I
know people who can use this decision
IMMEDIATELY!
For
example:
NOTE:
we could find NO PERTINENT CASES for
IRC section 3405!
http://www4.law.cornell.edu/uscode/26/3405.html
I
especially like Footnote 13:
[
Footnote 13 ] The garnishment of retirement
benefits is prohibited by the Social
Security Act, 49 Stat. 620, as amended,
42 U.S.C. 407 (1982 ed.); the
Railroad Retirement Act, as amended,
47 Stat. 438, 45 U.S.C. 231m(a) (1982
ed., Supp. V); the Civil Service
Retirement Act, 5 U.S.C. 8346(a);
and the Veterans' Benefits Act, 38
U.S.C. 3101(a) (1982 ed.).
[/excerpt]
Sincerely
yours,
/s/ Paul Andrew Mitchell, B.A., M.S.
Private Attorney General, Criminal
Investigator and
Federal Witness: 18 U.S.C. 1510,
1512-13, 1964(a)
http://www.supremelaw.org/decs/agency/private.attorney.general.htm
http://www.supremelaw.org/index.htm
http://www.supremelaw.org/support.policy.htm
http://www.supremelaw.org/guidelines.htm
All Rights Reserved without Prejudice
copy: SupremeLaw discussion
list and message archive
"Ernest R. Brown" <rv-travelers@sbcglobal.net>
wrote:
Paul
For
your info
Ernie
GUIDRY v. SHEET METAL WORKERS NATIONAL
PENSION FUND, 493 U.S. 365 (1990)
Footnote
1 ]
Section 206(d)(1), 29 U.S.C. 1056(d)(1)
(1982 ed.), of ERISA states: "Each
pension plan shall provide that benefits
provided under the plan may not be
assigned or alienated."
[
Footnote
3 ] Section 501(c) provides:
"Any person who embezzles, steals,
or unlawfully and willfully abstracts
or converts to his own use, or the
use of another, any of the moneys,
funds, securities, property, or other
assets of a labor organization of
which he is an officer, or by which
he is employed, directly or indirectly,
shall be fined not more than $10,000
or imprisoned for not more than five
years, or both."
[
Footnote
5 ] The first claim alleged
that Guidry had breached his fiduciary
duty to the Union in violation of
501(a) of the LMRDA, 29 U.S.C. 501(a)
(1982 ed.). App. 32-33. The second
through fifth claims asserted state
commonlaw claims under theories of
conversion, fraud, equitable restitution,
and negligence. Id., at 33-35. The
sixth claim, asserted against petitioner
and the three pension funds, did not
set forth a substantive ground for
relief. Rather, it asserted that the
District Court "must restrain
and enjoin the Pension Funds from
paying any further pension benefits
to Plaintiff Guidry until the completion
of this action and thereafter until
[the Union] is made whole for its
losses." Id., at 35.
[
Footnote
7 ] The District Court
cited Fremont v. McGraw-Edison Co.,
606 F.2d 752 (CA7 1979), cert. denied,
445 U.S.
951 (1980); Winer v. Edison
Brothers Stores Pension Plan, 593
F.2d 307 (CA8 1979); and Vink v. SHV
North America Holding Corp., 549 F.
Supp. 268 (SDNY 1982).
[
Footnote
10 ]
Treasury Department regulations state
that for tax purposes "a trust
will not be qualified unless the plan
of which the trust is a part provides
that benefits provided under the plan
may not be anticipated, assigned (either
at law or in equity), alienated or
subject to attachment, garnishment,
levy, execution or other legal or
equitable process." 26 CFR 1.401(a)-13(b)(1)
(1989).
[
Footnote
11 ] The anti-alienation
provision permits "any voluntary
and revocable assignment of not to
exceed 10 percent of any benefit payment."
ERISA 206(d)(2), 29 U.S.C. 1056(d)(2)
(1982 ed.). The Conference Report
states: "For purposes of this
rule, a garnishment or levy is not
to be considered a voluntary assignment."
