SSA levy on Benefits to Justice Department

Post:6/1:  Parts of the opinion are posted under Opinions of the Office of Legal counsel On SS Benefits.
 
Post: 5/28/2011:  A reply was received from the Department of Justice which sent an opinion on a related matter.  Comments on this opinion are forth coming. 
 
 Supervisory Paralegal
Office of Legal Counsel
Department of Justice
Room 5515, 950 Pennsylvania Ave. N.W.
Washington, D.C.     20530-0001
 
May 17, 2011
 
 Re: FOIA Conflict of Federal Laws
Title 42 USC, Chapter 7, Supchapter II, Section 407
Title 26 U.S.C. Section 6331(h)
 
For the past three or four years I have been trying to resolve what appears to me a conflict of federal laws.  In corresponding with the Department of Treasury, Social Security Administration, and members of Congress, no one has attempted to clarify the issue.  I would appreciate any information, court opinions that would help me understand the problem between the two laws.
 
 To be as brief as possible, Title 42 USC, Chapter 7, Supchapter II, Section 407, is clear in the “Assignment of Benefits” that:
(a) “The right of a person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this subchapter shall be subject to execution, levy, attachment or any other legal process, or to any bankruptcy or insolvency law. 
(b) Amendment of section: no other provision of law, enacted before, on, or after April 20, 1983, 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.”
 
 On the other hand, Title 26 U.S.C. Section 6331(h) reads in part:  “Continuing levy on certain payments;
(1) In general
 If the Secretary approves a levy under this subsection, the effect of such levy on specified payments to or received by a taxpayer shall be continuous from the date such levy is first made until such levy is released. . . .
(2) Specified payment
For the purposes of paragraph (1), the term “specified payment” means—
(A) any Federal payment other than a payment for which eligibility is based on the income or assets (or both) of a payee,
(B) any payment described in paragraph (4), (7), (9), or (11) of section 6334(a), and . . . .
 The controlling language contained in the law at section 407 of Title 42 is “by express reference to this section.”  In all of section 6331 of the Internal Revenue Code no reference can be found which would modify the provisions of 42 USC 407. The ‘Taxpayer Relief Act of 1997 (Public Law 105-34, codified at Title 26 USC Section 6331(h)) only modifies (by express reference) section 6334 of Title 26.  Section 6334 of the Revenue Code (Title 26 USC Section 6334: Property exempt from levy), reveals no ‘modification’ to 42 USC Chapter 7, Subchapter II, Section  407. 
 
 To my understanding the language in section 6331(h)(2)(B) defining “specified payment” as being “any Federal payment” does not meet the specific requirements of the language of section 407(b) “by express reference.”  The only part of the Social Security Act where “express reference” is made in section 6331(h)(2)(B), which identifies Title 26 Section 6334 (a)(11), “Certain public assistance payments;
Any amount payable to an individual as a recipient of public assistance under—
(A) title IV or title XVI (relating to supplemental security income for the aged, blind, and disabled) of the Social Security Act, or; …”  (I find a problem in the government’s use of “title IV or title XVI”.  There is none such in the Social Security Act)
 
 Supplemental security income (SSI) is not the same as Social Security benefits.  SSI is paid by the Department of Treasury out of the general fund and Social Security benefits are paid out of SS funds.  To my understanding the two department are different jurisdictions and the language of Title 26 would only apply to funds paid out of the Department of Treasury’s account.  Department of Treasury publications outlining the Taxpayer Relief Act claim that they can levy Social Security benefits, when if fact, no mention is made at all regarding Social Security benefits only Supplemental Security Income.
 
 I have researched the internet respecting the conflict of laws and the only ones addressed is the conflict between State vs. State and State vs. Federal Laws.  If there is no conflict Title 42 section 407 still controls, which law governs the payment of Social Security benefits.  How do we resolve this, as the FPLP and the FMS will not do anything, not to mention Congress?
 
Sincerely,
cc: FPLP, FMS, SSA, select member of Congress
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