6331 Community Property

2000-2 USTC ¶50,613] In re Jerry W. McIntyre and Waltrout McIntyre, Debtors. Waltrout McIntyre, Plaintiff-Appellant v. United States of America , Defendant-Appellee

(CA-9), U.S. Court of Appeals, 9th Circuit, 98-17192, 7/13/2000, Affirming an unreported District Court decision

[Code Secs. 6331 and 6871 ]

Tax levies: Pension plans: Assignment or alienation of benefits: California: Community property: Bankruptcy.--A debtor's claim that the IRS lacked authority to levy her community interest in her husband's and co-debtor's pension fund in order to satisfy outstanding federal income taxes incurred by her husband was properly denied. Her contention that state (California) law gave her an "exclusive" half-interest in the husband's pension benefits was rejected because that law refers to equal interests in the whole of the community property rather than exclusive interests in only half of the community property. Further, by granting creditors recourse against the whole community estate on the debts of only one spouse, California law implicitly establishes that spouse's interest in the whole of the community property, at least to a degree sufficient for the IRS to impose tax liens under the Code. Babb (CA-9), 74-1 USTC ¶9476 , followed. BACK REFERENCES: ¶38,187.15 , 38,187.173 and 40,630.0246

[Code Sec. 401 ]

Tax levies: Pension plans: Assignment or alienation of benefits: ERISA.--The IRS was entitled to levy on a debtor's pension fund to collect outstanding federal income taxes even though it was a qualified retirement plan under ERISA because the bar against assignment or alienation of an individual's interest in a qualified retirement plan did not preclude the IRS from enforcing its tax levy. Moreover, ERISA contains a savings clause that prohibits construction of the anti-alienation provision to alter, amend or supersede other federal laws, and a prohibition against the alienation of ERISA funds to satisfy a federal levy would limit the scope of Code Sec. 6321 . BACK REFERENCES: ¶17,733.72

Waltrout McIntyre, Stockton, Calif., pro se. Loretta C. Argrett, William S. Estabrook and Janet A. Bradley, Department of Justice, Washington, D.C. 20530, for the defendant-appellee.

Before: O'SCANNLAIN, LEAVY and RYMER, Circuit Judges.

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether the Internal Revenue Service may levy upon ERISA-regulated pension benefits to satisfy a husband's tax debt against the claim that the wife has a vested interest in half of those benefits under community property laws.

Waltrout McIntyre's husband and co-debtor, Jerry McIntyre, owed almost $300,000 in overdue federal income taxes for the years 1983-1995. In 1996, the Internal Revenue Service ("IRS") served a Notice of Federal Tax Levy upon Jerry's pension plan, the California Field Iron Worker Pension Trust Fund, which is governed by the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§1001 et seq. Pursuant to the IRS levy, the pension plan began paying Jerry's pension benefits directly to the IRS in August 1996.

In May 1997, the McIntyres filed a joint bankruptcy petition under Chapter 13 of the Bankruptcy Code, 11 U.S.C. §1301 et seq. In June 1997, Mrs. McIntyre initiated within the bankruptcy proceedings an adversary proceeding against the United States under 26 U.S.C. §7426, claiming that the IRS's levy of Jerry's pension benefits was wrongful insofar as it seized her one-half interest in those benefits (which she purported to hold under California's community property regime).

The bankruptcy court granted the IRS's motion for summary judgment, rejecting her contentions both that the IRS lacked authority to levy her interest in the pension benefits in satisfaction of her husband's tax debt and that ERISA precluded the use of those benefits to discharge a federal tax liability.

II.

"We review the bankruptcy court's . . . conclusions of law de novo." Levin v. Maya Constr. (In re Maya Constr. Co.), 78 F.3d 1395, 1398 (9th Cir. 1996). On appeal from the district court, "we independently review the bankruptcy court's decision and do not give deference to the district court's determinations." Robertson v. Peters (In re Weisman), 5 F.3d 417, 419 (9th Cir. 1993).