H. R. Conf. Rep. No. 93-1280, p. 280
(1974).
[
Footnote
12 ] See, e. g., United
Metal Products, supra; Ellis National
Bank, supra; Tenneco Inc. v. First
Virginia Bank of Tidewater, 698 F.2d
688, 689-690 (CA4 1983). Even courts
that have recognized equitable exceptions
to the bar on alienation have assumed
that 206(d)(1) operates, as a general
matter, to proscribe garnishment of
pension benefits. See St. Paul Fire
& Marine, 752 F.2d, at 551-552;
Crawford, 259 U.S. App. D.C., at 283-284,
815 F.2d, at 121-122.
[
Footnote
13 ] The garnishment of
retirement benefits is prohibited
by the Social Security Act, 49 Stat.
620, as amended, 42 U.S.C. 407 (1982
ed.); the Railroad Retirement Act,
as amended, 47 Stat. 438, 45 U.S.C.
231m(a) (1982 ed., Supp. V); the Civil
Service Retirement Act, 5 U.S.C. 8346(a);
and the Veterans' Benefits Act, 38
U.S.C. 3101(a) (1982 ed.).
[
Footnote
15 ] Section 501(c), 29
U.S.C. 501(c) (1982 ed.), under which
petitioner was convicted, establishes
criminal penalties for embezzlement
or theft by a union officer or employee.
[
Footnote
16 ] Section 501(b), 29
U.S.C. 501(b) (1982 ed.), by its terms,
does not establish a private right
of action for a union itself. Rather,
it provides that a suit may be brought
in district court by a union member
when a union officer is alleged to
have breached his duties "and
the labor organization or its governing
board or officers refuse or fail to
sue or recover damages or secure an
accounting or other appropriate relief
within a reasonable time after being
requested to do so by any member of
the labor organization." That
language certainly contemplates that
a union may bring suit against its
officers in some forum, but it does
not expressly provide an independent
basis for federal jurisdiction. Courts
have reached inconsistent positions
on the question whether a union may
bring suit under 501. Compare Building
Material and Dump Truck Drivers, Local
420 v. Traweek, 867 F.2d 500, 506-507
(CA9 1989) (no right of action), with
Brotherhood of Railway, Airline and
Steamship Clerks, Freight Handlers,
Express and Station Employees v. Orr,
95 LRRM 2701, 2702 (ED
[493
U.S. 365, 375]
Tenn.
1977) (union has right of action to
allege a violation of 501). We need
not resolve that question here. Rather,
we assume, without deciding, that
a union may invoke the remedial provisions
of 501(b).
Uncertainty
as to the scope of 501(b) does not
call into question the subject-matter
jurisdiction of this Court or of the
District Court and the Court of Appeals.
This suit properly was brought by
petitioner under 502 of ERISA to recover
benefits allegedly due him under the
pension plans. 29 U.S.C. 1132(a)(1)(B)
and 1132(e) (1982 ed.).
[
Footnote
17 ] Indeed, the LMRDA
has its own saving clause. Section
603(a), 29 U.S.C. 523(a) (1982 ed.),
provides that "except as explicitly
provided to the contrary, nothing
in this Act shall take away any right
or bar any remedy to which members
of a labor organization are entitled
under [any] other Federal law or law
of any State." This provision
weighs against respondents' contention
that the LMRDA's authorization of
"other appropriate relief"
supersedes ERISA's express proscription
of any alienation or assignment of
pension benefits.
[
Footnote
18 ] See, for example,
104(a) of the Retirement Equity Act
of 1984, 98 Stat. 1433, 29 U.S.C.
1056(d)(3) (1982 ed., Supp. V), where
Congress mandated that the anti-alienation
provision should not apply to a "qualified
domestic relations order."
[
Footnote
19 ] In light of our disposition
of petitioner's ERISA claim, we need
not address his alternative claim
under the Consumer Credit Protection
Act. [493
U.S.
