§ 6323. Validity and priority against certain persons
(a)
Purchasers, holders of security interests, mechanic’s lienors, and judgment lien creditors
The lien imposed by section
6321 shall not be valid as against any purchaser, holder of a security interest, mechanic’s lienor, or judgment lien creditor until notice thereof which meets the requirements of subsection (f) has been filed by the Secretary.
(b)
Protection for certain interests even though notice filed
Even though notice of a lien imposed by section
6321 has been filed, such lien shall not be valid—
(1)
Securities
With respect to a security (as defined in subsection (h)(4))—
(2)
Motor vehicles
With respect to a motor vehicle (as defined in subsection (h)(3)), as against a purchaser of such motor vehicle, if—
(3)
Personal property purchased at retail
With respect to tangible personal property purchased at retail, as against a purchaser in the ordinary course of the seller’s trade or business, unless at the time of such purchase such purchaser intends such purchase to (or knows such purchase will) hinder, evade, or defeat the collection of any tax under this title.
(4)
Personal property purchased in casual sale
With respect to household goods, personal effects, or other tangible personal property described in section
6334
(a) purchased (not for resale) in a casual sale for less than $1,000, as against the purchaser, but only if such purchaser does not have actual notice or knowledge
(5)
Personal property subject to possessory lien
With respect to tangible personal property subject to a lien under local law securing the reasonable price of the repair or improvement of such property, as against a holder of such a lien, if such holder is, and has been, continuously in possession of such property from the time such lien arose.
(6)
Real property tax and special assessment liens
With respect to real property, as against a holder of a lien upon such property, if such lien is entitled under local law to priority over security interests in such property which are prior in time, and such lien secures payment of—
(A)
a tax of general application levied by any taxing authority based upon the value of such property;
(7)
Residential property subject to a mechanic’s lien for certain repairs and improvements
With respect to real property subject to a lien for repair or improvement of a personal residence (containing not more than four dwelling units) occupied by the owner of such residence, as against a mechanic’s lienor, but only if the contract price on the contract with the owner is not more than $5,000.
(8)
Attorneys’ liens
With respect to a judgment or other amount in settlement of a claim or of a cause of action, as against an attorney who, under local law, holds a lien upon or a contract enforcible against such judgment or amount, to the extent of his reasonable compensation for obtaining such judgment or procuring such settlement, except that this paragraph shall not apply to any judgment or amount in settlement of a claim or of a cause of action against the United States to the extent that the United States offsets such judgment or amount against any liability of the taxpayer to the United States.
(9)
Certain insurance contracts
With respect to a life insurance, endowment, or annuity contract, as against the organization which is the insurer under such contract, at any time—
(c)
Protection for certain commercial transactions financing agreements, etc.
(1)
In general
To the extent provided in this subsection, even though notice of a lien imposed by section
6321 has been filed, such lien shall not be valid with respect to a security interest which came into existence after tax lien filing but which—
(2)
Commercial transactions financing agreement
For purposes of this subsection—
(A)
Definition
The term “commercial transactions financing agreement” means an agreement (entered into by a person in the course of his trade or business)—
(i)
to make loans to the taxpayer to be secured by commercial financing security acquired by the taxpayer in the ordinary course of his trade or business, or
(ii)
to purchase commercial financing security (other than inventory) acquired by the taxpayer in the ordinary course of his trade or business;
but such an agreement shall be treated as coming within the term only to the extent that such loan or purchase is made before the 46th day after the date of tax lien filing or (if earlier) before the lender or purchaser had actual notice or knowledge of such tax lien filing.
(B)
Limitation on qualified property
The term “qualified property”, when used with respect to a commercial transactions financing agreement, includes only commercial financing security acquired by the taxpayer before the 46th day after the date of tax lien filing.
(3)
Real property construction or improvement financing agreement
For purposes of this subsection—
(A)
Definition
The term “real property construction or improvement financing agreement” means an agreement to make cash disbursements to finance—
For purposes of clause (iii), the furnishing of goods and services shall be treated as the disbursement of cash.
(B)
Limitation on qualified property
The term “qualified property”, when used with respect to a real property construction or improvement financing agreement, includes only—
(i)
in the case of subparagraph (A)(i), the real property with respect to which the construction or improvement has been or is to be made,
(iii)
in the case of subparagraph (A)(iii), property subject to the lien imposed by section
6321 at the time of tax lien filing and the crop or the livestock or other animals referred to in subparagraph (A)(iii).
(4)
Obligatory disbursement agreement
For purposes of this subsection—
(A)
Definition
The term “obligatory disbursement agreement” means an agreement (entered into by a person in the course of his trade or business) to make disbursements, but such an agreement shall be treated as coming within the term only to the extent of disbursements which are required to be made by reason of the intervention of the rights of a person other than the taxpayer.