There is no dispute that the IRS may levy on a delinquent taxpayer's property for the enforcement of his federal tax obligations. See, e.g., United States v. National Bank of Commerce [85-2 USTC ¶9482], 472 U.S. 713, 719, 86 L.Ed.2d 565, 105 S.Ct. 2919 (1985). Broad authority to do so is granted by statute:

If any person liable to pay any tax neglects or refuses to pay the same within 10 days after notice and demand, it shall be lawful for the Secretary to collect such tax . . . by levy upon all property and rights to property (except such property as is exempt under section 6334) belonging to such person.

26 U.S.C. §6331(a). ¹ Nonetheless, Mrs. McIntyre maintains (and the United States does not contest) that this provision authorizes the IRS to levy on property only insofar as the interest of the delinquent taxpayer extends and no further. It is well established that "state law controls in determining the nature of the legal interest which the taxpayer has in property." Morgan v. Commissioner [40-1 USTC ¶9210], 309 U.S. 78, 82, 60 S.Ct. 424, 84 L.Ed. 585 (1940).

Mrs. McIntyre objects to the IRS's levy of the whole of her husband's pension benefits because, under California law, the interest of her husband (the delinquent taxpayer) in those benefits extends only to half of their face value. This is so, she argues, because the pension benefits are subject to California 's community property regime, which gives husband and wife "present, existing, and equal interests" in community property "during continuance of the marriage relation." Cal. Fam. Code §751 (West 2000). ² Mrs. McIntyre contends that, under §751, she has an "exclusive" half-interest in her husband's pension benefits, that her husband's own interest in those benefits thus extends only to half of their value, and that the other half (her half) is therefore beyond the IRS's levy power pursuant to 26 U.S.C. §6331.

There is no authority for Mrs. McIntyre's characterization of her property interest in her husband's pension benefits as "exclusive" of any that he may retain. As an initial matter, Family Code §751 does not speak in terms of any "exclusive" divisions of community property: That provision refers to "equal interests" in the whole of the community property rather than in terms of "exclusive" interests in only half of the community property. Family Code §910 further undermines Mrs. McIntyre's characterization. That section establishes that:

the community estate is liable for a debt incurred by either spouse before or during marriage, regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.

Cal. Fam. Code §910(a) (emphases added). We have held before that, by granting creditors recourse against the whole community estate on debts of only one spouse, California law "implicitly" establishes that spouse's "interest" in the whole of the community property, at least to a degree sufficient for the IRS to impose tax liens under the Internal Revenue Code. See Babb v. Schmidt [74-1 USTC ¶9476], 496 F.2d 957, 960 (9th Cir. 1974).

As both the bankruptcy court and the district court indicated, our decision in Babb must foreclose Mrs. McIntyre's claim, at least to the extent that she bases it on California 's community property regime. Like her, the plaintiff in Babb was a wife who brought suit for wrongful levy under 26 U.S.C. §7426 because the IRS had sought recourse against community property for satisfaction of tax debts owed by the husband alone. See id. at 958. The wife argued that, because California law gave her a vested interest in half of the moneys in the couple's bank accounts, "her husband [could] not be said to have 'property or rights to property' " in that half, and the IRS thus could not attach it. Id. We rejected the wife's argument. We held that California law has "implicitly given the husband rights in [the wife's share] sufficient to meet the requirements" for tax liens against the property of delinquent taxpayers. Id.

The plaintiff in Babb contended, just as Mrs. McIntyre does here, that California 's provision of recourse for one spouse's creditors against the other spouse's share of the community property is merely a rule regulating creditors' rights and does not define the first spouse's "rights to property" for purposes of federal tax law. See id. at 959. We dismissed this contention, however, and our reasoning plainly disposes of Mrs. McIntyre's further argument that the scope of the federal authority to attach a wife's property for the satisfaction of a husband's tax debt should be uniform across states. See id. at 958-59 (distinguishing contrary holdings from cases in Washington and Arizona by noting that those states defined the husband's property interests differently by "denying premarital creditors of the husband access to the wife's share of the community").