365, 378]
---
In
lawwork@yahoogroups.com,
"Clyde" <candz@m...>
wrote:
"We previously have declined
to recognize any exceptions to ERISA's
anti-alienation provision outside
the bankruptcy context."
See
Guidry v. Sheet Metal Workers Pension
Fund, 493 U.S. 365 (1990)
"Moreover, these transfer restrictions
are "enforceable," as
required by 541(c)(2).
Plan trustees or fiduciaries are required
under ERISA to discharge their duties
"in accordance with the
documents and instruments governing
the plan." 29 U.S.C.
1104(a)
(1)(D). A plan participant,
beneficiary, or fiduciary, or the
Secretary of Labor, may file a civil
action to "enjoin any act or
practice" which violates ERISA
or the terms of the plan. 29
U.S.C.
1132(a)(3) and (5).
Indeed, this Court itself vigorously
has
enforced ERISA's prohibition on the
assignment or alienation of
pension benefits, declining to recognize
any implied exceptions to
the broad statutory bar. See
Guidry v. Sheet Metal Workers Pension
Fund, 493 U.S. 365 (1990)."
" Our holding also gives full
and appropriate effect to ERISA's
goal
of protecting pension benefits.
See 29 U.S.C. 1001 (b) and (c).
This Court has described that goal
as one of ensuring that, " if
a
worker has been promised a defined
pension benefit upon retirement -
and if he has fulfilled whatever conditions
are required to obtain a
vested benefit - he actually will
receive it." Nachman Corp.
v.
Pension Benefit Guaranty Corporation,
446 U.S. 359, 375 (1980). In
furtherance of these principals, we
recently declined in Guidry,
notwithstanding strong equitable considerations
to the contrary, to
recognize an implied exception to
ERISA's antialienation provision
that would have allowed a labor union
to impose a constructive trust
on the pension benefits of a corrupt
union official. We
explained: "Section 206 (d) reflects
a considered congressional
policy choice, a decision to safeguard
a stream of income for
pensioners ( and their dependents,
who may be, and usually are,
blameless ), even if that decision
prevents others from securing
relief for the wrongs done them.
If exceptions to this policy are
to be made, it is for Congress to
undertake that task" 493 U.S.,
at
376." Patterson v. Shumate,
504 U.S. 753, 764 (1992) (Bankruptcy-
ERISA).
ERISA 2(a), 88 Stat. 832, 29
U.S.C. 1001(a). Congress
wanted to
correct this condition by making sure
that, if a worker has been
promised a defined pension benefit
upon retirement -- and if he has
fulfilled whatever conditions are
required to obtain a vested
benefit -- he actually will receive
it. The termination insurance
program is a major part of Congress'
response to the problem.
Congress provided for a minimum funding
schedule and prescribed
standards of conduct for plan administrators
to make as certain as
possible that pension fund assets
would be adequate... Throughout
the entire legislative history, from
the initial proposals to the
Conference Report, the legislators
consistently described the class
of pension benefits to be insured
as "vested benefits."
Petitioner
recognizes, as it must, that the terms
"vested" and "nonforfeitable"
were used synonymously. Nachman,
Id.
Nachman, Id. protected the plan with
insurance against bankruptcy of
the employer, protected against the
bankruptcy of the employee in
Patterson, and against constructive
trusts of criminal behavior in
Guidry. The court has consistently
said there are only two
exceptions those being 10% beneficiary
voluntary assignment and for
child support and none other.
My contention is that if there was
another exception surely the court
would have said there might be
other exceptions, but instead Congress
and the Court both insist
that the vested interest lies with
the beneficiary and not any other
entity or person.
The burden is on the corp. to show
it can be alienated, so the
fiduciary duty would be to obtain
declaratory judgment by suit in
federal courts on the issues of any
garnishment. Obviously a
conflict in law exists, an irreparable
injury and a problem with the
IRS required or implied information
reporting of retirement ERISA as
income. If the committee thinks
they, IRS or circuit court can
judicially expand the provisions of
ERISA, then surely the issue
needs to be put before the Supreme
court. Boggs v. Boggs, 520 U.S.
