Can the IRS Come Onto Your Property to Seize? Consent, Writs of Entry and the Fourth Amendment

The IRS's levy power is broad. IRC 6331(b) says it includes "distraint and seizure by any means." For a long time the government argued that phrase also authorized revenue officers to enter private property without a warrant to carry out a seizure. The Supreme Court rejected that argument in 1977, and the Internal Revenue Manual has been built around that decision ever since.

If you are facing a possible seizure, this rule determines where a revenue officer can go and what paperwork has to exist first. It sits on top of the other seizure prerequisites, such as the notices, the investigation and the approvals described in how seizure and sale works. Consent or a writ is about entry. It does not replace any of those other steps.

The case: G.M. Leasing Corp. v. United States

In G.M. Leasing Corp. v. United States, 429 U.S. 338 (1977), revenue agents seized several automobiles from public streets and parking lots, and later used locksmiths to enter a cottage used as the company's office and remove its contents, all without a warrant.

The Court treated the two actions differently. The car seizures took place on public streets, parking lots or other open places and did not involve any invasion of privacy, so they were not unconstitutional. The entry into the office was another matter. The Court said it is one thing to seize property without a warrant when it rests in an open area, and quite another to seize property on private premises to which the officer does not otherwise have access. It read IRC 6331 as authorizing all forms of seizure but as silent on intrusions into privacy, and held the warrantless entry into the office violated the Fourth Amendment. It also found no exigent circumstances, because the agents waited days before entering.

How the IRS applies the rule

IRM 5.10.1.14 cites the case and states the rule: before entering a private area, the revenue officer must have either written consent from the rightful occupant or a court order, called a writ of entry, permitting entry.

The IRM lists common features of a private area: no public access, posted warnings against entry, employee-only access, an expectation of privacy, covered or attached areas, and areas behind counters. Its examples include restaurant kitchens, service departments, private storage units, garages and other structures, retail storage areas, production areas, fenced property, cash registers, safe deposit boxes and company offices.

IRM 5.10.1.15 adds that consent or a writ is required before seizing any assets considered the contents of a residence, and that the residence's privacy extends to garages and other structures on the same land.

Vehicles

Cars follow G.M. Leasing closely. IRM 5.10.1.16 says no consent or writ is needed if the vehicle is on public property such as a street, in an unobstructed driveway or front yard, or on an unsupervised part of a third party's premises open to the public, like a public parking lot.

If there is a fence, chain or rope suggesting that entering the driveway or yard would invade privacy, or the vehicle is inside a garage or carport, consent or a writ is required. Separately, a vehicle used in the trade or business of an individual requires area director approval to seize, as explained in seizure of business assets.

Consent: what you are being asked to sign

The IRS uses Form 10404, Consent to Enter Private Premises. IRM 5.10.3.5 tells revenue officers to explain several things when they ask:

• written consent is not required for the seizure itself, only for entering private areas;
• the public areas of the property can be entered and property there seized without consent;
• you can refuse consent, and a writ of entry is the next probable step;
• if you consent and allow the property to be stored and sold on site, expenses usually go down and net proceeds go up.

The IRM also says that walking the premises with you to discuss the matter is not consent to enter for a seizure, that only the rightful occupant can give consent (usually the taxpayer, but sometimes a landlord with a right of entry under a defaulted lease), and that the seizure should generally happen within 30 working days of consent or a new consent should be obtained. And it says a signed consent is never to be held as a guarantee of performance on an installment agreement or other promise.

Under IRM 5.10.3.5.1, consent is voluntary and may be revoked at any time by the person who gave it.

If you refuse: the writ process

Refusing consent is your right, and it changes the procedure rather than ending it. IRM 5.10.3.5.1 says that within five business days of a denial, the revenue officer will start the process to get a writ, or document why not.

IRM 5.10.3.7 describes the process. The revenue officer prepares a sworn declaration on Form 14742 and a data sheet on Form 14743. These go through management and IRS counsel to the U.S. Attorney, who presents them to a district judge or magistrate. Writs are generally effective for 10 days, though the court can set a different period. Once the writ is in hand, the revenue officer is supposed to recheck the account for changes such as a bankruptcy filing or new credits. If the premises are locked and you will not meet them, the IRS may use a locksmith.

Two limits from IRM 5.10.1.14 matter. A writ of entry is not a search warrant, and a search warrant cannot be issued to a revenue officer to search private premises for property to seize. And a consent or writ is not an eviction; taking possession of real estate is a separate issue.

Skipping the consent request

Normally consent is sought first. IRM 5.10.1.14 allows exceptions where asking would jeopardize the revenue officer's safety, where attempts to contact the occupant fail, or where there are substantiated concerns that the taxpayer will refuse and then move assets out of reach while the writ is pending. In that last situation, the IRS may go straight to the court, with approval from the level of management above the group manager. The IRM calls this authority one to be used in extremely rare circumstances and says losing the element of surprise is generally not enough.

Exigent circumstances

IRM 5.10.3.6 permits entry into private premises without a writ only in exigent circumstances, defined as a seizure that must happen immediately because there is not enough time to get a writ to prevent the taxpayer from putting property out of reach. Removing property in the ordinary course of business, such as delivering merchandise to customers, is not an exigent circumstance. The revenue officer must be certain the taxpayer is putting property out of reach, get written approval from management above the group manager, and get and document counsel's advice.

G.M. Leasing shows how narrow this is. The agents saw boxes being moved at night, waited more than a day, and the Court found no exigency.

What this means for you

Consent decisions should be made deliberately, not on a doorstep. Refusing consent does not stop a seizure that is otherwise justified; it adds a court step. Granting consent can reduce costs if a seizure is going to happen anyway. Either way, the better use of the time is to put a collection alternative in front of the revenue officer before the approval package moves forward. The firm's main site has an overview of IRS levies and how they are released.

The Fourth Amendment does not make tax debts go away. It does make the government knock, and ask, and if necessary go to a judge. That procedure buys time. Use it to fix the account.