Mrs. McIntyre's efforts to distinguish Babb are unavailing. She first asserts that Babb turned on the extent of a federal tax lien against a wife's share under 26 U.S.C. §6321 rather than the IRS's authority to levy thereon pursuant to 26 U.S.C. §6331. This observation is irrelevant, for the provisions for the federal tax lien and the IRS's levy power are both explicitly limited to "all property and rights to property . . . belonging to" the delinquent taxpayer, 26 U.S.C. §§6321, 6331. The Supreme Court has thus acknowledged the similarity in the scope of the provisions. See National Bank of Commerce [85-2 USTC ¶9482], 472 U.S. at 719, 720 (1985) ("The statutory language 'all property and rights to property,' appearing in §6321 (and, as well, in §6331(a) . . . ), is broad and reveals on its face that Congress meant to reach every interest in property that a taxpayer might have."). ³

Mrs. McIntyre next argues that our holding in Babb is inapplicable because the property at issue in that case, a bank account, was not regulated by ERISA whereas the pension payments at issue in this case are. Her distinction of Babb based on the role of ERISA in this case appears to rest on one of two arguments; neither of them is valid.

The first argument is that ERISA effectively preempts Cal. Fam. Code §910 and thereby preempts California law to the extent that it gives Mrs. McIntyre's husband any interest in her share of his pension benefits (by giving to his creditors recourse against her share). Because Mrs. McIntyre's husband has no interest in her share under the remaining, non-preempted provisions of California law, the argument goes, the scope of the IRS's levy authority cannot extend to her share.

This argument relies on an over-exuberant interpretation of ERISA's anti-alienation provision, which requires only that any ERISA-governed pension plan "provide that benefits provided under the plan may not be assigned or alienated." 29 U.S.C. §1056(d)(1). The underlying premise is that, because ERISA's anti-alienation provision would preclude the operation of §910 to the extent that it would permit creditors to proceed against the pension benefits at issue, cf. Guidry v. Sheet Metal Workers Nat'l Pension Fund, 493 U.S. 365, 107 L.Ed.2d 782, 110 S.Ct. 680 (1990); Ablamis v. Roper, 937 F.2d 1450, 1458 (9th Cir. 1991), the same provision also must preclude the operation of §910 to the extent it "implicitly" grants an interest in the same benefits to her husband. We reject this premise. Although the creditors' recourse guaranteed by §910 may be ineffective against Mrs. McIntyre's share of her husband's pension benefits, it does not follow that the husband's property interest therein has been similarly vitiated. ERISA's anti-alienation provision plainly does not preempt the operation of California law insofar as it vests in the husband a continuing property interest in his own pension benefits, for less is being alienated from the plan beneficiary (the husband) in this circumstance than if his interest in those benefits were entirely foreclosed. Mrs. McIntyre's argument based upon ERISA's preemption of §910 thus must fail.

The bankruptcy and district courts interpreted Mrs. McIntyre's argument to be simply that ERISA's anti-alienation provision prevents the IRS from levying on the benefits from any ERISA-governed pension plan. As an initial matter, the Internal Revenue Code expressly indicates that no other federal law shall exempt property from the IRS's authority to levy a delinquent taxpayer's property under §6331. See 26 U.S.C. §6334(c). Moreover, ERISA's anti-alienation clause cannot prevent the IRS from undertaking what would otherwise be a valid exercise of its levy authority under 26 U.S.C. §6331, because ERISA itself has a saving clause that states: "Nothing in this subchapter [which includes the anti-alienation provision] shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States." 29 U.S.C. §1144(a). The only other circuit that has addressed this issue reached the same conclusion, which authority we find persuasive. See Shanbaum v. United States [94-2 USTC ¶50,512], 32 F.3d 180, 182-83 (5th Cir. 1994); cf. United States v. Sawaf [96-1 USTC ¶50,063], 74 F.3d 119, 123-24 (6th Cir. 1996) (upholding the treasury regulation that authorizes the IRS to levy on the benefits of an ERISA-governed plan and applying that regulation to uphold the IRS's collection against such benefits); Anderson v. United States, 149 B.R. 591, 595 (9th Cir. BAP 1992) (upholding a tax lien against benefits from an ERISA-governed plan). ⁴ We think it is plain that the IRS's authority to proceed against a delinquent taxpayer's interest in benefits from an ERISA-governed plan is not constrained by ERISA's anti-alienation provision.