(B)
Limitation on qualified property
The term “qualified property”, when used with respect to an obligatory disbursement agreement, means property subject to the lien imposed by section
6321 at the time of tax lien filing and (to the extent that the acquisition is directly traceable to the disbursements referred to in subparagraph (A)) property acquired by the taxpayer after tax lien filing.
(C)
Special rules for surety agreements
Where the obligatory disbursement agreement is an agreement ensuring the performance of a contract between the taxpayer and another person—
(i)
the term “qualified property” shall be treated as also including the proceeds of the contract the performance of which was ensured, and
(ii)
if the contract the performance of which was ensured was a contract to construct or improve real property, to produce goods, or to furnish services, the term “qualified property” shall be treated as also including any tangible personal property used by the taxpayer in the performance of such ensured contract.
(d)
45-day period for making disbursements
Even though notice of a lien imposed by section
6321 has been filed, such lien shall not be valid with respect to a security interest which came into existence after tax lien filing by reason of disbursements made before the 46th day after the date of tax lien filing, or (if earlier) before the person making such disbursements had actual notice or knowledge of tax lien filing, but only if such security interest—
(1)
is in property (A) subject, at the time of tax lien filing, to the lien imposed by section
6321, and (B) covered by the terms of a written agreement entered into before tax lien filing, and
(e)
Priority of interest and expenses
If the lien imposed by section
6321 is not valid as against a lien or security interest, the priority of such lien or security interest shall extend to—
(2)
the reasonable charges and expenses of an indenture trustee or agent holding the security interest for the benefit of the holder of the security interest,
(3)
the reasonable expenses, including reasonable compensation for attorneys, actually incurred in collecting or enforcing the obligation secured,
(4)
the reasonable costs of insuring, preserving, or repairing the property to which the lien or security interest relates,
(6)
amounts paid to satisfy any lien on the property to which the lien or security interest relates, but only if the lien so satisfied is entitled to priority over the lien imposed by section
6321,
to the extent that, under local law, any such item has the same priority as the lien or security interest to which it relates.
(f)
Place for filing notice; form
(1)
Place for filing
The notice referred to in subsection (a) shall be filed—
(A)
Under State laws
(i)
Real property
In the case of real property, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated; and
(ii)
Personal property
In the case of personal property, whether tangible or intangible, in one office within the State (or the county, or other governmental subdivision), as designated by the laws of such State, in which the property subject to the lien is situated, except that State law merely conforming to or reenacting Federal law establishing a national filing system does not constitute a second office for filing as designated by the laws of such State; or
(2)
Situs of property subject to lien
For purposes of paragraphs (1) and (4), property shall be deemed to be situated—
(B)
Personal property
In the case of personal property, whether tangible or intangible, at the residence of the taxpayer at the time the notice of lien is filed.
For purposes of paragraph (2)(B), the residence of a corporation or partnership shall be deemed to be the place at which the principal executive office of the business is located, and the residence of a taxpayer whose residence is without the United States shall be deemed to be in the District of Columbia.
(3)
Form
The form and content of the notice referred to in subsection (a) shall be prescribed by the Secretary. Such notice shall be valid notwithstanding any other provision of law regarding the form or content of a notice of lien.
(4)
Indexing required with respect to certain real property
In the case of real property, if—
(A)
under the laws of the State in which the real property is located, a deed is not valid as against a purchaser of the property who (at the time of purchase) does not have actual notice or knowledge of the existence of such deed unless the fact of filing of such deed has been entered and recorded in a public index at the place of filing in such a manner that a reasonable inspection of the index will reveal the existence of the deed, and
(B)
there is maintained (at the applicable office under paragraph (1)) an adequate system for the public indexing of Federal tax liens,
then the notice of lien referred to in subsection (a) shall not be treated as meeting the filing requirements under paragraph (1) unless the fact of filing is entered and recorded in the index referred to in subparagraph (B) in such a manner that a reasonable inspection of the index will reveal the existence of the lien.
(g)
Refiling of notice
For purposes of this section—
(1)
General rule
Unless notice of lien is refiled in the manner prescribed in paragraph (2) during the required refiling period, such notice of lien shall be treated as filed on the date on which it is filed (in accordance with subsection (f)) after the expiration of such refiling period.
(2)
Place for filing
A notice of lien refiled during the required refiling period shall be effective only—
(B)
in any case in which, 90 days or more prior to the date of a refiling of notice of lien under subparagraph (A), the Secretary received written information (in the manner prescribed in regulations issued by the Secretary) concerning a change in the taxpayer’s residence, if a notice of such lien is also filed in accordance with subsection (f) in the State in which such residence is located.
