federal tax liabilities since 1981. In November 1995, after several years of litigation regarding the Beams' tax liability, the IRS filed its final amendment to its proof of claim.

In June 1997, the bankruptcy court denied confirmation of the Beams' Chapter 13 plan, but allowed them to pay all creditors and administrative expenses in full by August 11, 1997 or, alternatively, to file a modified plan providing for full payment, plus interest, of all outstanding debts. Instead of paying their debts or filing a modified plan, the Beams filed a motion to withdraw their bankruptcy petition in August 1997 and demanded the return of the $24,000 which they had deposited into the unconfirmed plan. The bankruptcy court granted Appellants' motion and issued a notice of dismissal on August 21, 1997 . At that time the IRS served a notice of levy on the Chapter 13 trustee, directing him to pay the deposited funds directly to the IRS in partial satisfaction of the Beams' federal tax liability.

In response to the IRS 's notice of levy, the Chapter 13 trustee filed a Motion for Order Directing Disbursement of Funds with the bankruptcy court and requested an emergency hearing to determine whether the Beams were entitled to the funds despite the IRS 's notice of levy. On August 27, 1997 , the bankruptcy court directed distribution to the Beams pursuant to the bankruptcy distribution provision for unconfirmed plans, 11 U.S.C. §1326(a)(2).

The IRS appealed from the bankruptcy court's distribution order. The district court reversed the bankruptcy court's order and directed the trustee to disburse the held funds directly to the IRS . In the district court's view, regardless of which statute controlled the distribution, the IRS ultimately held superior rights to the funds via its broad levy powers.

On May 26, 1998 , the Beams filed a timely notice of appeal to this court and a motion to stay disbursement of the funds pending appeal. On July 2, 1998 , the district court denied the Beams' motion to stay.

II.

The provisions of 26 U.S.C. §6331, when read in conjunction with §6334, authorize the IRS to collect unpaid taxes via a levy on the taxpayer's property, so long as the property is not specifically exempt from levy. In tension with the Internal Revenue statutes, §1326(a)(2) of the Bankruptcy Code mandates, if a plan is not confirmed, the trustee in bankruptcy shall return to the debtors any payment made pursuant to the proposed plan.

The payment distribution clause of section 1326(a)(2) provides:

[If a debtor's] plan is not confirmed, the trustee shall return any such payment to the debtor, after deducting any unpaid claim allowed under section 503(b) of this title.

11 U.S.C. §1326(a)(2).

Section 6334(a) identifies 13 categories of property exempt from an IRS levy. ¹ Section 6334(c) further provides:

Notwithstanding any other law of the United States . . ., no property or rights shall be exempt from levy other than the property specifically made exempt by subsection (a).

26 U.S.C. §6334(c).

Resolution of this statutory conflict directly impacts upon collection and enforcement policies of the IRS regarding unpaid taxes from debtors who have deposited funds into unconfirmed bankruptcy plans. If funds deposited into unconfirmed bankruptcy plans are returned to debtors who are also delinquent taxpayers, then the IRS would be required to pursue additional legal action to collect these outstanding taxes.

We are persuaded that Congress clearly intended to exclude from IRS levy only those 13 categories of property specifically-exempted in section 6334(a). In drafting the levy authority of the Internal Revenue Service, Congress set forth in unambiguous language that "no property or rights shall be exempt from levy other than property specifically made exempt by [§6334](a)." 26 U.S.C. §6334(c). Section 1326(a)(2) of the Bankruptcy Code is not listed among the 13 items exempt from levy under §6334(a).

