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
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
(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
"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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