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Tax Attorney Newport Beach

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  • January 10, 2019 06:36:39 AM
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Newport Beach tax attorney Daniel Layton defends Orange County clients in IRS and FTB audits & collections, criminal tax defense, tax fraud & evasion cases, FBAR penalty defense, and foreign account disclosures (e.g., streamlined procedures).

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    When Can a Court Use Its Discretion to Decline Foreclosure of Property Subject to a Federal Tax Lien?

    When Can a Court Use Its Discretion to Decline Foreclosure of Property Subject to an IRS Federal Tax Lien? Judicial discretion to decline foreclosure in Federal […] The post When Can a Court Use Its Discretion to Decline Foreclosure of Property Subject to a Federal Tax Lien? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton &...

    When Can a Court Use Its Discretion to Decline Foreclosure of Property Subject to an IRS Federal Tax Lien?

    Judicial discretion to decline foreclosure in Federal tax lien cases is available, but very limited, under 26 U.S.C. § 7403. Courts have held it is available to protect a third party interest in the property when a variety of factors weighs in favor of exercising discretion and available when
    the value of the property had declined so that the equity of the property was depleted by lienholder senior to the government.

    The seminal case on this point is U.S. v Rodgers, 461 U.S. 677, 710-11 (1983). Rodgers held that the court could use discretion where necessary to protect the interest of a third party and listed factors to determine whether this limited discretion to not authorize the foreclosure should be used. Id. The Rodgers factors serve “to provide a framework under which it must justify a refusal to order a sale under § 7403.” U.S. v. Davenport, 106 F.3d 1333, 1338 (7th Cir. 1997). Even with respect to third parties, courts need not apply these factors before decreeing a sale under § 7403, consideration of these factors is “a matter of judicial grace.” Id.

    With respect to equitable discretion in favor of taxpayers themselves, the Supreme Court in Rodgers declined to provide them such discretionary protection, stating it could “think of virtually no circumstances… in which it would be permissible to refuse to authorize a sale simply to protect the interests of the delinquent taxpayer himself or herself.” Rodgers, 461 U.S. at 709. This holding is far from dicta, as the Supreme Court declined to engage in an analysis similar to the one it used for determining whether to exercise the limited discretion with respect to a third party where Joerene Ingram (whose similar case was consolidated with Rodgers’) was subject to a joint lien for $283.33, plus interest, as she was not a third party. Id. at 712. The different outcome for a third party versus a delinquent taxpayer is stark, as the Supreme Court indicated that the simple act of Ingram’s payment of the nominal amount of the joint liability would allow it to use the discretionary analysis. Id.

    Since the Supreme Court’s holding, in Rodgers, that the discretion to not authorize foreclosure is limited and to be used sparingly, taxpayers have routinely argued for the Rodgers holding to be used more expansively. See, e.g., Davenport, 106 F.3d 1338, n. 7. However, the Supreme Court Rodgers did not simply fail to consider justice as it may apply to a delinquent taxpayer because, in a footnote, it alluded that other options that do not amount to non-authorization of a foreclosure would suffice, including temporarily postponing a forced sale or making it subject to an upset price. In United States v. Moyer, for example, the District Court for the Northern District of California considered whether to stay its order of foreclosure, which was based on a stipulation by the parties, based upon the taxpayer’s showing that the value of the property had declined so that the equity of the property was depleted by lienholder senior to the government. United States v. Moyer, No. 07-00510, 2008 WL 3478063, 102 A.F.T.R. 2d RIA 5748 (N.D. Cal. Aug. 12, 2008).

    The Moyer case relied on the holding in U.S. v. Boyd, 426 F.2d 477, 481 (5th Cir. 1957), that a decree of foreclosure would not be appropriate if senior lienholders exhaust the equity. While it is important to note that Boyd is a pre-Rodgers case (Rodgers, on certiorari from two consolidated cases, overruled the 5th circuit’s more extensive use of discretion), and its holding would be limited to the extent it went beyond the limits of Rodgers, the Moyer case is easily reconciled with Rodgers. In the Moyer case, the district court merely stayed its order to foreclose, which is an acceptable exercise to protect the interest of the taxpayer per note 39 in Rodgers. Id.

    Daniel W. Layton, the author of this post, is a former IRS trial attorney and former Federal prosecutor who was tasked with handling criminal tax prosecutions and civil litigation including tax refund suits, lien enforcement and foreclosures. As a tax attorney in private practice in Newport Beach, he uses his knowledge of IRS procedures and rules to keep the IRS in check and protect his clients’ rights. He may be contacted at (949) 801-9829.

    The post When Can a Court Use Its Discretion to Decline Foreclosure of Property Subject to a Federal Tax Lien? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton & Lopez.