Moreover, courts have construed the plain language of §6334 literally and have refused to exempt property from IRS levy which is not specifically exempted by the statute. See, e.g., United States v. Mitchell [71-1 USTC ¶9451], 403 U.S. 190, 204-205 (1971) ("[Section 6334(c)] is specific and it is clear and there is no room in it for automatic exemption of property that happens to be exempt from state levy. . . ."); Sea-Land Serv., Inc. v. United States [85-2 USTC ¶9833], 622 F. Supp. 769, 772-773 (D. N.J. 1985) (holding that the IRS could levy on the wages of seamen even though the wages were not subject to attachment under 46 U.S.C. §11109); In re Jones, 206 B.R. 614 (Bankr. D.C. 1997) (allowing the IRS to levy a Chapter 13 debtor's Thrift Savings Plan, even though 5 U.S.C. §8437(e)(2) specifically prohibited such a levy).

Accordingly, we reject Appellants' argument that the specific construct of §1326(a)(2) trumps the general language of §6334(c). While specific statutes normally trump conflicting, general statutes, see Green v. Bock Laundry Mach. Co., 490 U.S. 504, 524 (1989), such an argument ignores the specifically stated intent of Congress to limit the instances where an IRS levy may not attach.

III .

Appellants contend also that the IRS 's service of a notice of levy on the trustee was improper and that the IRS agent exceeded his statutory levying powers under 26 U.S.C. §6301. These arguments also fail. A notice of levy served on a third-party custodian of property is tantamount to a levy under 26 U.S.C. §6331. See, e.g., United States v. Donahue Industries, Inc. [90-2 USTC ¶50,343], 905 F.2d 1325, 1330 (9th Cir. 1990). Furthermore, the IRS agent had authority to levy upon Appellants' property, because the agent's levy power is derived directly from the Treasury Secretary's statutorily prescribed power to collect taxes.

A.

We reject Appellants' contention that the IRS 's "notice of levy," which was served on the Chapter 13 trustee, was invalid. Service of a notice of levy on a third-party is proper, indeed customary, when the third-party is in possession of the debtor's property, or where the third-party is obligated to the debtor. See United States v. National Bank of Commerce [85-2 USTC ¶9482], 472 U.S. 713, 720 (1985). Furthermore, the Treasury Regulations expressly provide that a "[l]evy may be made by serving a notice of levy on any person in possession of, or obligated with respect to, property or rights of property subject to levy." 26 C.F.R. §301.6331-1(a)(1); see also 26 U.S.C. §6332(a) ("[A]ny person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand . . ., surrender such property or rights. . . ."). Because a trustee in bankruptcy represents the bankruptcy estate, see 11 U.S.C. §323, the trustee is therefore obligated to the estate. Accordingly, service of a notice of levy upon the trustee in bankruptcy for any obligations owed by the estate is proper. See United States v. Hemmen [95-1 USTC ¶50,210], 51 F.3d 883, 890 n.6 (9th Cir. 1995).

Here, the IRS served a notice of levy on the Chapter 13 trustee, because the trustee held the deposited funds and was obligated to the Beams as their representative in bankruptcy. Consequently, the IRS properly levied the funds by serving a notice of levy on the trustee.

B.

Appellants contend also that the IRS agent who served the notice of levy on the trustee acted outside the scope of his authority, because 26 U.S.C. §7608 does not provide for the use of levies to secure payment of unpaid taxes. Appellants' reliance on §7608 is misplaced because this provision applies only to criminal enforcement officers performing certain functions relating to undercover operations, subtitle E of the Internal Revenue Code and other laws relating to alcohol, firearms and tobacco. These matters are not implicated here. We conclude, therefore, that the IRS agent had authority to levy pursuant to 26 U.S.C. §6301. See Hughes v. United States [92-1 USTC ¶50,086], 953 F.2d 531, 536 (9th Cir. 1992) (concluding that Secretary's assignment of authority to local IRS employees constituted valid delegation of power).

AFFIRMED.

^* Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for the Third Circuit, sitting by designation.

^** The panel unanimously finds this case suitable for decision without oral argument. Rule 34(a), Federal Rules of Appellate Procedure; 9th Cir. R. 34-4.

