Legal Standard for Orders for
Entry to Effect Levy
To effect a Writ of Entry, the Government must establish that the
tax has been assessed; IRS has given notice and demand to the taxpayer;
the taxpayer has refused or neglected to pay; and a factual basis
(probable cause) exists for concluding that property of the taxpayer is
located on the premises. See In re Carlson, 580 F.2d 1365 (10th
Cir.1978); United States v. Shriver, Jr., 645 F.2d 221 (4th
Cir.1981). The Government need not establish that there are exigent
circumstances. Nevertheless, the United States Attorney should
determine that the taxpayer is, indeed, recalcitrant, and that the
revenue officer has been unable to gain voluntary admittance to the
property for purpose of seizure.|
In some districts, judges refer applications for Writs of Entry to
the local U.S. Magistrate Judge. That procedure is permissible under
the Federal Magistrates Act, 28 U.S.C. § 636(b). See Mathews v.
Weber, 423 U.S. 261 (1976).
In order to effectively support the collection efforts of the IRS,
it is important that the United States Attorney review the proposed
pleadings and submit them to the court in an expeditious manner.
[added September 2007]