Consumer Bankruptcy Journal Spring 2018 | Page 12

Be Wary of Private Tax Collectors By Morgan D. King, Morgan King Company & Morgan King Law Offices Dublin, California a section of the tax code, Fair Tax Collection Practices (FTCP) 4 . The IRS will give taxpayers and their representative written notice that the accounts are being transferred to the private collection agencies. The agencies will send a second, separate letter to the taxpayer and their representative confirming this transfer. T he United States Tax Code authorizes the IRS to enter into a “qualified tax collection contract.” 1 This means private debt collectors. The only activities the IRC authorizes private debt collectors to perform in connection with tax collecting are, locating and contacting taxpayers, requesting full payment or offering installment agreements lasting up to 5 years, and obtaining financial information about the taxpayer. A New York Times article about private tax collection said: “The I.R.S. is owed about $138 billion, a sum that lawmakers are eager to reduce. To supplement the agency’s collection efforts, Congress ordered it to hire outside firms – an approach that was tried twice before, in 1996 and 2006, and then abandoned because of cost overruns and concerns about abuses.” Consequently, the IRS has authorized 4 private debt collectors to collect overdue taxes. 2 As part of this arrangement, private collectors are subject to the Fair Debt Collection Practices Act (“FDCPA”) 3 , as well as 12 CONSUMER BANKRUPTCY JOURNAL The provisions of both statutes prescribe a range of collection activities that are forbidden, including obvious ones like abusively frequent phone calls, profanity, threats of violence, obscene language, and the like. And, they both provide for damages if violation is proven. 5 Only a handful of taxpayers who consult a bankruptcy attorney will report violations of abusive tax collection. Nevertheless, this suggests several things attorneys should be aware of. 1. Both statutes provide that tax collectors cannot communicate directly with the taxpayer once they become informed the debtor is represented by counsel. 2. The FDCPA provides that the collector must cease communicating directly with the taxpayer/debtor if requested In writing. 3. The restrictions include, where the debtor would rather not deal with the private tax collector, upon written request the private collector must turn it back over to the IRS. 4. Pre-petition violations of either statute may be an opportunity to file a lawsuit on behalf of the debtor. Spring 2018 But for those who have been, there may be an opportunity to sue the private tax collector for damages. 6 Other potential violations. a. The private collector may represent that the taxpayer can have up to 7 years to pay the liability; false, payment plans may not go beyond 5 years. b. Urging the taxpayer to run up more debt in order to pay the taxes, or deplete important assets, such as drawing down a 401(k) fund, borrowing against home equity, and using credit cards to pay it. A letter from Elizabeth Warren to the New York Times scolded the private collectors from trying to pressure the taxpayer into paying by those means. There is at least one important difference between the two statutes; lawsuits based on violation of the FDCPA do not require exhaustion of administrative remedies, while suits based on the FTCP do. 7 Who do you sue if the private tax collector violates the restrictions on abusive collection practices? The law insulates the IRS from liability for any misconduct by the private collector, permitting suit to be brought against the private tax collector only, not against the United States. 8 Should we expect private tax collectors to violate either the FDCPA or the FTCP? You think? The IRS has taken some steps to rein in aggressive private tax collection, such as requiring them to submit National Association of Consumer Bankruptcy Attorneys