AFFIRMED.

¹ There is no claim that Jerry's pension benefits fall under an exemption enumerated in 26 U.S.C. §6334.

² The government concedes that the pension benefits are community property, and thus we shall not address that claim here.

³ It is true that the IRS's levy power is somewhat narrower in that it does not extend to property exempted under §6334, but those exemptions are not relevant to Mrs. McIntyre's case.

⁴ Treasury regulations interpreting the same language used in ERISA's anti-alienation provision also suggest that the IRS's levy authority is not restricted thereby. See 26 C.F.R. §1.401(a)-13(B)(2) ("A plan provision satisfying the [anti-alienation] requirements . . . shall not preclude the following: (i) The enforcement of a Federal tax levy made pursuant to section 6331.").

[99-1 USTC ¶50,227] Joan S. Leaks, Plaintiff-Appellant v. United States of America , Defendant-Appellee

(CA-9), U.S. Court of Appeals, 9th Circuit, 97-17036, 1/14/99 , Reversing an unreported District Court decision

[Code Sec. 6331 ]

Levy and distraint: Spousal property: Who is the taxpayer: Community property: Property acquired during marriage: Wages.--A divorced wife was entitled to a return of property levied upon by the IRS in satisfaction of her ex-husband's tax liability. The IRS 's reliance on a state ( Nevada ) law presumption that all property acquired during marriage is community property was misplaced. Since the government offered no evidence to show that the wife acquired the seized property during the marriage, the presumption that it qualified as community property never came into play. However, the wife could not recover wages seized before the divorce since the levy in that instance was specifically limited to property acquired during the marriage..

Before: FARRIS, REINHARDT and HAWKINS, Circuit Judges. ^*

MEMORANDUM ^**

Dr. Joan Leaks ("Leaks") sued the government after the Internal Revenue Service levied her assets and salary in an effort to collect the tax debts of her ex-husband, George Leaks. The Leakses were married in 1969 and lived in South Carolina , a non-community property state, until 1990. At some point during the time they lived in South Carolina , George Leaks failed to pay employment taxes for his optometry practice, and the IRS assessed him but was unable to levy any of Leaks' separate property. In 1990, the Leakses moved to Nevada , a community property state. They divorced in November, 1995.

In the weeks before the divorce became final, the IRS seized Leaks' bank accounts, salary, and other assets, arguing that her funds were subject to seizure because they were community property under Nevada law. The property taken from her included: First Interstate Bank, $628.00; Nevada State Bank, $9,573.62; Western Reserve Life Insurance Co., $2,700.53. In addition, her employer, Premier Family Medical Center remitted $2,181.82 from her salary. Shortly thereafter, Leaks filed suit in federal district court to recover her money, contending that these sums were her separate property and not subject to seizure.

The district court granted summary judgment for the government on the theory that Leaks failed to rebut the presumption under Nevada law that all property acquired during marriage is community property. The order issued by the district court noted that she "offered no affidavits or other evidence to support her contention that a material question of fact remains as to the characterization of the property levied on by the government."

There is indeed a presumption under Nevada law that property acquired during coverture is community property. 1989 Nev. Stat. 123.130, 123.220. There is, however, no presumption that property acquired before marriage is community property or even that property possessed by a spouse was acquired during marriage. Campbell v. Campbell, 101 Nev. 380, 383 (1985) ("[T]he community property presumption did not even come into operation" until it was proved that the property was acquired during the marriage.).

