Letter to SSA & FMS on benefits

Sheryll Ziporkin, Associate Commissioner

Social Security Administration

6401 Security Blvd

Baltimore, MD      21235-6401

September 13, 2011

Ref:  SSR 79-4   LEVY AND GARNISHMENT OF BENEFITS

Dear Ms. Ziporkin,

I am not sure how many of your officers in the Social Security Administration are aware of Title 42 of the United States Code at section 407.  By reading the SSR 79-4 it is evident that this individual is not.  In composing the language of this ruling, the individual quotes only part of Section 207 of the Social Security Act:

“The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law.”

Here they are quoting only part (a) of section 207, and then goes on to make the false conclusion:

“However, section 6331 of the Internal Revenue Code of 1954 (26 U.S.C. 6331) which was enacted into law on August 16, 1954, after the enactment of section 207, gives the Secretary of the Treasury the right to levy or seize for collection of delinquent Federal taxes, property, rights to property, whether real or personal, tangible, or intangible and the right to make successive levies and seizures until the amount due, together with all expenses, is fully paid. . . .

Therefore, since section 6334 of the Internal Revenue Code of 1954 does not specifically exempt Social Security benefits from levy, such benefit checks may be levied upon by the Secretary of the Treasury under section 6331 of the Internal Revenue Code of 1954.

A couple of problems with this ruling.  The compiler of this information for dissemination to the employees of the Administration failed to take in account the language of part (b) of section 207:

 (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.

The language of part (b), “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 . . .”, makes the conclusion; “However, section 6331 of the Internal Revenue Code of 1954 (26 U.S.C. 6331) which was enacted into law on August 16, 1954, after the enactment of section 207, gives the Secretary of the Treasury the right to levy or seize for collection of delinquent Federal taxes, . . .”, a moot point.  The passing of the various section and the sequence of their passage has no bearing on the issue.  Section 207 on the Social Security Act follows the language of the Statute 42 United States Code section 407.

Secondly, the qualifying language of Section 207 (407) is clear that; ” 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.  Please note the clear language, “by express reference to this (section 407) section.”

Since neither the Internal Revenue Service, the Financial Management Service or your office have been able to address the issues I have inquired about, I have addressed my concerns to the Department of Justice.  They have been helpful with comments on this issue.

Opinions of the Office of Legal counsel in Volume 34 by 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’ Retirement System Act of 1986, 5 U.S.C.A. § 8437(e)(2).  In the opinion he addresses two elements that have interested me, the terms “notwithstanding” and “express reference”.  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 the “notwithstanding” clause of § 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 6334(a).   As a general rule “the use of such a ‘notwithstanding’ clause clearly signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.” Cisneros v. 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), ” In 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 18 (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 (Beam vs. 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)”) . . . .”

  “It is true that FERSA was enacted after section 6334(c), which might be thought to make the preemptive effect of section 6334(c)’s “notwithstanding” clause “less certain,” since “[t]he drafters of [section 6334(c)] can hardly be said to have had [FERSA] specifically within their contemplation.” . . . Yet in cases involving later-enacted statutes lacking their own applicable “notwithstanding” clauses, courts have deemed “notwithstanding” clauses “powerful evidence that Congress did not intend” other statutes, “whenever enacted,” to qualify the terms of the earlier-enacted statute.  Ill. Nat’l Guard, 854 F. 2d at 1403. . . .  Moreover, the TSP anti-levy provisions, as a later-enacted statute that has “notwithstanding” clause and does not expressly cross-reference section 6334 or even mention any exercise of authority by the Secretary of Treasury, could override section 6334 and thus preclude federal tax levies on TSP accounts only if it effected an implied partial repeal of section 6334’s broad directive that “no property or rights to property shall be exempt from levy other than the property specifically made exempt by [26 U.S.C. §6334(a)].” 26 U.S.C. §6334(c).  But “repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest.”  Hawaii v. Office of Hawaiian Affairs, 129 S. Ct.1436, 1445 (2009)”

[The opinion’s next approach is to examine 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 under this 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 show’s, 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 the point addressed by Mr. Koffsky concerning ‘express reference’, I would add the key word 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.”

In the conflict addressed in our issue, (§6334 vs. §§207, 407) there is the use of the “notwithstanding” clause in both section 6334(c) of the statute and sections 207, 407.  Mr. Koffsky addressed that issue when he concluded, “. . . The ‘express reference’ requirement of section 207 show’s, 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.” [emphasis added]

Your people reading the Ruling (79-4) are given a directive which is inconsistent with the law.  This violation of the law is what effects my Social Security benefits.  Both your agency and the Financial Management Service want to “pass the buck” to the IRS.  The IRS has its problems, but the recognition of the unlawful levy put on my benefits by the IRS and the language of section 207(b) is what is in question. This is your agency’s problem to resolve with me.  The continued reliance on SSR 79-4 leaves the actions of the Social Security Administration and the FMS open to inquiry.

Respectfully,

cc: Financial Management Service

Advertisements
Gallery | This entry was posted in government authority, levy on social security benefits, Social Security and tagged , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s