833 (1997) "ERISA's pension plan
anti-alienation provision is
mandatory and contains only two explicit
exceptions, see 1056(d)
(2), (d)(3)(A), which are not subject
to judicial expansion."
Title I of ERISA, 2 et seq.,
29 U.S.C. 1001 et seq., requires
administrators of all covered pension
plans to file periodic reports
with the Secretary of Labor, mandates
minimum participation, vesting
and funding schedules, establishes
standards of fiduciary conduct
for plan administrators, and provides
for civil and criminal
enforcement of the Act. Please
send a copy of that pertinent report
in the event the committee rules contrary
to my interests as
beneficiary to unalienable benefits.
"ERISA's pension plan anti-alienation
provision is mandatory and
contains only two explicit exceptions,
see 1056(d)(2), (d)(3)(A),
which are not subject to judicial
expansion." See Guidry
v. Sheet
Metal Workers Nat. Pension Fund, 493
U.S. 365, 376 (1990)....
"Besides the anti-alienation
provision, Congress has enacted other
protective measures to guarantee that
retirement funds are there
when a plan's participants and beneficiaries
expect them. There
are, for instance, minimum funding
standards for pension plans and a
pension plan termination insurance
program which guarantees benefits
in the event a plan is terminated
before being fully funded. See
1082, 1301-1461. Under respondents'
approach, retirees could find
their retirement benefits reduced
by substantial sums because they
have been diverted to testamentary
recipients."
Boggs id.
If Congress only provided two explicit
exceptions to the ERISA plans
as the court says here, it doesn't
matter who the parties are,
private or government as the same
law applies to both. No circuit
court case can overturn the Supreme
court judgments. If Congress
had sought to allow other exceptions,
they would have specified them
in the code. Since alienation
is forbidden in the interests of
providing a min. level of guaranteed
benefits, then surely they
would have listed taxation as an overriding
exemption to the plans.
They did not. The court says
it is a matter for Congress and not
the court to enlarge the provisions
of exceptions to the plans.
Congress has not done so, despite
the fact that there is a
controversy and conflict in the law
as written when viewed from the
IRC and possibly within the ERISA
itself. However it is evident
that the Supreme authority on the
law views that there are only two
exceptions, that being child support
and 10% alienation.
There is no provision in the plan
to assign benefits by unvoluntary
assignment of benefits upon any tax
levy. There is no express
provision in the IRC to assign ERISA
benefits to the IRS by
unvoluntary assignment nor is there
an express exception in ERISA to
unvoluntary assignment of benefits
to the IRS for any matter. The
code itself is completely silent on
this type of alienation of
benefits, therefore either Congress
needs to address the matter
specifically and either provide for
such exemption in ERISA code, or
provide for such explicitly in the
IRC. Such is not the case.
So, the issue is from the IRS point
of view and I maintain the 9th
Circuit errors when it contradicts
what the Supreme court has said,
saying:
"As an initial matter, the Internal
Revenue Code expressly indicates
that no other federal law shall exempt
property from the IRS's authority
to
levy a delinquent taxpayer's property
under 6331. See 26 U.S.C.
6334
(c). Moreover, ERISA's anti-alienation
clause cannot prevent the IRS from
undertaking what would otherwise be
a valid exercise of its levy
authority under 26 U.S.C. 6331,
because ERISA itself has a saving
clause
that states: "Nothing in this
subchapter [which includes the anti-
alienation provision] shall be construed
to alter, amend, modify, invalidate,
impair, or
supersede any law of the United States."
29 U.S.C. 1144(a). The only
other
circuit that has addressed this issue
reached the same conclusion, which
authority we find persuasive. See
Shanbaum v. United States, 32 F.3d
180, 182-83 (5th
Cir. 1994); cf. United States
v. Sawaf, 74 F.3d 119, 123-24 (6th
Cir. 1996)
(upholding the treasury regulation
that authorizes the IRS to levy on
the benefits
of an ERISA-governed plan and applying
that regulation to uphold the IRS's
collection against such benefits);
Anderson v. United States, 149 B.R.