(h)
Definitions
For purposes of this section and section
6324—
(1)
Security interest
The term “security interest” means any interest in property acquired by contract for the purpose of securing payment or performance of an obligation or indemnifying against loss or liability. A security interest exists at any time
(A)
if, at such time, the property is in existence and the interest has become protected under local law against a subsequent judgment lien arising out of an unsecured obligation, and
(2)
Mechanic’s lienor
The term “mechanic’s lienor” means any person who under local law has a lien on real property (or on the proceeds of a contract relating to real property) for services, labor, or materials furnished in connection with the construction or improvement of such property. For purposes of the preceding sentence, a person has a lien on the earliest date such lien becomes valid under local law against subsequent purchasers without actual notice, but not before he begins to furnish the services, labor, or materials.
(3)
Motor vehicle
The term “motor vehicle” means a self-propelled vehicle which is registered for highway use under the laws of any State or foreign country.
(4)
Security
The term “security” means any bond, debenture, note, or certificate or other evidence of indebtedness, issued by a corporation or a government or political subdivision thereof, with interest coupons or in registered form, share of stock, voting trust certificate, or any certificate of interest or participation in, certificate of deposit or receipt for, temporary or interim certificate for, or warrant or right to subscribe to or purchase, any of the foregoing; negotiable instrument; or money.
(5)
Tax lien filing
The term “tax lien filing” means the filing of notice (referred to in subsection (a)) of the lien imposed by section
6321.
(6)
Purchaser
The term “purchaser” means a person who, for adequate and full consideration in money or money’s worth, acquires an interest (other than a lien or security interest) in property which is valid under local law against subsequent purchasers without actual notice. In applying the preceding sentence for purposes of subsection (a) of this section, and for purposes of section
6324—
which is not a lien or security interest shall be treated as an interest in property.
(i)
Special rules
(1)
Actual notice or knowledge
For purposes of this subchapter, an organization shall be deemed for purposes of a particular transaction to have actual notice or knowledge of any fact from the time such fact is brought to the attention of the individual conducting such transaction, and in any event from the time such fact would have been brought to such individual’s attention if the organization had exercised due diligence. An organization exercises due diligence if it maintains reasonable routines for communicating significant information to the person conducting the transaction and there is reasonable compliance with the routine. Due diligence does not require an individual acting for the organization to communicate information unless such communication is part of his regular duties or unless he has reason to know of the transaction and that the transaction would be materially affected by the information.
(3)
Forfeitures
For purposes of this subchapter, a forfeiture under local law of property seized by a law enforcement agency of a State, county, or other local governmental subdivision shall relate back to the time of seizure, except that this paragraph shall not apply to the extent that under local law the holder of an intervening claim or interest would have priority over the interest of the State, county, or other local governmental subdivision in the property.
(4)
Cost-of-living adjustment
In the case of notices of liens imposed by section
6321 which are filed in any calendar year after 1998, each of the dollar amounts under paragraph (4) or (7) of subsection (b) shall be increased by an amount equal to—
(B)
the cost-of-living adjustment determined under section
1
(f)(3) for the calendar year, determined by substituting “calendar year 1996” for “calendar year 1992” in subparagraph (B) thereof.
If any amount as adjusted under the preceding sentence is not a multiple of $10, such amount shall be rounded to the nearest multiple of $10.
(j)
Withdrawal of notice in certain circumstances
(1)
In general
The Secretary may withdraw a notice of a lien filed under this section and this chapter shall be applied as if the withdrawn notice had not been filed, if the Secretary determines that—
(A)
the filing of such notice was premature or otherwise not in accordance with administrative procedures of the Secretary,
(B)
the taxpayer has entered into an agreement under section
6159 to satisfy the tax liability for which the lien was imposed by means of installment payments, unless such agreement provides otherwise,
(D)
with the consent of the taxpayer or the National Taxpayer Advocate, the withdrawal of such notice would be in the best interests of the taxpayer (as determined by the National Taxpayer Advocate) and the United States.
Any such withdrawal shall be made by filing notice at the same office as the withdrawn notice. A copy of such notice of withdrawal shall be provided to the taxpayer.
(2)
Notice to credit agencies, etc.
Upon written request by the taxpayer with respect to whom a notice of a lien was withdrawn under paragraph (1), the Secretary shall promptly make reasonable efforts to notify credit reporting agencies, and any financial institution or creditor whose name and address is specified in such request, of the withdrawal of such notice. Any such request shall be in such form as the Secretary may prescribe.