The government has failed to come forward with a shred of evidence that $12,902.15 of the money seized from Joan Leaks was acquired during her marriage to George Leaks. Thus the presumption does not come into play, and Leaks had nothing to rebut. Moreover, in the absence of any evidence supporting the government's claim, its case must fail. Dr. Leaks is thus entitled to summary judgment with respect to the $12,902.15 seized without any evidence that it was marital property. She is not, however, entitled to the return of the $2,181.82 from her salary, because the levy in that case was specifically limited to amounts earned between October 4, 1995 and the date of the Leakses' divorce.

The judgment of the district court is REVERSED in part and AFFIRMED in part, and the case is REMANDED for further action in accordance with this disposition. Costs on appeal are awarded to appellant.

^* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); (2)

^** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

93-2 USTC ¶50,605] Onie L. Hyde, Plaintiff v. United States of America, Defendant

U.S. District Court, Dist. Ariz., Civ. 90-1258 PHX EHC, 9/1/93

[Code Secs. 401 , 6331 and 6334 ]

Pension plans: Assignment or alienation prohibited: Levy and distraint: Community property.--The IRS was permitted to levy 100% of a widow's retirement benefits to satisfy her husband's liability for the 100% penalty for failure to pay over withholding taxes owed by the company of which he had been an officer. As set forth in O.L. Hyde (93-2 USTC ¶50,432 ), under state ( Arizona ) community property law, the husband owned a 50% interest in the portion of his wife's retirement plan earned during the marriage. Because the husband's interest in the plan was considered "property" under state law, it was proper to attach a lien to that interest. Since the debt incurred by the husband was deemed a "community debt" for which both spouses were liable, the husband's subsequent death did not terminate the wife's obligation to pay the debt. Further, the community debt classification subjected the entire interest in the plan to IRS levy. Moreover, the regulation that prohibits alienation of a benefit plan did not preclude the enforcement of a federal tax levy under Code Sec. 6331 . Because the wife's retirement plan was subject to the Code Sec. 6331 levy, the IRS was authorized to collect from it, even after the husband's death.

ORDER

Background

CARROLL, District Judge:

Plaintiff Onie L. Hyde filed a complaint on August 15, 1990, seeking an injunction against an Internal Revenue Service levy on her portion of the United Dairymen of Arizona Trust, a benefit plan sponsored by her place of employment. The levy was initiated after the I.R.S. assessed a 100% penalty tax on her husband, Farrell Hyde. Plaintiff contended that Farrell's debt was a separate debt and that, because he could exercise no present property interest or rights in the trust, the levy should be enjoined.

Defendant moved for summary judgment on the grounds that the attachment of the lien to the property was an issue of law and not of fact. The Court granted this motion on June 7, 1993. The Court held that Arizona 's community property laws gave Farrell Hyde a present interest in the money accrued in his wife's benefit plan after their marriage. Since the language in 26 U.S.C §6331 mandates a levy on all property and rights to property belonging to a person who is delinquent in their taxes, the trust was subject to Farrell's debts. ¹

Plaintiff now seeks to have the Court reconsider its Order of Summary Judgment pursuant to Federal Rule of Civil Procedure 60(b) because new evidence was discovered after its issuance. Plaintiff states that her husband's death on May 5, 1993 has a direct bearing on the issue decided by the Court.

Discussion

Because state laws govern the ownership of property, U.S. v. Mitchell [71-1 USTC ¶9451 ], 91 S.Ct 1763, 1767 (1971), Arizona community property laws must be applied to the [sic] determine the Hydes' property subject to the levy. In Arizona , community property interests terminate upon death of a spouse; therefore, Farrell Hyde's death dissolved the Hydes' community. Tway v. Payne, 55 Ariz. 343, 345, 101 P.2d 455, 456 (1940); In re Estate of Pfeffer, 16 Ariz.App. 147, 10, 492 P.2d 27, 30 (1972). However, Plaintiff may be liable for any debts incurred by her husband during their marriage even after the community has ceased to exist. Johnson v. Johnson, 131 Ariz. 38, 45, 638 P.2d 705, 711 (1981). If a debt is deemed to be a "community debt" then both partners are obligated to pay it back. Johnson at 44; citing Donato v. Fishburn, 90 Ariz. 210, 213, 367 P.2d 245, 246 (1961). Conversely, a "separate debt" only binds that party which incurs it. A.R.S. §21 -215(a); Johnson at 45. To determine if Plaintiff's benefit plan will continue to be subject to the assessed tax levy, the Court must classify the debt incurred by her husband.

