|
|
|||||||||||||||||||||
|
|
|||||||||||||||||||||
                              
|
6335 Code and Regulations | ||||||||||||||||||||
IRC, 2005FED
¶38,230, Sec. 6335., SALE OF SEIZED PROPERTY
|
6335(a) NOTICE OF SEIZURE. --As soon as practicable after seizure of property, notice in
writing shall be given by the Secretary to the owner of the property
(or, in the case of personal property, the possessor thereof), or shall
be left at his usual place of abode or business if he has such within
the internal revenue district where the seizure is made. If the owner
cannot be readily located, or has no dwelling or place of business
within such district, the notice may be mailed to his last known
address. Such notice shall specify the sum demanded and shall contain,
in the case of personal property, an account of the property seized and,
in the case of real property, a description with reasonable certainty of
the property seized.
6335(b) NOTICE OF
6335(c) SALE OF INDIVISIBLE PROPERTY. --If
any property liable to levy is not divisible, so as to enable the
Secretary by sale of a part thereof to raise the whole amount of the tax
and expenses, the whole of such property shall be sold.
6335(d) TIME AND PLACE OF
6335(e) MANNER AND CONDITIONS OF
6335(e)(1) IN GENERAL. --
6335(e)(1)(A)
DETERMINATIONS RELATING TO MINIMUM PRICE. --Before the sale of property seized by levy, the
Secretary shall determine --
6335(e)(1)(A)(i) a minimum price below which such property shall not be sold (taking into
account the expense of making the levy and conducting the sale), and
6335(e)(1)(A)(ii) whether, on the basis of criteria prescribed by the Secretary, the
purchase of such property by the United States at such minimum price
would be in the best interest of the United States.
6335(e)(1)(B)
6335(e)(1)(C)
PROPERTY DEEMED SOLD TO UNITED STATES AT MINIMUM PRICE IN CERTAIN CASES.
--If no
person offers the amount of the minimum price for such property at the
sale and the Secretary has determined that the purchase of such property
by the
6335(e)(1)(D)
RELEASE TO OWNER IN OTHER CASES. --If, at the sale, the property is not declared sold under
subparagraph (B) or (C), the property shall be released to the owner
thereof and the expense of the levy and sale shall be added to the
amount of tax for the collection of which the levy was made. Any
property released under this subparagraph shall remain subject to any
lien imposed by subchapter C.
6335(e)(2) ADDITIONAL RULES APPLICABLE TO
6335(e)(2)(A)
That the
sale shall not be conducted in any manner other than --
6335(e)(2)(A)(i) by public auction, or
6335(e)(2)(A)(ii) by public sale under sealed bids.
6335(e)(2)(B)
In the case
of the seizure of several items of property, whether such items shall be
offered separately, in groups, or in the aggregate; and whether such
property shall be offered both separately (or in groups) and in the
aggregate, and sold under whichever method produces the highest
aggregate amount.
6335(e)(2)(C)
Whether the
announcement of the minimum price determined by the Secretary may be
delayed until the receipt of the highest bid.
6335(e)(2)(D)
Whether
payment in full shall be required at the time of acceptance of a bid, or
whether a part of such payment may be deferred for such period (not to
exceed 1 month) as may be determined by the Secretary to be appropriate.
6335(e)(2)(E)
The extent
to which methods (including advertising) in addition to those prescribed
in subsection (b) may be used in giving notice of the sale.
6335(e)(2)(F)
Under what
circumstances the Secretary may adjourn the sale from time to time (but
such adjournments shall not be for a period to exceed in all 1 month).
6335(e)(3) PAYMENT OF AMOUNT BID. --If payment in full is required at the time of
acceptance of a bid and is not then and there paid, the Secretary shall
forthwith proceed to again sell the property in the manner provided in
this subsection. If the conditions of the sale permit part of the
payment to be deferred, and if such part is not paid within the
prescribed period, suit may be instituted against the purchaser for the
purchase price or such part thereof as has not been paid, together with
interest at the rate of 6 percent per annum from the date of the sale;
or, in the discretion of the Secretary, the sale may be declared by the
Secretary to be null and void for failure to make full payment of the
purchase price and the property may again be advertised and sold as
provided in subsections (b) and (c) and this subsection. In the event of
such readvertisement and sale any new purchaser shall receive such
property or rights to property, free and clear of any claim or right of
the former defaulting purchaser, of any nature whatsoever, and the
amount paid upon the bid price by such defaulting purchaser shall be
forfeited.