¹ The specific exemptions include wearing apparel and school books, fuel, necessary personal expenses up to $6250, books and tools up to $3125, unemployment benefits, undelivered mail, certain annuity and pension payments, workmen's compensation, judgments in support of minor children, minimum exemptions for wages and salary, certain service-connected disability payments, certain public assistance payments, assistance under the Job Training Partnership Act, residences exempt in small deficiency cases and principal residences and certain business assets exempt in absence of certain approval or jeopardy. 26 U.S.C. §6334(a)(1)-(13)

[97-2 USTC ¶50,670] In re Susan Milto, Debtors

U.S. Bankruptcy Court, Dist. Md., at Greenbelt; 96-1-9019-DK, 3/5/97 .

[Code Sec. 6331 ]

Bankruptcy: Automatic stay: Violation of: Illegal levy: Award of actual damages: Sovereign immunity.--A debtor was entitled to recover both her wrongfully levied funds and the actual damages that she incurred as a result of the IRS 's intentional violation of the automatic bankruptcy stay. The IRS had levied on the taxpayer's bank accounts after she filed her bankruptcy petition, but before it received notice of the case. After being provided with notice, the IRS refused to return the levied funds. Despite the IRS 's contention that it was protected by the doctrine of sovereign immunity from damage suits, the taxpayer was allowed to sue for actual damages because sovereign immunity was abrogated for such actions.
ORDER AWARDING DAMAGES AGAINST INTERNAL REVENUE SERVICE

KEIR, Bankruptcy Judge:

Debtor filed a Motion to hold the Internal Revenue Service in Contempt for intentional violation of the automatic stay. The Internal Revenue Service appeared and defended raising two defenses. The first defense raised was that the Internal Revenue Service, as an agency of the United States of America, was protected by the Doctrine of Sovereign Immunity. As discussed by the court on the record at a hearing held on this matter on February 14, 1997 , this case is governed by 11 U.S.C. §106 as amended by the Bankruptcy Reform Act of 1994. In those amendments, Congress abrogated sovereign immunity for the United States of America for certain actions including actions under 11 U.S.C. §362. This abrogation was limited however to actions for actual, as opposed to punitive damages. Debtor conceded at the hearing that debtor was not entitled to proceed against the United States of America, Internal Revenue Service, for punitive damages.

The court finds that the United States of America, acting by legislation enacted by Congress and by the President abrogated sovereign immunity for the purposes of finding liability against the United States of America in actions brought by parties against the United States of America for violations of 11 U.S.C. §362. As explained by the court in its remarks on the record, this action was brought for violation of the stay and hence is governed by 11 U.S.C. §362(h).

The facts are not disputed. After the filing of the bankruptcy case but before the Internal Revenue Service had notice of the case, the Internal Revenue Service served a levy upon a banking institution and by that levy attached three bank accounts of the debtor. Further, the Internal Revenue Service received payment of the account balances by the financial institution through this levy thus depriving the debtor of the use of the funds in these accounts. Although the initial violation of 11 U.S.C. §362(a) was unwitting, what happened next constituted an intentional violation of this statute. Upon learning of the Internal Revenue Service garnishment, debtor's counsel contacted the agent of the Internal Revenue Service whose phone number was inscribed upon the notice of levy to the banking institution. That agent refused to return the funds levied upon post-petition, notwithstanding the clear violation which had occurred.

The court finds that there is no dispute of fact, the Internal Revenue Service having not disputed the facts in its post-hearing memorandum. The facts include that as a result of the Internal Revenue Service wrongful levy of the accounts, the debtor was unable to pay mortgage payments post-petition in this case. Because of the post-petition default, the mortgagee commenced a motion for relief from stay and incurred the sum of $450.00 in attorney's fees to the mortgagee's attorney which, under the terms of the mortgage contract are due and payable by the debtor. The debtor has also incurred the sum of approximately $750.00 in attorney's fees to debtor's attorney to defend that action and to bring the action before the court in this motion. Finally, the debtor incurred a charge of $75.00 by the banking institution for processing the Internal Revenue Service levies.