Arizona courts have defined community debts as an obligation incurred during marriage for the benefit of the community. Johnson at 44. A.R.S. §25 -214(b) gives spouses equal power to bind the community; section (c) further provides that either spouse may separately bind the community without their partner's consent or knowledge. ² Thus, if a husband acts "with the object of benefitting the community, . . . the obligations incurred by him are community in nature, whether or not the wife approved thereof." Ellsworth v. Ellsworth, 5 Ariz.App. 89, 92, 423 P.2d 364, 367 (1967).

In this case, Farrell failed to collect, truthfully account for and pay over to the government the withheld income and FICA taxes of J.B. Architectural and Mechanical, Inc., the company in which he was an officer. The marital community is not liable for debts contracted by the husband which are in no way connected with the community and from which the community receives no benefit. Hamada v. Valley National Bank, 27 Ariz.App. 433, 436, 555 P.2d 1121, 1124 (1976). Here, it is undisputed that Farrell Hyde's unreported income was used for the benefit of the Hydes' marital community. Stipulation of Facts, Defendant's Motion to Dismiss or in the Alternative for Summary Judgment at para. 12. Since the debt is a community debt, both Farrell and Onie Hyde are liable and Farrell's death did not terminate his wife's obligation to the I.R.S.

In granting Defendant's Motion to Dismiss, the Court held that Onie Hyde's benefit plan could be levied to satisfy her husband's debt because it was community property. Since Defendant sought only 50% of the trust, that which it surmised to be Farrell's interest, the Court approved the levy of precisely that amount. However, the Court also noted that the entire amount of the benefit plan could be levied, contingent upon its classification as either a community or separate debt. Because the Court now classifies Farrell Hyde's obligation to the I.R.S. as being a community debt, Onie's entire plan can be levied.

Plaintiff directs the Court to Ablamis v. Roper, 937 F.2d 1450 (9th Cir. 1991). However, the issue before the Ablamis court was "whether a wife who dies while her husband is still living may leave half his current or future pension benefits to a third party in her will." Id. at 1452. Ablamis is inapposite to the matters currently before the Court, which concern the relationship between federal tax levy powers and state law community property interests.

Moreover, 27 C.F.R. §1.401(a)-13(b)(2)(i) provides that the laws against alienation of a benefit plan do not preclude the enforcement of a Federal tax levy pursuant to 26 U.S.C. §6331 . Since Onie Hyde's benefit plan is subject to the §6331 levy, the I.R.S. is authorized to collect from it even after her husband's death.

Accordingly,

IT IS ORDERED denying Plaintiff's Rule 60(b) Motion for Reconsideration of Order of Summary Judgment (dkt. #21).

¹ The Court found that the Plaintiff's trust was not exempt from the levy because it did not fall under those categories specified in 26 U.S.C. §6334(a) .

² The joinder of both spouses is necessary only in limited cases. Such cases include the following: (1) any transaction for the acquisition, disposition, or encumbrance of an interest in real property other than an unpatented mining claim or a lease of less than one year; (2) any transaction of guaranty, indemnity, or suretyship.

[95-2 USTC ¶50,601] IBEW Local Union No. 640, et al., Plaintiffs v. Howard E. Forman, et al., Defendants

U.S. District Court, Dist. Ariz., CIV . 94-2431 PHX PGR , 9/20/95

[Code Sec. 6103 ]

Disclosure of return information.--The IRS did not improperly disclose an individual's return information because the information disclosed in the notices of levy was necessary to the collection activity.

