This doesn't answer your question...but
Does the IRS have authority without a court order? Does the property have to be turned over without a court order? Are the rights, as guaranteed by the United States Constitution, violated?
The IRS frequently serves levy notices on third parties who may be holding your property. The IRS knows that all of the notices of levy that are sent to you or your employer are incorrect unless it is for property subject to levy upon which levy has been made.
The Code is clear that IRS agents should take their case to court just like any other agency* that wants to garnish property to allow you to be heard and to ensure your rights to due process will not be violated. This can be understood by reading IRC section 7608 wherein Congress clearly instructs and outlines the revenue agents/officers authority. And, indeed this explains what the IRS agents are supposed to do in every case. To enforce collection of a delinquent tax, the IRS must be authorized and you must have a liability.
Sending a Notice of Levy, is not sending a levy, and is not sufficient to reach private property, unless the property is already in the custody and control of the Secretary. The procedure to reach property in the private sector by suit is given in the Internal Revenue Code under Code sections 7401 and 7403, as follows:
SECTION 7401, Authorization.
No civil action for the collection or recovery of taxes, or of any fine, penalty, or forfeiture,
shall be commenced unless the Secretary authorizes or sanctions the proceedings and the Attorney General or his delegate directs that the action be commenced.
And section 7403, as follows:
SECTION 7403, Action to enforce lien or to subject property to Payment of tax.
(a) Filing - In any case where there has been a refusal or neglect to pay any tax, or to discharge any liability in respect thereof, whether or not levy has been made, the Attorney General or his delegate, at the request of the Secretary, may direct a civil action to be filed in a district court of the United States to enforce the lien of the United States under this title with respect to such a tax or liability or to subject any property, of whatever nature, of the delinquent, or in which he has any right, title, or interest, to the payment of such tax or liability. For purposes of the preceding sentence, any acceleration of payment under section 6166(g) shall be treated as a neglect to pay tax.
(b) Parties - All persons having liens upon or claiming any interest in the property involved in such action shall be made parties thereto.
(c) Adjudication and decree - The court shall, after the parties have been duly notified of the action, proceed to adjudicate all matters involved therein and finally determine the merits of all claims to and liens upon the property, and, in all cases where a claim or interest of the United States therein is established, may decree a sale of such property, by the proper officer of the court, and a distribution of the proceeds of such sale according to the findings of the court in respect to the interests of the parties and of the United States. If the property is sold to satisfy a first lien held by the United States, the United States may bid at the sale such sum, not exceeding the amount of such lien with expenses of sale, as the Secretary directs.
This is the due process written into the Internal Revenue Code as mandated by the Fourth Amendment to the Constitution of the United States of America. If the IRS wants to enforce collection of a tax, they have to file suit in Federal District Court, obtain a judgment, and execute the judgment with a court order to lawfully enforce the collection of the delinquent tax. The only, obvious exception to this is when the Secretary already has possession of some property. In that case no court order is needed to reach the property since the property is already possessed
Please note that a "Notice of Levy" is not a levy or seizure. The "Notice of Levy" has no legal effect in the private sector unless it is accompanied with a Judicial Court Order and a "Notice of Seizure." The following cites will demonstrate that a "Notice of Levy" carries no authority to "Levy" and that a "Levy" must be done through "seizure" of the property.
"A 'Levy' for delinquent taxes requires that property be brought into legal custody through seizure, actual or constructive, and is absolute appropriation of property levied on, and a mere NOTICE OF INTENT TO LEVY DOES NOT CONSTITUTE A LEVY" (Emphasis added). Freeman v. Mayer 152 F. Supp. 383, Affd 253 F.2d 295 (3rd Circuit 1958).
"A 'Levy' requires that the property be brought into legal custody through seizure, actual or constructive, and is absolute appropriation in law of property levied on, and MERE NOTICE OF INTENT TO LEVY IS INSUFFICIENT" (Emphasis added). United States v. O'Dell, 160 F.2d 304, 307 (6th Circuit 1947).
The IRS is to comply strictly to the conditions imposed by statute in the seizure and levy process. Goodwin v. United States, 935 F2d 1061, (9th Cir. 1991). A stickler for enforcing the statutory notice it is entitled to receive, the government should be no less punctilious with respect to the statutory notice it is required to give. Kulway v. United States, 917 F2d 729, 735 (2nd Cir. 1990).
"Notice of levy does not constitute levy, since, for there to be levy, property must be brought into legal custody through actual or constructive seizure." Callahan v. Haxton (184, MD Fla) 84-2 USTC.
I have a lot more if needed.