6335(e)(4) CROSS REFERENCE. --
For
provision providing for civil damages for violation of paragraph (1)(A)(i),
see section 7433.
6335(f) RIGHT TO REQUEST
6335(g) STAY OF
For
restrictions on sale of seized property pending Tax Court decision, see
section 6863(b)(3).
.01 Amended by P.L. 105-206, P.L. 100-647, P.L. 99-514, P.L.
94-455 (Deadwood Act) and P.L. 89-719. For details, see the Code
Volumes.
|
|
|
|
|
|
|
|
|
|
|
|
|
©
2005, CCH
Tax and Accounting. All Rights Reserved. |
|
|
FINAL-REG,
2005FED ¶38,231, §301.6335-1.,
|
||
Caution:
Reg. §301.6335-1 does not reflect recent law changes. For details, see ¶38,231.01.
(a) Notice of seizure. --As soon as practicable after seizure of property, the
internal revenue officer seizing the property shall give notice in
writing to the owner of the property (or, in the case of personal
property, to the possessor thereof). The written notice shall be
delivered to the owner (or to the possessor, in the case of personal
property) or left at his usual place of abode or business if he has such
within the internal revenue district where the seizure is made. If the
owner cannot be readily located, or has no dwelling or place of business
within such district, the notice may be mailed to his last known
address. Such notice shall specify the sum demanded and shall contain,
in the case of personal property, a list sufficient to identify the
property seized and, in the case of real property, a description with
reasonable certainty of the property seized.
(b) Notice of sale
(1) As soon
as practicable after seizure of the property, the district director
shall give notice of sale in writing to the owner. Such notice shall be
delivered to the owner or left at his usual place of abode or business
if located within the internal revenue district where the seizure is
made. If the owner cannot be readily located, or has no dwelling or
place of business within such district, the notice may be mailed to his
last known address. For further guidance regarding the definition of
last known address, see §301.6212-2. The notice shall specify the
property to be sold, and the time, place, manner, and conditions of the
sale thereof, and shall expressly state that only the right, title, and
interest of the delinquent taxpayer in and to such property is to be
offered for sale. The notice shall also be published in some newspaper
published in the county wherein the seizure is made or in a newspaper
generally circulated in that county. For example, if a newspaper of
general circulation in a county but not published in that county will
reach more potential bidders for the property to be sold than a
newspaper published within the county, or if there is a newspaper of
general circulation within the county but no newspaper published within
the county, the district director may cause public notice of the sale to
be given in the newspaper of general circulation within the county. If
there is no newspaper published or generally circulated in the county,
the notice shall be posted at the post office nearest the place where
the seizure is made, and in not less than two other public places.
(2) The
district director may use other methods of giving notice of sale and of
advertising seized property in addition to those referred to in
subparagraph (1) when he believes that the nature of the property to be
sold is such that a wider or more specialized advertising coverage will
enhance the possibility of obtaining a higher price for the property.
(3) Whenever
levy is made without regard to the 10-day period provided in section
6331(a) (relating to cases in which collection is in jeopardy), a public
notice of sale of the property seized shall not be made within such
10-day period unless section 6336 (relating to perishable goods) is
applicable.
(c) Time, place, manner, and conditions of sale. --The
time, place, manner, and conditions of the sale of property seized by
levy shall be as follows:
(1) Time and place of sale. --The time of sale shall not be less than 10 days nor
more than 40 days from the time of giving public notice under section
6335(b) (see paragraph (b) of this section). The place of sale shall be
within the county in which the property is seized, except that if it
appears to the district director under whose supervision the seizure was
made that substantially higher bids may be obtained for the property if
the sale is held at a place outside such county, he may order that the
sale be held in such other place. The sale shall be held at the time and
place stated in the notice of sale.
(2) Adjournment of sale. --When it appears to the district director that an
adjournment of the sale will best serve the interest of the United
States or that of the taxpayer, the district director may adjourn, or
cause the internal revenue officer conducting the sale to adjourn, the
sale from time to time, but the date of the sale shall not be later than
one month after the date fixed in the original notice of sale.
(3) Determinations relating to minimum price
(i)
Minimum price. --Before the sale of property seized by levy, the district director shall
determine a minimum price, taking into account the expenses of levy and
sale, for which the property shall be sold. The internal revenue officer
conducting the sale may either announce the minimum price before the
sale begins, or defer announcement of the minimum price until after the
receipt of the highest bid, in which case, if the highest bid is greater
than the minimum price, no announcement of the minimum price shall be
made.