    Application of Homestead Provisions To Keep Your Home in Bankruptcy and Survival of Federal Tax Liens

    Application of Homestead Provisions To Keep Your Home in Bankruptcy and Survival of Federal Tax Liens California’s Homestead exemption is found in Chapter 4 of Division […] The post Application of Homestead Provisions To Keep Your Home in Bankruptcy and Survival of Federal Tax Liens appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton &...

    Application of Homestead Provisions To Keep Your Home in Bankruptcy and Survival of Federal Tax Liens

    California’s Homestead exemption is found in Chapter 4 of Division two of the California Code of Civil Procedure, pertaining to Enforcement of Money Judgments, in sections 704.710 – 704.850. These sections protect up to $175,000 of a residence in certain circumstances, including if one of the spouses is over 65, and as little as $75,000 if the resident is a single person living alone. The Homestead exemption filed pursuant to CCP § 704.730 is also applicable in Federal bankruptcy by virtue of § 522(b)(3)(A). FN1.

    A Homestead exemption applies, generally, to a principal dwelling of the judgment debtor or the spouse when the lien attached and which is continuously resided in through the court’s Homestead determination. It is initially claimed by filing a complete notarized Homestead declaration in the county recorder’s office where the property sits. A step-by-step guide can be found here.

    Claiming the Homestead Exemption in Bankruptcy Court May Only Be Keeping Your Home’s Equity for Payment of the Federal Tax Lien

    Although the Homestead exemption often is a godsend for homeowners in financial troubles, if you have a Federal IRS Tax Lien against you, it may only be securing the IRS’s interest for later collection of any equity in the home. Bankruptcy discharge only extinguishes in personam modes (against the individual) of enforcing a claim, leaving in rem (against the property) modes in tact. FN2. Tax liens survive bankruptcy, allowing the government to collect against the property of the debtor even when the underlying tax debt is discharged in bankruptcy. FN3. Moreover, where a debtor exempts property from the bankruptcy estate pursuant to 11 U.S.C. 522 and obtains a discharge while retaining that property, the exempted property remains subject to properly filed tax liens. FN4. The Homestead exempted property owned by the taxpayer, retained through the Bankruptcy proceeding, remains subject to the tax liens of the United States

    FN1. https://taxattorneyoc.com/wp-content/uploads/2019/01/In-Re-Pass-BAP-9th-Circuit-Opinion-2016-California-Homestead-Exemption-Bankruptcy.pdf

    FN2. Johnson v. Home State Bank, 501 U.S. 78, 84, 111 S. Ct. 2150, 2154 (1991).

    FN3. In Re Isom v. United States of America, 901 F.2d 744, 746 (9th Cir. 1990).

    FN4. In Re Demarah v. U.S., 62 F.3d 1258 1248, 1252 (9th Cir. 1995) (citing Isom and 11 U.S.C. 522(c)(2)(B)).

    Daniel W. Layton, the author of this post, is a former IRS trial attorney and former Federal prosecutor who was tasked with handling criminal tax prosecutions and civil litigation including tax refund suits, lien enforcement and foreclosures. As a tax attorney in private practice in Newport Beach, he uses his knowledge of IRS procedures and rules to keep the IRS in check and protect his clients’ rights. He may be contacted at (949) 801-9829.

    The post Application of Homestead Provisions To Keep Your Home in Bankruptcy and Survival of Federal Tax Liens appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton & Lopez.


    Does Res Judicata Apply to Stipulated Tax Court Decisions?

    Does Res Judicata Apply to Stipulated U.S. Tax Court Decisions? The judicial principle of res judicata applies to stipulated Tax Court Decisions. However, if the stipulated […] The post Does Res Judicata Apply to Stipulated Tax Court Decisions? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton &...

    Does Res Judicata Apply to Stipulated U.S. Tax Court Decisions?

    The judicial principle of res judicata applies to stipulated Tax Court Decisions. However, if the stipulated decision is opaque, the doctrine does not include elements of a particular underlying theory that one side or the other believed justified settlement.

    The U.S. Supreme Court found that res judicata applied in tax litigation. Commiss’r v. Sunnen, 333 U.S. 591, 598 (1948). Established primarily to avoid repetitive litigation and thereby conserve judicial resources, the doctrine of res judicata directs that a prior judgment bars a subsequent action (1) between the same parties or their privies (2) when the claims and the facts surrounding the two causes of action are the same and (3) the prior judgment was a final judgment on the merits entered into by a court of competent jurisdiction. Id. at 597. Where the litigation is based upon a different cause of action but with points that were determined by the prior matter the principal is more accurately referred to as collateral estoppel, and the parties may only litigate the points that were not determined by the prior matter. See id. at 598.

