SSR 79-4: SECTIONS 207, 452(b), 459 and 462(f) (42 U.S.C. 407, 652(b), 659 and 662(f)) LEVY AND GARNISHMENT OF BENEFITS

20 CFR 404.970

SSR 79-4

Generally, Social Security benefits are exempt from execution, levy, attachment, garnishment, or other legal process, or from the operation of any bankruptcy or insolvency law. The exceptions are that benefits are subject: (1) to the authority of the Secretary of the Treasury to make levies for the collection of delinquent Federal taxes and under certain circumstances delinquent child support payments; and (2) to garnishment or similar legal process brought by an individual to enforce a child support or alimony obligation.

Section 207 of the Social Security Act provides:

"The right of any person to any future payment under this title shall not be transferable or assignable, at law or in equity, and none of the moneys paid or payable or rights existing under this title shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law."

However, section 6331 of the Internal Revenue Code of 1954 (26 U.S.C. 6331) which was enacted into law on August 16, 1954, after the enactment of section 207, gives the Secretary of the Treasury the right to levy or seize for collection of delinquent Federal taxes, property, rights to property, whether real or personal, tangible, or intangible and the right to make successive levies and seizures until the amount due, together with all expenses, is fully paid.

Section 6334 of the Internal Revenue Code of 1954 (26 U.S.C. 6334) provides in subsection (c):

"Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)."

The property exempt from levy in subsection (a) includes wearing apparel and school books; fuel, provisions, furniture, and personal effects, not to exceed $500 in value; books and tools of a trade, business, or profession, not to exceed $250 in value. Social Security benefits are not specifically exempted from levy by this subsection. Furthermore, as between conflicting treatment of the same matter by two statutes (section 207 of the Social Security Act and section 6334 of the Internal Revenue Code of 1954), the one enacted later (section 6334 of the Internal Revenue Code of 1954) would control with respect to that matter.

Therefore, since section 6334 of the Internal Revenue Code of 1954 does not specifically exempt Social Security benefits from levy, such benefit checks may be levied upon by the Secretary of the Treasury under section 6331 of the Internal Revenue Code of 1954.

In addition, section 6305 of the Internal Revenue Code of 1954 (26 U.S.C. 6305) authorizes the Secretary of the Treasury, upon receiving a certification from the Secretary of Health, Education, and Welfare under section 452(b) of the Social Security Act as to the amount of an individual's delinquent child support obligation, to assess and collect that amount in the same manner, with the same powers, and (except as provided in section 6305) subject to the same limitations as if such amount were a Federal income tax the collection of which would be jeopardized by delay. One effect of this provision is to render the Social Security benefits subject to levy by the Secretary of the Treasury for the collection of delinquent child support payments in the same manner as they would be subject to levy for collection of delinquent Federal taxes except that:

(1) no interest or penalties shall be assessed or collected,

(2) certain of the statutory provisions relating to property exempt from levy shall not apply,

(3) so much of the salary, wages, or other income of an individual as is being withheld in garnishment under a judgment entered by a court of competent jurisdiction for the support of minor children shall be exempt from the levy, and

(4) in the case of the first assessment against an individual for delinquency under a court order, collection shall be delayed for a period of 60 days immediately following notice and demand for the payment.

Further, section 459 of the Social Security Act, as enacted by P.L. 93-647, provides that a government entity which holds certain moneys payable to an individual may be compelled by legal process to make payment to another person in order to satisfy the individual's legal obligation to pay child support or alimony. This section, as amended by P.L. 95-30 states:

"Notwithstanding any other provision of law, effective January 1, 1975, moneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States or the District of Columbia (including any agency, subdivision, or instrumentality thereof) to any individual, including members of the armed services, shall be subject, in like manner and to the same extent as if the United States or the District of Columbia were a private person, to legal process brought for the enforcement, against such individual of his legal obligations to provide child support or make alimony payments."

P.L. 95-30 also added section 462 to the Social Security Act. This section defines the terms used in section 459 and specifically provides that monthly Social Security benefits are considered moneys subject to legal process brought by an individual to enforce a legal obligation to provide child support or to make alimony payments.

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