[Code Sec. 6201 ]

Assessment authority: Liabilities reported on returns.--The IRS was not required to issue a notice of deficiency for several of the tax years at issue because it was authorized to assess liabilities based on the liabilities reported on the taxpayer's joint return without the deficiency assessment procedure.

[Code Sec. 6203 ]

Method of assessment: Validity.--An assessment was valid despite the IRS 's failure to provide the taxpayer with the actual record of assessment because the taxpayer received all the pertinent information. Furthermore, a notice of assessment mailed a few days prior to the actual assessment did not invalidate the assessment.

[Code Secs. 6331 , 6332 and 6334 ]

Levy and distraint: Surrender of property: Pension benefits: Community property: Property exempt from levy.--A local union was entitled to protection from liability for honoring levies against an individual because the individual's pension benefits were properly the subject of a tax levy and no exemption applied. Under state (Arizona) law, the benefits were community property, and the individual's tax debts were community debts. .

ORDER

ROSENBLATT, District Judge:

The Court, having considered the various motions pending before it in light of the entire record and the oral argument of the parties, finds that the plaintiffs' and the United States' cross-motions for summary judgment should be granted and that the Formans' motions should be denied.

The Court initially concludes that Howard Forman's pension benefits are subject to levy pursuant to 26 U.S.C. §6331 in their entirety since under Arizona law those benefits are community property, Johnson v. Johnson, 131 Ariz. 38, 638 P.2d 705, 708 (1981); Hyde v. United States, 93-2 USTC ¶50,432 (D.Ariz. 1993), aff'd without op., 26 F.3d 130 (9th Cir. 1994), Howard Forman's tax debts to the United States are community debts, Hyde v. United States, 93-2 USTC ¶50,433 (D.Ariz. 1993), aff'd without op., 26 F.3d 130 (9th Cir. 1994), and those benefits are not exempt from levy pursuant to any exemption set forth in 26 U.S.C. §6334(a) . Shanbaum v. United States, 32 F.3d 180, 183 (5th Cir. 1994); Hyde v. United States, 93-2 U.S.T.C. ¶50,432 at 89,325. Since the pension benefits are properly the subject of a tax levy, the plaintiffs are entitled to the protection from liability for honoring the levies afforded by 26 U.S.C. §6332(e) .

The Court also concludes that the Formans have not established that they are entitled to a continuance pursuant to Fed.R.Civ.P. 56(f) in order to obtain discovery with which to rebut the presumption of procedural regularity enjoyed by the Certificates of Assessments and Payments submitted by the United States in support of its summary judgment motion. Under Rule 56(f), the burden is on the Formans to set forth by affidavit the particular material facts expected to be uncovered through discovery that would preclude summary judgment and to identify specific facts tending to show that the evidence sought actually exists. Klingele v. Eikenberry, 849 F.2d 409, 412 (9th Cir. 1988). A Rule 56(f) continuance is not appropriate if further discovery could not elicit evidence that would raise genuine issues of material fact. Id. The "irregularities" pointed out in Forman's affidavits are insufficient to preclude summary judgment in the United States' favor. First, a notice of assessment mailed a few days prior to the actual assessment does not invalidate the assessment. See United States v. Friedman [84-2 USTC ¶9639 ], 739 F.2d 252, 256 (7th Cir. 1984) ("We hold that the failure to provide notice within sixty days after the making of an assessment will not bar suit [by the government] where the government has provided complete notice shortly before the making of the assessment.") Second, the validity of an assessment is not affected by the United States' failure to provide the taxpayer with the underlying "actual record of assessment". Although 26 U.S.C. §6203 provides that "[u]pon request of the taxpayer, the Secretary shall furnish the taxpayer a copy of the record of assessment[,]" the enabling regulation, 26 CFR §301.6203-1 , provides that

[i]f the taxpayer requests a copy of the record of assessment, he shall be furnished a copy of the pertinent parts of the assessment which set forth the name of the taxpayer, the date of the assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed.

The Formans have been provided with all of this information. Third, no warrant for distr