    Furthermore, various affirmative equitable defenses including duress, unclean hands, and estoppel, cannot be applied to defeat the res judicata effect of the Tax Court’s judgment. “The doctrine of res judicata serves vital public interests beyond any individual judge’s ad hoc determination of the equities in a particular case. There is simply ‘no principal of law or equity which sanctions the rejection by a federal court of the salutary principle of res judicata.” Federated Dep’t Stores v. Moitie, 452 U.S. 394, 401, 101 S. Ct. 2424, 2529 (1981).

    Moreover, the United States Tax Court has been recognized as a court of competent jurisdiction with respect to the application of res judicata. See Russell v. Commiss’r, 678 F.2d 782 (9th Cir. 1982) (holding that the Tax Court is a court of competent jurisdiction such that the doctrine of res judicata applies to that litigation in Tax Court). Furthermore, United States Tax Court decisions entered pursuant to stipulation constitute final judgments for purposes of res judicata. See U.S. v. Int’l Building Co., 345 U.S. 502, 73 S. Ct. 807 (1953); U.S. v. Shanbaum, 10 F.3d 305, 313 (5th Cir., 1994); Trent v. Commiss’r, T.C. Memo 2002-285; Cf. Ariz. v. Cal., 530 U.S. 392, 120 S. Ct. 2304 (2000) (res judicata attaches to a stipulated judgment but does not include elements of a particular underlying theory where the stipulation is opaque).

    Daniel W. Layton, the author of this post, is a former IRS trial attorney and former Federal prosecutor who was tasked with handling criminal tax prosecutions and civil litigation including tax refund suits, lien enforcement and foreclosures. As a tax attorney in private practice in Newport Beach, he uses his knowledge of IRS procedures and rules to keep the IRS in check and protect his clients’ rights. He may be contacted at (949) 801-9829.

    The post Does Res Judicata Apply to Stipulated Tax Court Decisions? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton & Lopez.


    What Is a Federal IRS Tax Lien?

    What is a federal IRS tax lien? A federal IRS tax lien is a lien for unpaid tax liabilities which arises in favor of the United […] The post What Is a Federal IRS Tax Lien? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton &...

    What is a federal IRS tax lien?

    A federal IRS tax lien is a lien for unpaid tax liabilities which arises in favor of the United States.  A federal tax lien statutorily arises, even if  a notice is not filed in a state or local recorder’s office, against all property and rights to property owned by the taxpayers as of the assessment date under 26 U.S.C. §§ 6321 and 6322 when notice and demand for payment is made (e.g., a bill is issued) and the tax is not immediately paid.  A Notice of Federal Tax Lien against the taxpayer’s property may thereafter be filed in a local recorder’s office, which serves to secure the priority of the lien relative to other potential creditors.

    The statutory lien continues until the liability is satisfied or becomes unenforceable by lapse of time. FN1. Such liens attach to all property of the taxpayer acquired after the assessment as well as existing at the time of the assessment.  FN2.

    A federal tax lien is not valid against a purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor, until a Notice of Federal Tax Lien has been filed.  FN3. Otherwise, tax liens may continue with property through transfers from the taxpayers to other parties if not paid or discharged.  FN3.  The Notice of Federal Tax Lien secures the government’s interest relative to other lien-holders or interest holders, including subsequent purchasers, so long as it is properly filed in the county where real property sits.  Irrespective of such relative priorities of creditors, the tax code does not require filing for the interest of the United States to be valid as against the taxpayers. FN5.

    FN1.   26 U.S.C. § 6322.

    FN2.  Bank of America Nat. Trust & Sav. Ass’n v. Mamakos, 509 F.2d 1217, 1219 (9th Cir. 1975).

    FN3.  26 U.S.C. § 6323.

    FN4.  U.S. v. Bess, 357 U.S. 51, 57, 78 S. Ct. 1054, 1058 (1958).

    FN5.  26 U.S.C. § 6323.

    Daniel W. Layton, the author of this post, is a former IRS trial attorney and former Federal prosecutor who was tasked with handling criminal tax prosecutions and civil litigation including tax refund suits, lien enforcement and foreclosures. As a tax attorney in private practice in Newport Beach, he uses his knowledge of IRS procedures and rules to keep the IRS in check and protect his clients’ rights. He may be contacted at (949) 801-9829.

    The post What Is a Federal IRS Tax Lien? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton & Lopez.


    What Is an IRS Tax Assessment?

    What Is an IRS Tax Assessment? An IRS tax assessment is a bookkeeping entry made by the Internal Revenue Service when an IRS assessment officer signs […] The post What Is an IRS Tax Assessment? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton &...

    What Is an IRS Tax Assessment?