591, 595
(9th Cir. BAP 1992) (upholding a tax
lien against benefits from an ERISA-
governed plan).
4 We think it is plain
that the IRS's authority to proceed
against
a delinquent taxpayer's interest in
benefits from an ERISA-governed plan
is not
constrained by ERISA's anti-alienation
provision." McIntyre v.
USA, 222 F3d 655
(9th 2002)
Here is what the IRS tax division
judgment manual tell their agents,
notice how they make their own law
by quoting the IRM which isn't
law.
"Retirement
accounts and funds such as Individual
Retirement
Accounts and 401(k) plan funds
are frequently the largest asset
and the only liquid asset in the hands
of a judgment debtor. Such
funds may not be subject to judicial
garnishment or execution, yet
the IRS can use its broad levy power
under I.R.C. 6331 to attach
the funds. Pursuant to I.R.C.
6334(c), notwithstanding any other
law of the United States, no property
or rights to property is
exempt from an IRS levy other than
the property specifically made
exempt by 6334(a). See 2 Administration,
CCH Internal Revenue
Manual, Part V, Collection Activity,
536(14).22, 536(14).5,
which
set forth internal IRS guidelines
as to when and how the IRS should
levy on retirement funds. Internal
Revenue Manual 536(14).5(1)
states:
Qualified pension, profit sharing,
stock bonus, IRA plans and
retirement plans benefiting self-employed
individuals, or interest
earned on these plans, are not exempt
from levy. However, because
the plans are established for the
taxpayer's future welfare, they
will be levied upon judiciously.
While the IRS Manual does not define
the term "judiciously" it
does
state, in paragraph 536(14).22:
Retirement plan benefits (income)
receivable from a qualified
pension fund or account, generally
will not be levied upon if the
annual benefits are $6000 or less
($500 or less per month).
Accordingly, if your investigation
discloses substantial assets or
income in a retirement or pension
fund, you should consider asking
the IRS to levy on the funds (or the
income from the funds) in
accordance with the pertinent provisions
of the IRS Manual.
"In Brunwasser v. Davis, 63 A.F.T.R.2d
(P-H) 675 (W.D. Pa.1989), the
district court denied a request for
an injunction against IRS
levies "against an individual
retirement account, retirement plan
and any other qualified pension, profit
sharing and stock bonus
plan." Similarly, in First Fed.
Savs. and Loan Ass'n v. Goldman, 644
F. Supp. 101 (W.D. Pa. 1986), the
court held that an IRS levy
attached to an IRA account because
no property or rights to property
are exempt from levy other than property
specifically exempted by
I.R.C. 6334(a).
I.R.C. 6334(a)(6) specifically
exempts from levy certain
enumerated annuity and pension payments.
The only such amounts
enumerated in 6334(a)(6), however,
are benefits under the Railroad
Retirement Act, the Railroad Unemployment
Insurance Act, special
pension payments received by a person
whose name has been entered on
the Army, Navy, Air Force, and Coast
Guard Medal of Honor roll, and
annuities based on retired or retainer
pay under chapter 73 of 10
U.S.C.
In Melechinsky v. Secretary of the
Air Force, 51 A.F.T.R.2d(P-H)
1276 (D. Conn. 1983), the district
court held that military
retirement benefits are not exempt
from an IRS levy because only
items specifically enumerated in I.R.C.
6334 are exempt from levy
and 6334 does not exempt such
benefits. Cf. United States v.
Metropolitan Life Ins. Co., 691 F.
Supp. 1339 (S.D. Ala. 1988) (IRS
levy attaches to cash surrender value
of taxpayer's life insurance
policy. IRS steps into shoes of delinquent
taxpayer and can itself
exercise taxpayer's right to compel
life insurance company to pay
cash surrender value of annuity contract)."
