26 U.S.C. § 6863

Stay of collection of jeopardy assessments

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(a) Bond to stay collection

When an assessment has been made under section 6851, 6852, 6861 or 6862, the collection of the whole or any amount of such assessment may be stayed by filing with the Secretary, within such time as may be fixed by regulations prescribed by the Secretary, a bond in an amount equal to the amount as to which the stay is desired, conditioned upon the payment of the amount (together with interest thereon) the collection of which is stayed, at the time at which, but for the making of such assessment, such amount would be due. Upon the filing of the bond the collection of so much of the amount assessed as is covered by the bond shall be stayed. The taxpayer shall have the right to waive such stay at any time in respect of the whole or any part of the amount covered by the bond, and if as a result of such waiver any part of the amount covered by the bond is paid, then the bond shall, at the request of the taxpayer, be proportionately reduced. If any portion of such assessment is abated, the bond shall, at the request of the taxpayer, be proportionately reduced.

(b) Further conditions in case of income, estate, or gift taxesIn the case of taxes subject to the jurisdiction of the Tax Court—(1) Prior to petition to Tax Court

If the bond is given before the taxpayer has filed his petition under section 6213(a), the bond shall contain a further condition that if a petition is not filed within the period provided in such section, then the amount, the collection of which is stayed by the bond, will be paid on notice and demand at any time after the expiration of such period, together with interest thereon from the date of the jeopardy notice and demand to the date of notice and demand under this paragraph.

(2) Effect of Tax Court decision

The bond shall be conditioned upon the payment of so much of such assessment (collection of which is stayed by the bond) as is not abated by a decision of the Tax Court which has become final. If the Tax Court determines that the amount assessed is greater than the amount which should have been assessed, then when the decision of the Tax Court is rendered the bond shall, at the request of the taxpayer, be proportionately reduced.

(3) Stay of sale of seized property pending Tax Court decision(A) General ruleWhere, notwithstanding the provisions of section 6213(a), an assessment has been made under section 6851, 6852, or 6861, the property seized for the collection of the tax shall not be sold—(i) before the expiration of the periods described in subsection (c)(1)(A) and (B),(ii) before the issuance of the notice of deficiency described in section 6851(b) or 6861(b), and the expiration of the period provided in section 6213(a) for filing a petition with the Tax Court, and(iii) if a petition is filed with the Tax Court (whether before or after the making of such assessment), before the expiration of the period during which the assessment of the deficiency would be prohibited if neither sections 6851(a), 6852(a), nor 6861(a) were applicable.Clauses (ii) and (iii) shall not apply in the case of a termination assessment under section 6851 if the taxpayer does not file a return for the taxable year by the due date (determined with regard to any extensions).(B) ExceptionsSuch property may be sold if—(i) the taxpayer consents to the sale,(ii) the Secretary determines that the expenses of conservation and maintenance will greatly reduce the net proceeds, or(iii) the property is of the type described in section 6336.(C) Review by Tax Court

If, but for the application of subparagraph (B), a sale would be prohibited by subparagraph (A)(iii), then the Tax Court shall have jurisdiction to review the Secretary’s determination under subparagraph (B) that the property may be sold. Such review may be commenced upon motion by either the Secretary or the taxpayer. An order of the Tax Court disposing of a motion under this paragraph shall be reviewable in the same manner as a decision of the Tax Court.

(c) Stay of sale of seized property pending district court determination under section 7429(1) General ruleWhere a jeopardy assessment has been made under section 6862(a), the property seized for the collection of the tax shall not be sold—(A) if a civil action is commenced in accordance with section 7429(b), on or before the day on which the district court judgment in such action becomes final, or(B) if subparagraph (A) does not apply, before the day after the expiration of the period provided in section 7429(a) for requesting an administrative review, and if such review is requested, before the day after the expiration of the period provided in section 7429(b), for commencing an action in the district court.(2) Exceptions

With respect to any property described in paragraph (1), the exceptions provided by subsection (b)(3)(B) shall apply.