    An IRS tax assessment is a bookkeeping entry made by the Internal Revenue Service when an IRS assessment officer signs a summary record of assessment (Form 23C Assessment Certificate), with supporting records describing (1) the taxpayer’s name and address, (2) the character of the assessed liability, (3) the taxable period (if any), and (4) the amount of the assessment. 26 C.F.R. § 301.6203-1. When a tax is assessed, it has become due.

    To prove a tax assessment, “[c]ourts have indicated that a Form 4340 is adequate to prove a valid assessment if it lists the ‘23C date,’ indicating the date on which the actual assessment was made.” FN1. Tax assessments are presumed to be correct, and the taxpayer bears the burden of showing that assessments are arbitrary or erroneous. FN2. In addition, unless there is clear evidence to the contrary, assessments are presumed to have been made by the IRS in accordance with its regular procedures for the making of tax assessments. FN3. Administratively, the IRS’s online master-file account transcripts for a taxpayer’s tax period and form would also show whether and when an assessment has been made and would be sufficient for the IRS to rely upon internally and in administrative collections, even though the more formal Form 4340 would be used in a courtroom setting.

    FN1. Huff v. United States, 10 F.3d 1440, 1446 (9th Cir. 1993).
    FN2. Welch v. Helvering, 290 U.S. 111, 115, 54 S. Ct. 8, 9 (1933); United States v. Molitor, 337 F.2d 917, 922 (9th Cir. 1964).
    FN3. Lewis v. United States, 279 U.S. 63, 73, 49 S. Ct. 257, 260 (1929); Hughes v. United States, 953 F.2d 531 (9th Cir. 1992).

    Daniel W. Layton, the author of this post, is a former IRS trial attorney and former Federal prosecutor who was tasked with handling criminal tax prosecutions and civil litigation including tax refund suits, lien enforcement and foreclosures. As a tax attorney in private practice in Newport Beach, he uses his knowledge of IRS procedures and rules to keep the IRS in check and protect his clients’ rights. He may be contacted at (949) 801-9829.

    The post What Is an IRS Tax Assessment? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton & Lopez.


    What is the Estate Tax Exemption?

    A Post-Tax Reform Look at Estate Planning Perhaps unwittingly, President Benjamin Franklin best distilled the reason for estate planning when he said, “[N]othing can be said […] The post What is the Estate Tax Exemption? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton &...

    estate planning attorney newport beach, tax attorney newport beach, business planning newport beach

    A Post-Tax Reform Look at Estate Planning

    Perhaps unwittingly, President Benjamin Franklin best distilled the reason for estate planning when he said, “[N]othing can be said to be certain, except for death and taxes.”    The estate tax exemption is a keen example of how these certainties collide.

    Generally, one might think of death and tax as separate:  one being after life and the other during.  Certainly, estate planning can relate to each individually.  At death, you specify who receives what and when.  During life, you set up a charitable trust to optimize your tax position or irrevocable trust to provide for your children in a lower tax bracket.  

    However, when planning your estate, you should realize these two players can go hand in hand.  Unsurprisingly, tax can be the unwanted gift that keeps on giving, even after death.  Fortunately for your beneficiaries, the government offers a partial reprieve from this less than desirable package.

    Also known as the “Death Tax,” estate tax affords the government nearly half of your estate upon death.  Currently, the estate tax rate is 40 percent.  Without an exemption, this tax can toll a hefty sum for the average taxpayer.  The estate tax exemption protects a portion of the estate from this 40 percent tax.

    Under the Tax Cuts and Jobs Act of 2017, the legislature expanded the exemption from $5.49 Million in tax year 2017 to $11.18 Million in tax year 2018.  For 2019, the exemption increased yet again to $11.4 Million.  Today, a married couple benefits from an exemption worth $22.8 Million.  This estate tax exemption effectively protects the average taxpayer.

    In all, the “Death Tax” appears to target the ultra-wealthy.  However, do not be deceived.   Even the average taxpayer can incur costs in the form of probate.  In some states, such as California, probate is an expensive process but can be averted if you place your assets in a trust.  Moreover a taxpayer who is on the cusp of the exemption may benefit from strategically gifting during her lifetime.

    Whether preparing for death, taxes, or both, be proactive and speak with an expert who can help guide you through the ups and downs of estate planning.  Our team is ready and willing to help.  After discussing your specific situation and goals, we can sit down and craft an estate plan tailored to your individual needs.  Whatever your individual scenario, take time to prepare for the certainties that President Franklin once so aptly identified.

    The author of this post, Star Q. Lopez, is a partner of Layton & Lopez Tax Attorneys, LLP.  Ms. Lopez focuses on tax, business, and estate planning issues.  She holds a JD from UCLA School of Law, a LLM in Taxation from NYU Law, and a MBA from The University of Chicago Booth.

    The post What is the Estate Tax Exemption? appeared first on Tax Attorney Newport Beach, Orange County, CA | Layton & Lopez.


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