Under the authority of 11 U.S.C. §362(h), and further under the Internal Revenue Service Code as discussed in the case of Grewe v. United States (In re Grewe) [93-2 USTC ¶50,535], 4 F.3d 299 (4th Cir. 1993), the Internal Revenue Service is responsible for all of the consequential damages including the reasonable attorney's fees as identified above. For this reason, it is this 5th day of March, 1997, by the United States Bankruptcy Court for the District of Maryland,

ORDERED, that the Internal Revenue Service shall pay to Susan Milto, the sum of $2,275.00 as actual damages for violation of the automatic stay; and the Internal Revenue Service, to the extent not already accomplished, shall immediately refund to Susan Milto all funds levied and collected after the date of petition in bankruptcy from accounts of Susan Milto.

[97-1 USTC ¶50,408] In re Cheryl Jones, Debtor. Cheryl Jones, Plaintiff v. Internal Revenue Service, Defendant

U.S. Bankruptcy Court, D.C., 94-01296, 3/27/97

[Code Secs. 6321 , 6331 , 6334 and 6871 ]

Bankruptcy: Tax liens: Attachment: Thrift savings plan: Anti-alienation provisions.--

An IRS tax lien attached to a debtor's Thrift Savings Plan ( TSP ) account. Although the TSP statute (5 U.S.C. §8431, et seq.) contains anti-alienation provisions, it cannot be interpreted as proscribing a tax levy on a TSP account. Since a lien is a less invasive collection measure than, and operates in conjunction with, a levy, Congress probably did not intend to allow a TSP account to be subject to a levy but not to a lien. Thus, the TSP statute was construed as not preventing the attachment of a tax lien. The lien did not transfer the debtor's title, possession, or interest in the account and, therefore, did not result in alienation of the debtor's property. Even though the IRS had not perfected the lien by levy or judgment, it was still enforceable.

Carol Waite, P.O. Box 3223, Oakton, Va. 22124, for (Jones, C.).

DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

TEEL, JR., Bankruptcy Judge:

On stipulated facts, the defendant Internal Revenue Service (" IRS ") seeks summary judgment adjudicating that its tax liens attached to the debtor's Thrift Savings Plan (" TSP ") account ¹ and that it has an allowed secured claim for the amount of that account despite the anti-alienation provisions of 5 U.S.C. §8437(e)(2) and the failure of the IRS to levy on the account before the debtor filed her bankruptcy case. The motion will be granted.

The plaintiff, Cheryl Jones, filed her bankruptcy petition under chapter 13 of the Bankruptcy Code and later filed this adversary proceeding to determine the amount of the IRS 's allowed secured claim. On the date of filing her petition, she was liable to the IRS for $61,347.17 in income taxes and associated interest and penalties. ² The IRS had previously filed a notice of federal tax liens relating to the assessments of the income taxes. The first issue is whether the liens attached to the debtor's TSP account in the approximate net amount of $8,375.00. ³ The second issue is whether the lien is avoidable as unperfected because the IRS never proceeded against the account.

I

The account is subject to the protections of 5 U.S.C. §8437(e)(2), enacted on June 6, 1986 , which provides, with exceptions inapplicable here, that TSP accounts "may not be assigned or alienated and are not subject to execution, levy, attachment, garnishment, or other legal process." Nevertheless, the court concludes that the account is subject to an enforceable federal tax lien under 26 U.S.C. §6321. As discussed in part A below, general principles counsel against repealing §6321 in the case of TSP accounts unless §6321 and §8437(e)(2) are in irreconcilable conflict. As discussed in part B below, because IRS levies are excepted from §8437(e)(2), Congress implicitly intended that tax liens, which levies serve to enforce and which accord the IRS priority as against other creditors, would continue to attach to TSP accounts. In any event, as discussed in part C below, the definition of alienation ought not be viewed as including the attachment of a tax lien which may be enforced by levy. A holding that the IRS claim may be enforced as a secured claim under the debtor's chapter 13 plan neither effects a prohibited alienation (part D below) nor subjects the TSP account to other creditors' claims (part E below).