(Aug. 16, 1954, ch. 736, 68A Stat. 836; Pub. L. 94–455, title XII, § 1204(c)(7)–(9), title XIX, § 1906(a)(38), (b)(13)(A), Oct. 4, 1976, 90 Stat. 1698, 1830, 1834; Pub. L. 100–203, title X, § 10713(b)(2)(E), Dec. 22, 1987, 101 Stat. 1330–470; Pub. L. 100–647, title VI, § 6245(a), Nov. 10, 1988, 102 Stat. 3750; Pub. L. 101–239, title VII, § 7822(d)(2), Dec. 19, 1989, 103 Stat. 2425; Pub. L. 115–141, div. U, title IV, § 401(a)(321), Mar. 23, 2018, 132 Stat. 1199.)Editorial NotesAmendments

2018—Subsec. (a). Pub. L. 115–141 substituted “6852,” for “6852,,”.

1989—Subsec. (b)(3)(A)(iii). Pub. L. 101–239 made technical correction to Pub. L. 100–203, § 10713(b)(2)(E)(iii), see 1987 Amendment note below.

1988—Subsec. (b)(3)(C). Pub. L. 100–647 added subpar. (C).

1987—Subsec. (a). Pub. L. 100–203, § 10713(b)(2)(E)(i), substituted “6851, 6852,” for “6851”.

Subsec. (b)(3)(A). Pub. L. 100–203, § 10713(b)(2)(E)(ii), substituted “6851, 6852, or 6861” for “6851 or 6861”.

Subsec. (b)(3)(A)(iii). Pub. L. 100–203, § 10713(b)(2)(E)(iii), as amended by Pub. L. 101–239, substituted “6851(a), 6852(a), nor 6861(a)” for “6851(a) nor 6861(a)”.

1976—Subsec. (a). Pub. L. 94–455, §§ 1204(c)(7), 1906(b)(13)(A), inserted reference to section 6851, substituted “an assessment” for “a jeopardy assessment”, struck out “or his delegate” after “Secretary”, and substituted “such assessment” for “the jeopardy assessment”.

Subsec. (b)(3)(A). Pub. L. 94–455, § 1204(c)(8), substituted “an assessment has been made under section 6851 or 6861,” for “a jeopardy assessment has been made under section 6861” in provisions preceding cl. (i), added cl. (i), redesignated former cl. (i) as (ii) and substituted “before the issuance of the notice of deficiency described in section 6851(b) or 6861(b), and the expiration of the period” for “if section 6861(b) is applicable, prior to the issuance of the notice of deficiency and the expiration of the time”, redesignated former cl. (ii) as (iii) and substituted “assessment), before the expiration” for “jeopardy assessment under section 6861), prior to the expiration” and “if neither sections 6851(a) nor 6861(a) were applicable” for “if section 6861(a) were not applicable”, and inserted provisions following cl. (iii).

Subsec. (b)(3)(B)(ii). Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.

Subsec. (b)(3)(C). Pub. L. 94–455, § 1906(a)(38), struck out subpar. (C) which had limited the applicability of subpars. (A) and (B) to jeopardy assessments made on or after Jan. 1, 1955, with respect to taxes imposed by this title, and with respect to taxes imposed by the Internal Revenue Code of 1939.

Subsec. (c). Pub. L. 94–455, § 1204(c)(9), added subsec. (c).

Statutory Notes and Related SubsidiariesEffective Date of 1989 Amendment

Amendment by Pub. L. 101–239 effective as if included in the provision of the Revenue Act of 1987, Pub. L. 100–203, title X, to which such amendment relates, see section 7823 of Pub. L. 101–239, set out as a note under section 26 of this title.

Effective Date of 1988 Amendment

Pub. L. 100–647, title VI, § 6245(b), Nov. 10, 1988, 102 Stat. 3751, provided that: “The amendments made by this section [amending this section] shall take effect on the 90th day after the date of the enactment of this Act [Nov. 10, 1988].”

Effective Date of 1976 Amendment

Amendment by section 1204(c)(7)–(9) of Pub. L. 94–455 applicable with respect to action taken under section 6851, 6861, or 6862 of this title where notice and demand takes place after Feb. 28, 1977, see section 1204(d) of Pub. L. 94–455, as amended, set out as a note under section 6851 of this title.

