US Attorneys > USAM > Title 6 > Tax Resource Manual > 24.
prev | next

24.

Application of Internal Revenue Service to Enter Premises to Effect Levy

UNITED STATES DISTRICT COURT
______________ DISTRICT

IN THE MATTER OF THE NO. CV
TAX INDEBTEDNESS OF _________
APPLICATION OF INTERNAL REVENUE SERVICE
TO ENTER PREMISES TO EFFECT LEVY
AND DECLARATION IN SUPPORT THEREOF

The Internal Revenue Service hereby applies to the Court, pursuant to 26 U.S.C. sec. 7402(a) for an order authorizing entry onto the business premises of the above-captioned taxpayer for the purpose of seizing property located therein which is subject to levy in satisfaction of such taxpayer's tax liabilities, together with interest and costs as allowed by law.

The Supreme Court in G.M. Leasing Co. v. United States, 429 U.S. 338, 97 S. Ct. 619, 50 L. Ed. 2d 530 (1977), held that, in the fact situation presented therein, forcible entry by Internal Revenue Service officials onto the taxpayer's private premises without prior judicial authorization was an invasion of the taxpayer's right of privacy. A judicial warrant for tax levies was found necessary to protect against unjustified "intrusions into privacy" (G.M. Leasing Corp. v. United States, supra, at pp. 352-358), or "warrantless invasions into privacy" (Id. at page 358). Although the opinion expressly stated that 26 U.S.C. sec. 6331 provides "...an authorization for all forms of seizure," the Supreme Court found that section 6331, "...is silent on the subject of intrusions into privacy" (Id., at pp. 357, 358).

Where a taxpayer refuses to pay his tax liabilities after notice and demand therefor, a District Court has jurisdiction to issue an ex-parte entry order pursuant to section 7402(a) of the Internal Revenue Code allowing other Service to enter premises in order to collect delinquent taxes. 26 U.S.C. sec. 7402(a); Marshall v. Barlow's Inc., 436 U.S. 307, 322, fn. 19 98 S. Ct. 1816, 56 L. Ed. 2d 305 (1978); United States v. Asay, Jr., 614 F. 2d 655, 662 (9th Cir. 1980); United States v. Shriver, 645 F.2d 221 (4th Cir. 1981); United States v. Condo, 782 F.2d 1502 (9th Cir. 1986).

Written notice of any sale of seized property must, unless perishable goods are involved, be given to the taxpayer and published prior to the sale. In addition, Congress has provided appropriate remedies with respect to the seizure itself. 26 U.S.C. sections 6337, 7426.

Submitted in support of this application is the declaration of the applicant revenue officer.

DATED: __________

_________________________________
UNITED STATES ATTORNEY

_________________________________
ASSISTANT UNITED STATES ATTORNEY