(ii)
Purchase by the
(a) Marketability
of the property;
(b) Cost
of maintaining the property;
(c) Cost
of repairing or restoring the property;
(d) Cost
of transporting the property;
(e) Cost
of safeguarding the property;
(f) Cost
of potential toxic waste cleanup; and
(g) Other
factors pertinent to the type of property.
(iii)
Effective date. --This paragraph (c)(3) applies to determinations relating to minimum price
made on or after December 17, 1996.
(4) Disposition of property at sale
(i)
(ii)
Property deemed sold to
(iii)
Release to owner. --If the property is not declared to be sold under paragraph (c)(4)(i) or
(ii) of this section, the property shall be released to the owner of the
property and the expense of the levy and sale shall be added to the
amount of tax for the collection of which the United States made the
levy. Any property released under this paragraph (c)(4)(iii) shall
remain subject to any lien imposed by subchapter C of chapter 64 of
subtitle F of the Internal Revenue Code.
(iv)
Effective date. --This paragraph (c)(4) applies to dispositions of property at sale made on
or after December 17, 1996.
(5) Offering of property
(i)
(ii)
Separately, in groups, or in the aggregate. --The
seized property may be offered for sale --
(a) As
separate items, or
(b) As
groups of items, or
(c) In
the aggregate, or
(d) Both
as separate items (or in groups) and in the aggregate. In such cases,
the property shall be sold under the method which produces the highest
aggregate amount.
The
district director shall select whichever of the foregoing methods of
offering the property for sale as, in his opinion, is most feasible
under all the facts and circumstances of the case, except that if the
property to be sold includes both real and personal property, only the
personal property may be grouped for the purpose of offering such
property for sale. However, real and personal property may be offered
for sale in the aggregate, provided the real property, as separate
items, and the personal property as a group, or as groups, or as
separate items, are first offered separately.
(iii)
Condition of title and of property. --Only the right, title, and interest of the delinquent
taxpayer in and to the property seized shall be offered for sale, and
such interest shall be offered subject to any prior outstanding
mortgages, encumbrances, or other liens in favor of third parties which
are valid as against the delinquent taxpayer and are superior to the
lien of the
(iv)
Terms of payment. --The property shall be offered for sale upon whichever of the following
terms is fixed by the district director in the public notice of sale:
(a) Payment
in full upon acceptance of the highest bid, without regard to the amount
of such bid, or
(b) If
the aggregate price of all property purchased by a successful bidder at
the sale is more than $200, an initial payment of $200 or 20 percent of
the purchase price, whichever is the greater, and payment of the balance
(including all costs incurred for the protection or preservation of the
property subsequent to the sale and prior to final payment) within a
specified period, not to exceed one month from the date of the sale.
(6) Method of sale. --The district director shall sell the property either --
(i)
At public
auction, at which open competitive bids shall be received, or
(ii)
At public
sale under sealed bids.
The
following rules, in addition to the other rules provided in this
paragraph, shall be applicable to public sale under sealed bids:
(a) Invitation
to bidders. --Bids
shall be solicited through a public notice of sale.
(b) Form
for use by bidders. --A bid shall be submitted on a form which will be furnished by the
district director upon request. The form shall be completed in
accordance with the instructions thereon.
(c) Remittance
with bid. --If
the total bid is $200 or less, the full amount of the bid shall be
submitted therewith. If the total bid is more than $200, 20 percent of
such bid or $200, whichever is greater, shall be submitted therewith.
(In the case of alternative bids submitted by the same bidder for items
of property offered separately, or in groups, or in the aggregate, the
bidder shall remit the full amount of the highest alternative bid
submitted, if that bid is $200 or less. If the highest alternative bid
submitted is more than $200, the bidder shall remit 20 percent of the
highest alternative bid or $200, whichever is greater.) Such remittance
shall be by a certified, cashier's, or treasurer's check drawn on any
bank or trust company incorporated under the laws of the
(d) Time
for receiving and opening bids. --Each bid shall be submitted in a securely sealed envelope.
The bidder shall indicate in the upper left hand corner of the envelope
his name and address and the time and place of sale as announced in the
public notice of sale. A bid will not be considered unless it is
received by the internal revenue officer conducting the sale prior to
the opening of the bids. The bids will be opened at the time and place
stated in the notice of sale, or at the time fixed in the announcement
of the adjournment of the sale.
