U.S. Department of the Treasury
Attn: Ms. Cynthia Sydnor
Financial Management Services
401 14th Street SW Room 5538
Washington D, .C. 20227
December 26,2011
Re: My freedom of information request of May 17,2011 and Social Security benefits levy
Ms. Svdnor.
Last May I asked for information regarding the lien/levy against my Social Security benefits. (Letters included) You have never as of this date, responded to that request which is a violation of the Freedom of Information/Privacy Act of which you must answer.
Also, please be advised that your department of unknown agents are also in violations of Title 42 section 407(b), the Social Security Act and section 6331(a) of the IRC, and its implementing regulation for liens as contained in section 6321 of Title 26 is found in Title 27 CFR Part70 which is applicable to the ATF bureau. An examination of the Table of Points and Authorities found in the Code of Federal Regulations will confirm this fact.
Adding weight to this is the opinion of the Legal counsel for the Department of Justice which pointed to the language of the courts regarding the phrase “notwithstanding” as found in section 407(b) of Title 42 which in part states;
Opiniorts of the Office of Legal counsel in Volume 34by Daniel L. Koffsky, Applicability of Tax Levies Under 26 U.S.C. $6334 to TSP Accounts, Memorandum Opinion For the Chief Counsel Internal Revenue Service ( May 3, 2010)( In part)
The opinion drafted by Mr. Koffsky addresses an apparent conflict between Thrift Savings Plan accounts being subject to tax levies under §§6331, 6334 of the IRC and a provision of the Federal Employees’ Retiremen Stystem Act of 1986, 5 U.S.C.A. § 8437 (e)(2). He concluded at page 3 that “[i]n our view, he texts of the two statutes are properly reconciled by giving primacy to the federal tax levy provisions in section 6334.”
In addressing §6334, Mr. Koffsky comments, “Although the TSP provisions may appear absolute if read in isolation, section 6334(c)’s ‘ notwithstanding” clause indicates by its terms that all “‘other law[s] of the United States, . . ., are ineffective to bar a federal tax levy, except as provided by the express exceptions in section 5334(a). As a generarl ule “the useo f sucha ‘notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.” Cisneros vs. Alpine Ridge Group, 508 U.S. 10, 18 (1993);see also,e .g., IIRIRA Opinion at 7 (observing that a prefatory “notwithstanding” clause’ does reflect a congressional intention to displace inconsistent law”) [See also, Shomberg v. United States, 348 U.S. 540, 547-548 (1955)," ln using the "notwithstanding"language in these sections, Congress clearly manifested its intent that certain policies should override the otherwise broad and pervasive principle of the savings clause."]. Indeed, some courts have observed that a clearer statement” of congressional intent to supersede all other laws “‘is difficult to imagine,”‘ see Cisneros, 508 U.S. at l8 (quoting Liberty Maritime Corp. v. United States, 928 F. 3d 413 , 416 (1991) . . . and the Supreme Court has described the “notwithstanding” clause in section 6334 as “direct[ing]” that “[t]he enumeration [of exceptions contained in §6334(a). . . is exclusive." Drye v. United States, 528 U.S. 49, 56 (1991); see also In re Beam (Beamv s. IRS), 192 F. 3d 941, 944 (9th Cir. 1999) (describing section 6334 as "unambiguous" in indicating "that Congress clearly intended to exclude from IRS levy only those 13 categories of property specifically-exempted in section 6334(a)")
The opinion then examines the phrase "by express reference".
"As one indication of section 6334(c)'s breadth, Congress amended that provision in 1984 expressly to include section 207 of the Social Security Act, 42 U.S.C. §407 (2006), which provides that "[the right of any person to any future payment undert his subchapter shall not be . . .' Id. §407(a). This provision itself had recently been amended to provide that "[n]o other provision of law, enacted before, on, or after . . ., may be construed to limit, supersede, or otherwise modify the provisions of this section except to the extent that it does so by express reference to this section.”. . . . The ‘express reference’ requirement of section 207 shows, if anything, a stronger congressional intent to preclude levies than the relevant language of FERSA, which includes no such ‘express reference’ requirement broadening its scope. Accordingly, as the en banc Ninth Circuit recently observed in an analysis of provisions similar to those at issue here, ‘[i]t would . . . be anomalous to interpret’ section 6334(c)’ as abandoning the protection of Social Security benefits but not of retirement plans’ covered by other provisions that do not even have a comparable’ express reference’ requirement. Novak, 476 F. 3d at 1948.”
To those points addressed by Mr. Koffsky, I would add the key wording in part (b) of section 407 is “by express reference”. I looked up in Black’s Law Dictionary the word “express” and in very clear language; “Express: Clear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous. … Directly and distinctly stated. Made known distinctly and explicitly, and not left to inference. .. The word is usually contrasted with “implied.
ln the conflict addressed in our issue, (§6334 vs. §407) there is the use of the “notwithstanding” clause in both section 6334(c) of the statute and section 407. One thing becomes evident that the statute [26 U.S.C. §633a(c)] and the regulation promulgated for the statute by the Secretary of the Treasury [ 26 CFR Sec.3 01.6334-l(c)] are not the same language. The challenge now arrises from the fact that the statute modifies the language of section 207 of the “compilation” of the Social Security Act. However, the compilation of the Social Security Act is not “prima facia” evidence, to quote:
“Effect of Compilation;
The Compilation of the Social Security Laws is not prima facie evidence of the provisions of the Social Security Act or other laws or statutes which are included, but has been prepared for convenient reference purposes.” (See www.ssa.gov/OP_Home/ssact-preface.htm)
It is evident that neither the Statute (26 USC $633a(c)) or its regulation “expressly references” Title 42 USC Section 407(a) and therefore fail to meet the requirements of the law at Title 42 Section 407(b). And in addition to, the inclusion of the phrase “notwithstanding”, these two expressions in the Statute (Title 42 section 407(a) and (b)) are a bar to any attempt by the government agencies involved to lien or levy Social Security benefits due.
Without a valid Court judgement against me, the presumption of innocence is in my favor. Your department has combined with the IRS and the FPLP in seizing funds that are rightfully due in violation of the law which by the way, your agency is required to up hold. I still require that your agency immediately stop all action on the illegal levy place upon me. Also, please fulfill the request of my FOIA.
Respectfully,
Loral S. Glazier
cc: Scott Johnson, Assistant Commissioner
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