23. Legal Standard For Orders For Entry To Effect Levy

To effect a Writ of Entry, the Government must establish that the tax has been assessed; IRS has given notice and demand to the taxpayer; the taxpayer has refused or neglected to pay; and a factual basis (probable cause) exists for concluding that property of the taxpayer is located on the premises. See In re Carlson, 580 F.2d 1365 (10th Cir.1978); United States v. Shriver, Jr., 645 F.2d 221 (4th Cir.1981). The Government need not establish that there are exigent circumstances. Nevertheless, the United States Attorney should determine that the taxpayer is, indeed, recalcitrant, and that the revenue officer has been unable to gain voluntary admittance to the property for purpose of seizure.

In some districts, judges refer applications for Writs of Entry to the local U.S. Magistrate Judge. That procedure is permissible under the Federal Magistrates Act, 28 U.S.C. § 636(b). See Mathews v. Weber, 423 U.S. 261 (1976).

In order to effectively support the collection efforts of the IRS, it is important that the United States Attorney review the proposed pleadings and submit them to the court in an expeditious manner.

[added September 2007]