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Ask Curtis Staropoli, Esq Your Own Question

Curtis Staropoli, Esq
Curtis Staropoli, Esq, Attorney
Category: Legal
Satisfied Customers: 798
Experience:  Practicing attorney for 17 years and principal of law firm.
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Can child support services take my IRA as payment when I am

Customer Question

Can child support services take my IRA as payment when I am paying current support and arrearages? Is this a violation of civil code and the IRS codes? The IRS can not take my retirement what makes the Department of Child Support so special above all other agencies? Isn't this considered in excess of taking? Do I have grounds to win this case? I don't believe it was the intent of legislature to allow the department of child support to levy against retirement accounts.
Submitted: 5 years ago.
Category: Legal
Expert:  Curtis Staropoli, Esq replied 5 years ago.

How do you establish/fund your IRA? Was it via monthly contributons that you makde directly to the party that manages the IRA, or, was is done via a payroll deduction through your employer?

 

Are you still paying into the IRA, or, if not -- when did you stop?

 

Also, can you detail for me we what exactly child support services has done with regard to your IRA?

 

Despite all of the questions that I have asked which may be relevant to the issue you have raised depending on the answers, I will caution you generally that the law is very very unfavorable to folks who do not pay their child support, and, for this reason, you should probably not be very optimistic about protecting your IRA from child support obligations.

 

I hope this was helpful to you. If it was please remember to click "ACCEPT" on your screen to make sure that I am paid for my efforts. By clicking ACCEPT you are not giving up your right to ask more questions on this issue, and I will be happy to respond to these as well.

 

Customer: replied 5 years ago.
You actually didn't give me an answer on my question. I will try and clarify further, I have been making payments for many years now even though there are arrearages. I am fully aware that the courts do not look upon individuals favorably but I do have a unique situation in which the court is fully aware of. My question again lies within the civil codes and revenue codes. How can the department of child support be allowed to levy against my retirement acount when in fact civil codes do not allow it and revenue codes do not allow it? I have stop paying into my IRA but that is all the money I have for my retirement. I believe I have a case in civil court against the department of child support but I would like another opinion as to whether or not they can violate other codes in the process of doing this?
Customer: replied 5 years ago.

You actually didn't give me an answer on my question. I will try and clarify further, I have been making payments for many years now even though there are arrearages. I am fully aware that the courts do not look upon individuals favorably but I do have a unique situation in which the court is fully aware of. My question again lies within the civil codes and revenue codes. How can the department of child support be allowed to levy against my retirement acount when in fact civil codes do not allow it and revenue codes do not allow it? I have stop paying into my IRA but that is all the money I have for my retirement. I believe I have a case in civil court against the department of child support but I would like another opinion as to whether or not they can violate other codes in the process of doing this?

 

I forgot to mention the civil codes they are using as their basis: family code 17453 & 17522.5, if this helps.

Expert:  Curtis Staropoli, Esq replied 5 years ago.

I will try to answer your question, and the information that you provided helps.

 

However, can you please also advise of the following?

 

1. What exactly has occurred with regard to your IRA? In other words, has there actually been a levy against it, and, if so how did this levy arise (i.e., court order, action of CS department, etc.)?

 

2. If there has been a levy against your IRA, has there been any proceedings following the levy? In other words, did you challenge it in any way? Did the administrator/custodian of your IRA consider the levy valid?

 

3. In what context are the CA statutes that you cite referened?

 

In other words, it would help considerably to understand exactly how this situation arose -- answering the general question of whether the action is premissible without knowing the circumstances is not advisable.

 

Thanks

Customer: replied 5 years ago.
I received a letter from Fidelity Investments letting me know they received the levy from department of child support and referenced the codes as their basis for being able to take my retirement funds. The letter was sent to me two days ago and they are going to release my assets on 9/29/08 unless I get a court order to stop them. They did not give me any time to arrange proceedings and to argue my case on this subject matter. I believe Fidelity considers it to be valid and they told me they will make a decision on Monday. The department of Child Support believes they can do this but again, aren't they violating civil and revenue codes by doing this? I believe I have a civil case against them if in fact they do proceed with this action. I am probably one of the few pro pers that battle DCSS and I will in fact take this to that level. If I do have a vaild argument this could become a big suit and if I do win this will really cost them back payments and interest.
Expert:  Curtis Staropoli, Esq replied 5 years ago.

First, on what basis are you suggesting that DCCS is violating the "civil" code by its actions?