Administrative levy is more effective
because there are less
limitations as explained by the Collection
Judgments manual so
generally they use this blatant fraud
to get around what they can't
do in court:
"An IRS levy has a number of
advantages over judgment execution
procedures. First, a levy is a quick,
efficient, and effective means
of seizing property in order to satisfy
a tax liability. Judgment
execution procedures are somewhat
more cumbersome, requiring more
paperwork and the involvement of the
court or the marshal. Second,
some types of property can be reached
with a levy, such as a
taxpayer's interest in an IRA or qualified
pension or profit-sharing
plan, that might not be subject to
judgment execution processes
because of state exemption provisions.
A levy can even be made on
Social Security payments, although
such levies are made only in
abusive situations. Third, the
property exempt from an IRS levy is
very limited in comparison to property
exempt from judgment
execution procedures."
The 9th circuit court completely
and conveniently ignores Boggs v.
Boggs, 520 U.S. 833 (1997), relying
instead on another errant 6th
circuit court 1996 decision.
Since when does the 9th circuit
overrule the supreme court?
Obviously they like real loose
administrative procedures because
if the party holding the property
is kind enough to just hand it over,
they have it easy. Most of the
time it works their way because there
is nothing such as property
rights anymore, just a land full of
thieves.
In particular in Guidry see the notes:
11. The anti-alienation provision
permits "any voluntary and
revocable assignment of not to exceed
10 percent of any benefit
payment." 29 U.S.C.
1056(d)(2). The Conference Report
states: "For purposes of
this rule, a garnishment or levy is
not to
be considered a voluntary assignment."
H.R.Conf.Rep. No. 93-1280,
p. 280 (1974).
Now, we have established the fact
that garnishment is not a
voluntary assignment as far as ERISA
goes but that is just a example
of the law of alienation of protected
benefits for an example to
show that no one can say that you
voluntarily assign any SS benefits
as well.
13. The garnishment of retirement
benefits is prohibited by the
Social Security Act, 42 U.S.C.
407; the Railroad Retirement Act,
45 U.S.C. 231m(a) (1982 ed.
Supp. V); the Civil Service .
Retirement Act, 5 U.S.C. 8346(a);
and the Veterans' Benefits Act,
38 U.S.C. 3101(a).
The court said it not me, SS garnishment
is prohibited, and the
lawless IRS does this to countless
millions. So, I suggest you
walk
into the IRS office near you at your
convenience as they have a walk-
in policy and give them both barrels
in an administrative hearing,
and file what I call a KGB letter
with them and a First Amendment
Complaint that they are unlawfully
taking your SS and you demand a
refund unless they can show a case
which overturns what the Supreme
court has declared in this case.
Then make a record of the hearing
by secret recording and by witness
to the fact that you presented them
with the proof that they are in
error. Write it up and submit
it to them for their approval and
if
you can do it in person with a witness
so much the better especially
if the same witness you had before.
Ask them to approve it as a
true administrative record of the
meeting. If they refuse, ask
them
for a letter and you will wait till
they make it to the fact that
they have read it and refuse to sign
it although they offer no
excuse why it is not a true record.
Then do a Second First Amendment Complaint
with the facts of your
hearing and their refusal to play
fair and give due process. Tell
them you will sue them personally
as well as the Commissioner for
failure to hew to the law, and that
you will demand sanctions on
them from their pay as well as damages
for intentional irreparable
injury to you. Do also inform
them that intentional irreparable
injury is a crime and the American
people don't hire criminals, so
you will also demand their discharge
from public service. Collect
as much information on them as you
can, because you want to be
Gentle, right?
When they don't answer your second
complaint which has a default on
the first and warning to cure, then
file a default administrative
judgment against them just like they
would do to you. Because you
are paying first by force of seizure,
you can go to the District
court and they should stop it.
The DOJ openly admits they use the
administrative procedure to get
around the law as the courts will
uphold it. They can do things
by
administrative procedure that they
could never get away in the
courts. Just read the DOJ manual
on tax seizures. Anyway, seek
out
like victims and let them know about
this landmark case and what the
court has said about it.
|