A.

Under 26 U.S.C. §6321, the assessment of a tax liability gives rise to a tax lien on all of the taxpayer's property and rights to property. The TSP statute should not lightly be interpreted as repealing §6321 in the case of TSP accounts.

This follows from well settled principles of repeal by implication. See generally Chamber of Commerce v. Reich, 74 F.3d 1322, 1333 (D.C. Cir. 1996). It is a "cardinal rule . . . that repeals by implication are not favored." Posadas v. National City Bank, 296 U.S. 497, 503 (1936). This should particularly be so in the case of federal tax collection remedies because the Supreme Court has recognized that the collection of taxes is the "life-blood of government." Franchise Tax Board v. USPS, 467 U.S. 512, 523 (1984) (quoting Bull v. United States [35-1 USTC ¶9346], 295 U.S. 247, 259-60 (1935)).

Repeal by implication should be allowed here only if the two statutes' provisions are in irreconcilable conflict. Radzanower v. Touche Ross & Co., 426 U.S. 148, 155 (1976). That is to say, the provision of §6321 that the tax lien attaches to all of the debtor's property should be deemed repealed in the case of TSP accounts only if necessary to make the TSP statute work. Radzanower, 426 U.S. at 155. Demonstrably the TSP statute is susceptible to a reasonable and workable interpretation which does not bar the attachment of federal tax liens to TSP accounts.

B.

A TSP account is subject to seizure by levy under 26 U.S.C. §6334(a) because 26 U.S.C. §6334(c) provides that no properties other than those specifically listed in §6334(a) shall be exempt from levy "[n]otwithstanding any other law of the United States. . . ." This plain language bars interpreting 5 U.S.C. §8437(e)(2) as proscribing a §6331 levy on a TSP account. Cf. Shanbaum v. United States [94-2 USTC ¶50,512], 32 F.3d 180, 183 (5th Cir. 1994) (based in part on plain language of §6334(c), ERISA pension benefits subject to IRS levy despite ERISA's requirement that pension plan contain anti-alienation clause).

The debtor points to earlier bills in Congress that would have included "debts owed by the individual to the United States" as an additional exception to the proscriptions of 5 U.S.C. §8437(e)(2). See S. 1527, 99th Cong., 1st Sess. (1985) (proposed 5 U.S.C. §8426(d)(1)) and H.R. 3660, 99th Cong., 1st Sess. (1985) (proposed 5 U.S.C. §8434(d)(1)). That language was dropped from the final statute. ⁴ That deletion is inconsequential. The plain language of 26 U.S.C. §6334(c) made it unnecessary to retain the deleted language (which applied to all claims of the United States) or some modification thereof in order for IRS levies to be excepted from the proscriptions of 5 U.S.C. §843(e)(2).

Having concluded that a federal tax levy is not barred by the proscriptions of 5 U.S.C. §8437(e)(2), it is doubtful that Congress intended that the attaching of a federal tax lien, a much less drastic and invasive collection enforcement measure, is barred by §8437(e)(2). Particularly in light of the adjunct role a levy plays to a tax lien, Congress would not likely have intended that a TSP account could be levied on but could not be subjected to a tax lien under 26 U.S.C. §6321.

Under §6321 the federal tax lien attaches to "all property and rights to property, whether real or personal, belonging to [the taxpayer]." This language "is broad and reveals on its face that Congress meant to reach every interest in property that a taxpayer might have." United States v. Nat'l Bank of Commerce [85-2 USTC ¶9482], 472 U.S. 713, 719-20 (1985) (citation omitted). "A federal tax lien, however, is not self-executing. Affirmative action by the IRS is required to enforce collection of the unpaid taxes." Id. at 720. As observed in United States v. Whiting Pools, Inc. [83-1 USTC ¶9394], 462 U.S. 198, 209-210 (1983), the levy power is a means of enforcement of the tax lien and "[t]he Service's interest in seized property is its lien on that property." Viewing a levy as an adjunct to tax liens, it is implicit that a TSP account's exposure to tax levy includes subjecting the account to the tax lien which the levy enforces.

