- 7 - proposed levy to which the determination being appealed relates. Sec. 6330(e)(1). II. Levy Versus Offset A levy is distinguishable from an offset. See, e.g., Belloff v. Commissioner, 996 F.2d 607, 615-616 (2d Cir. 1993) (comparing discussion of "levy" in United States v. Natl. Bank of Commerce, 472 U.S. 713, 720 (1985), with "setoff" in United States v. Munsey Trust Co., 332 U.S. 234, 239 (1947)), affg. T.C. Memo. 1991-350. The Commissioner’s levy authority derives from the Code, sec. 6331, and it allows the Commissioner to proceed administratively to assert the Government’s rights in the property of the taxpayer held by any person, see United States v. Natl. Bank of Commerce, supra at 720-721. Offset is the common law right of a creditor, shared by the Government and all creditors, to apply the unappropriated moneys of the debtor in the hands of the creditor in extinguishment of the debts of the debtor’s due the creditor. United States v. Munsey Trust Co., supra at 239. Section 6402(a) contains a statutory counterpart, which authorizes the Secretary to credit a taxpayer’s overpayment of tax against any tax liability of the taxpayer. Based on the distinction between levy and offset, and the limitation of section 6330 to levy actions, we have held that the Commissioner’s application of a taxpayer’s overpayment for one taxable year to offset the taxpayer’s liability for anotherPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011