(e) Consideration
of bids. --The
public notice of sale shall specify whether the property is to be sold
separately, by groups, or in the aggregate or by a combination of these
methods, as provided in subparagraph (4)(ii) of this paragraph. If the
notice specifies an alternative method, bidders may submit bids under
one or more of the alternatives. In case of error in the extension of
prices in any bid, the unit price will govern. The internal revenue
officer conducting the sale shall have the right to waive any technical
defects in a bid. In the event two or more highest bids are equal in
amount, the internal revenue officer conducting the sale shall determine
the successful bidder by drawing lots. After the opening, examination,
and consideration of all bids, the internal revenue officer conducting
the sale shall announce the amount of the highest bid or bids and the
name of the successful bidder or bidders. Any remittance submitted in
connection with an unsuccessful bid shall be returned at the conclusion
of the sale.
(f) Withdrawal
of bids. --A
bid may be withdrawn on written or telegraphic request received from the
bidder prior to the time fixed for opening the bids. A technical defect
in a bid confers no right on the bidder for the withdrawal of his bid
after it has been opened.
(7) Payment of bid price. --All payments for property sold under this section
shall be made by cash or by a certified, cashier's, or treasurer's check
drawn on any bank or trust company incorporated under the laws of the
United States or under the laws of any State, Territory, or possession
of the United States, or by a United States postal, bank, express, or
telegraph money order. If payment in full is required upon acceptance of
the highest bid, the payment shall be made at such time. If deferred
payment is permitted, the initial payment shall be made upon acceptance
of the bid, and the balance shall be paid on or before the date fixed
for payment thereof. Any remittance submitted with a successful sealed
bid shall be applied toward the purchase price.
(8) Delivery and removal of personal property. --Responsibility
of the
(9) Default in payment. --If payment in full is required upon acceptance of the bid and
is not then and there paid, the internal revenue officer conducting the
sale shall forthwith proceed again to sell the property in the manner
provided in section 6335(e) and the regulations thereunder. If the
conditions of the sale permit part of the payment to be deferred, and if
such part is not paid within the prescribed period, suit may be
instituted against the purchaser for the purchase price or such part
thereof as has not been paid, together with interest at the rate of 6
percent per annum from the date of the sale; or, in the discretion of
the district director, the sale may be declared by the district director
to be null and void for failure to make full payment of the purchase
price and the property may again be advertised and sold as provided in
subsections (b), (c), and (e) of section 6335 and the regulations
thereunder. In the event of such readvertisement and sale, any new
purchaser shall receive such property or rights to property free and
clear of any claim or right of the former defaulting purchaser, of any
nature whatsoever, and the amount paid upon the bid price by such
defaulting purchaser shall be forfeited to the
(10) Stay of sale of seized property pending Tax Court decision.
--For
restrictions on sale of seized property pending Tax Court decision, see
section 6863(b)(3) and the regulations thereunder.
(d) Right to request the sale of seized property
(1) In general. --The owner of any property seized by levy may request that the
district director sell such property within 60 days after such request,
or within any longer period specified by the owner. The district
director must comply with such a request unless the district director
determines that compliance with the request is not in the best interests
of the Internal Revenue Service and notifies the owner of such
determination within the 60 day period, or any longer period specified
by the owner.
(2) Procedures to request the sale of seized property
(i)
Manner. --A
request for the sale of seized property shall be made in writing to the
group manager of the revenue officer whose signature is on Levy Form
668-B. If the owner does not know the group manager's name or address,
the owner may send the request to the revenue officer, marked for the
attention of his or her group manager.
(ii)
Form. --The
request for sale of seized property within 60 days, or such longer
period specified by the owner, shall include:
(A) The name,
current address, current home and work telephone numbers and any
convenient times to be contacted, and taxpayer identification number of
the owner making the request;
(B) A
description of the seized property that is the subject of the request;
(C) A copy of
the notice of seizure, if available;
(D) The
period within which the owner is requesting that the property be sold;
and
(E) The
signature of the owner or duly authorized representative. For purposes
of these regulations, a duly authorized representative is any attorney,
certified public accountant, enrolled actuary, or any other person
permitted to represent the owner before the Internal Revenue Service who
is not disbarred or suspended from practice before the Internal Revenue
Service and who has a written power of attorney executed by the owner.