Lois E. Ordlock - Page 49

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          Ninth Circuit, to which this case is appealable, considered                 
          whether the Commissioner may levy upon ERISA-regulated pension              
          benefits to satisfy a husband’s tax debt against the claim that             
          the wife has a vested interest in half of those benefits pursuant           
          to California community property laws.  Id. at 657.  The Court of           
          Appeals noted:                                                              
               We have held before that, by granting creditors                        
               recourse against the whole community estate on debts of                
               only one spouse, California law “implicitly”                           
               establishes that spouse’s “interest” in the whole of                   
               the community property, at least to a degree sufficient                
               for the IRS to impose tax liens under the Internal                     
               Revenue Code. * * *  [Id. at 658.]                                     
          Mrs. McIntyre argued that ERISA preempts California community               
          property law and that ERISA’s antialienation provision prevented            
          the IRS from levying on the benefits from any ERISA-governed                
          pension plan.2  Id. at 659, 660.  The court stated:  “This                  
          argument relies on an over-exuberant interpretation of ERISA’s              
          anti-alienation provision” and rejected the premise that ERISA’s            
          antialienation provision would preclude operation of California             
          community property law to the extent that it would permit                   

               2  The court also rejected Mrs. McIntyre’s argument that               
          California community property law gave her a vested interest in             
          half of her husband’s pension benefits and the IRS could not                
          therefore levy on this half of the pension benefits.  McIntyre v.           
          United States, 222 F.3d 655, 658-659 (9th Cir. 2000).  The court            
          relied on Cal. Fam. Code sec. 910(a) and the reasoning in Babb v.           
          Schmidt, 496 F.2d 957 (9th Cir. 1974), and held that creditors              
          have recourse over the whole of the community property.  Id.  The           
          issue before us, regarding the preemption of community property             
          laws by sec. 6015(a) and (g), and the application of sec. 6015,             
          however, were not at issue in McIntyre.                                     





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