Transferee Liability

First presented to the:
Annual Meeting of the
California Tax Bar & California Tax Policy Conference

Dennis Brager, Esq.*

I. Federal Tax Liens

The federal tax lien arises once there has been an assessment, demand has been made and the taxpayer has failed to pay.

As discussed below, the reach of the federal tax lien under IRC Section 6321 is very broad, reaching all of the taxpayer's property and rights to property, including after-acquired property.  When a taxpayer's property in not in the hands or name of the taxpayer, or where the taxpayer has transferred property, the Internal Revenue Service (the "Service") has used a number of theories to reach the property including:  nominee, alter-ego, fraudulent conveyance, and transferee liability.

  1. Assessment

    The assessment is made by recordin g the liability in the office of the Commissioner of Internal Revenue or his delegate. IRC § 6203. Notice of the assessment and demand for paymen t is required to be sent to the taxpayer within 60 days of the assessment. IRC § 6303(a).

  2. Period of Lien

    A lien (the statutory lien) arises upon the failure to pay after demand for payment is made. IRC § 6321. The lien da tes back to the date of assessment and extends until the lia bility for the assessed amount is satisfied, or until it becomes unenforceable by passage of tim e, generally ten years from the assessment date. IRC §§ 6322, 6502.

  3. Encumbrance of Property

    The federal tax lien attaches to all of the taxpayer’s property and rights to property. IRC § 6321. During its life it also attaches to all after- acquired property. What constitutes proper ty or rights to property is a matter of state law. If there is a property interest recognized under state law, the federal tax lien attaches to it. Federal la w determines the manner and extent to which the federal tax lien en cumbers the property interest. Aquilino v. United States , 363 US 509 (1960). See also Gardner v. United States , 34 F.3d 985 (10th Cir. 1994).

    The lien does not attach to property properly transferred from a taxpayer prior to the creation of the lien. If property to which the lien attaches is transferred, it is transfe rred subject to the lien, although the lien will not be valid as against certain interests. See IRC § 6323.

  4. Lien Priority

    The priority of the federal tax lien with respect to other encumbrances constitutes a question of federal law. See IRC § 6323. The ge neral rule with respect to competing interests is that “f irst in time is firs t in right.” The federal tax lien is perfected, however, by the filing of the notice of lien. The filed federal tax lien w ill take priority over unsecured interests in the property.

    Certain interests compete for priority with a filed federal tax lien. It is the date of filing that will determine the relative pr iority of the federal tax lien with respect to many interests. In order for a federal tax lien to compete for priority with many interests, the lien must be filed, giving the world constructive notice of the lien’s existence.

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