Concededly, by the terms of §6331 itself, a levy can be made on either property belonging to the taxpayer or on property subject to a tax lien (as in the case of property the debtor has conveyed to another before levy has been attempted). ⁵ But because Congress wanted to preserve the IRS 's right to levy, it surely must have intended to preserve the IRS 's right to take steps to assure that the levy power would be enforceable to the hilt.

Two examples of how a tax lien maximizes the effectiveness of a levy suffice. First, consider those instances in which other creditors execute on a TSP account ⁶ and would defeat a subsequent §6331 levy if no notice of tax lien had been earlier filed under 26 U.S.C. §6323. Second, consider the protection the tax lien would give the IRS if the ownership of the account passed by reason of the death of the taxpayer to someone else. The lien would remain on the funds and the IRS could levy on the funds as subject to the tax lien.

Indeed, some courts have held that a federal tax levy does not serve to accord the IRS any secured status against subsequent lienors, such that the IRS has no priority secured status unless it earlier filed a notice of tax lien. ⁷ If that is a correct holding, that would only strengthen the case for holding that a federal tax lien attaches to a TSP account. ⁸ But even if, as other courts have held, ⁹ a levy can serve to accord the IRS a secured status, Congress would not likely have deprived the levy power of the assistance that would be afforded it by the attaching of an earlier-filed federal tax lien.

Congress did not intend in enacting the TSP statute to diminish the property that a tax levy could reach with a first priority by immunizing a TSP account from the reach of the tax lien itself. Its concern, instead, was to prevent other creditors from taking steps allowing them to collect from TSP accounts.

Concededly, a lien is not a levy. For example, property can be subject to a lien which is exempt from a levy. In re Voelker [95-1 USTC ¶50,028], 42 F.3d 1050, 1052 (9th Cir. 1994); United States v. Barbier [90-1 USTC ¶50,107], 896 F.2d 377, 379 (9th Cir. 1990). It does not follow from this that a TSP account which, in regard to an IRS levy, is expressly excepted by 26 U.S.C. §6334(c) from the TSP statute's anti-alienation provisions, is in the absence of express congressional provision, exempt by reason of those same anti-alienation provisions from being subject to a federal tax lien.

This is because Section 8437(e)(2) addresses a goal of guarding against unwise assignments by the employee beneficiary of a TSP account and safeguarding the account from being subject to attack by creditors in general. The federal tax lien statute "relates to the taxpayer's rights to property and not to his creditors' rights." National Bank of Commerce [85-2 USTC ¶9482], 472 U.S. at 727.

Thus, the IRS is in a different status from ordinary creditors by reason of its right to levy on a TSP account. Unless §8437(e)(2) expressly overrides the tax lien statute, which it does not, the doctrine against implicit repealers requires that tax liens should attach to a TSP account because such accounts are subject to collection-attack by the IRS (via levy) and because the tax lien furthers that right of levy.

It is evident that by providing that TSP accounts are subject to levy under §6331, Congress confirmed the broader presupposition that such accounts are subject to Federal tax liens. Cf. In re Taylor, 81 F.3d 20, 24 (3d Cir. 1996) ("these sections, read together, evidence a congressional concern to preserve the collectability of tax claims"); Seminole Tribe of Florida v. Florida, 116 S.Ct. 1114, 1122 (1996) (although Eleventh Amendment is limited on its face to diversity jurisdiction, it confirms the broader presupposition that "federal jurisdiction over suits against nonconsenting states 'was not contemplated by