Amendment by section 1906(a)(38), (b)(13)(A) of Pub. L. 94–455 effective on first day of first month which begins more than ninety days after Oct. 4, 1976, see section 1906(d)(1) of Pub. L. 94–455, set out as a note under section 6013 of this title.

Notes of Decisions

Cited in 23 cases, 1955–2006 · leading case: Laing v. United States, 423 U.S. 161 (1976).

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Laing v. United States, 423 U.S. 161 (1976). · cites it 2× “In addition, under § 6863 (a), 26 U. S. C. § 6863 (a), the taxpayer may post a proper bond and thereby stay collection.”

Lindsey v. United States, 448 F. Supp. 2d 37 (D.D.C. 2006). “And, because 26 U.S.C. § 6863 "bars the offering for sale of property seized until the taxpayer has had an opportunity to litigate in the Tax Court,” and the IRS District Director did not comply with these procedures, the Anti-Injunction Act did not apply.”

De West Realty Corp. v. Internal Revenue Serv., 418 F. Supp. 1274 (S.D.N.Y. 1976). “See 26 U.S.C. § 6863 (b)(3). The government contends that the sale was not made to satisfy the jeopardy assessment but to satisfy De West’s own liability for income and F.”

Hohman v. United States, 535 F. Supp. 1218 (D.D.C. 1982). · cites it 2× “26 U.S.C. § 6863 (c). The property may be sold if the taxpayer consents, the Secretary or his delegate determines that the expense of conservation and maintenance will greatly reduce the net proceeds, or the property is likely to perish.”

Williams v. United States, 373 F. Supp. 71 (D. Nev. 1973). · cites it 3× “26 U.S.C. § 6863 (b)(3) (A). 5 The opposing view would delay plaintiff’s access to the Tax Court until the end of the normal tax year (Irving v.”

Dupuy v. Superior Court, 541 P.2d 540 (Cal. 1975). “( 26 U.S.C. § 6863 (b) (3); see Federal Tax Procedure for General Practitioners (Cont.”

United States v. Mellon Bank, N. A., Appeal of Milton F. Meissner, Intervenor-Respondent, 521 F.2d 708 (3rd Cir. 1975). “See: 26 U.S.C. § 6863 (b)(3)(B). The United States cannot seize or sell items which are beyond its reach in a safe-deposit box.”

George Darnell v. L. W. Tomlinson, as Dir. of Internal Revenue, Dist. of Florida, 220 F.2d 894 (5th Cir. 1955). “§ 273(f), Internal Revenue Code of 1939, 26 U.S.C.A. § 6863 . 5 . 26 U.S.C.A. § 6861 (g).”

Bailey v. United States, 415 F. Supp. 1305 (D.N.J. 1976). “Another statute relied upon by movants is 26 U.S.C. § 6863 (b)(3). However, that section refers to stays in cases where an administrative sale threatens to take away the taxpayer’s property before a hearing can be held.”

In Re Tax Indebtedness of Gerwig, 461 F. Supp. 449 (C.D. Cal. 1978). “26 U.S.C. § 6863 (a). 3 . Since the United States Attorney proceeded in this matter ex parte, without notice to the taxpayer, the normal adversary system was not at work.”

Noel Smith v. Ernest M. Flinn, Dir. of Internal Revenue, 261 F.2d 781 (8th Cir. 1958). “This case is remanded to the District Court with directions to enter an injunction restraining the appellee, his officers, agents, employees and servants and each of them from selling any of the appellant’s property contrary to the provisions of 26 U.S.C.A. § 6863 (b)(3). It is…”

Irving v. Gray, 344 F. Supp. 567 (S.D.N.Y. 1972). “They would not, on their own theory, have the right to block the assessment or collection efforts except upon the posting of bonds, 26 U. S.C. § 6863(a); 301 F.Supp. at 1279 , measures which nobody has suggested as actually desired i,n this case.”

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— 26 U.S.C. § 6863(a) — 1 case

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