 

Which civil code are you referring to, and, which provisions of that code do you think are being violated? Keep in mind that the CA Code provisions that you cited previously are part of the CA "civil code", and, that they seem on a quick read to authorize the levy. If you want to argue that the levy violates the CA "civil code", you will have to explain away these provisions, and, find some that support your argument.

 

Second, with regard to the argument that DCCS is violating the "revenue code", do you have any basis for this argument? The term "revenue code" is probably most often used as a synonym for the US Tax Code, and, I am not sure by any means that the Tax Code has any provision in its volumes and volumes of regulations that "prohibit" the attachment of an IRA for the payment of child support. The Tax Code is designed to address what is and what isn't taxable and to define the regulatory scheme with regard to federal taxation -- and so, while it may state that an IRA contribution is tax deductible up to a certain dollar amount, it does not regulate whether or not an IRA can be attached for child support.

 

This may not be the answer you want to hear and I urge you to discuss the matter with a knowledgeable CA attorney, however, I cannot envision any scenario wherein the lawsuit you are contemplating has any chance of succeeding.

 

Finally, a common sense argument: Remember that an IRA is funded by the contribution of one's already-taxed earnings -- or, in other words, it is funded by the contribution of portions of one's paychecks or of one's earnings that are received in some other form. Given this fact, if the DCCS can levy your paychecks, why can't it levy portions of your paychecks that have been deposited in an IRA?

 

I hope this was helpful to you. If it was please remember to click "ACCEPT" on your screen to make sure that I am paid for my efforts. By clicking ACCEPT you are not giving up your right to ask more questions on this issue, and I will be happy to respond to these as well.

 

Customer: replied 5 years ago.
By your response and after several iterations, I can see that you really don't understand my question and could not give me an answer on this complicated development. If other agency's are not able to levy against an individuals retirement account such as the Franchise tax board and civil codes prohibit it as well, how is the department of child support able to do this? I don't know what area you specialize in but this is not a typical develpment but rather an argument I tend to pursue since it does involve three different areas: civil, revenue/tax, and family code. I have done some research with the franchise tax board which confirmed they can not touch peoples retirement account no matter how much they owe. I have talked to a civil litigative attorney and he confirmed this as well under the civil code. The only agency that seems to think they can do this and have stated their section codes in family law is DCSS. I don't believe when the law was written that the state legislature intend IRA accounts to be used as a levy or levied against wages. My argument will be with the intent of the state legislature.
Expert:  Curtis Staropoli, Esq replied 5 years ago.

I understand your question perfectly well, I'm just proefessionally skeptical about your contentions, and you have not shown me anything that would cause me to change my opinion.

 

If you can show me even one of the provisions of the "civil", "revenue" or "family code" that you claim support your contentions, perhaps I might reconsider my take on this.............and, absent this, we can agree to disagree.

 

 

 

 

 

Customer: replied 5 years ago.
In my experience over the years of battling cases as a pro per, it pays to do your homework in order to win your case. I find that most lawyers do the bare minimum or the easiest thing for a pay check rather than truly pursuing cases for justice. When an agency constantly takes advantage of individuals who are ignorant of the law and their rights, I do have a problem with that. I have witnessed many individuals in court get taken advantage by this agency. I have battled them on numerous issues and have beat them since they like to over step their boundaries and authority. I even successfully argued my case to the California Appellate courton a jurisdictional issue. What I was looking for from you was a direct answer from you on the subject rather than me providing you the answer of my research on the subject. What can you tell me what the state legislatures intent is when they wrote the law regarding levy's?
Expert:  Curtis Staropoli, Esq replied 5 years ago.

My answer is that:

 

(1) the state code provisions cited seem to authorize the levy against the retirement account, and,furthermore there is no authority to the contrary in the state code that I could identify;

 

(2) I cannot imagine that either the state or the federal revenue codes provide any authority, or any basis for policy arguments, which support -- or, which even address -- the argument that a levy against a retirement account for child support arrearages is somehow illegal.

 

(3) there is no practical or even mildly persuasive argument for exempting post-tax money placed into an IRA from child support obligations. Such a rule would actually mean that a child support avoider could take earnings clearly attachable for child support and simply put them in an IRA in order to avoid supporting his children, and, it is impossible to imagine any legislature being so obtuse as to miss this obvious point.

 

(4) with regard to your question about the "legislative history" --- "legislative history" is something that, if available, a court might look at in order to resolve a tough question of statutory interpretation. I am not sure how this even applies to your situation, although I suppose that if you challenged the CA statutes authorizing the levy, you could argue that the legislative history shows that the legislature intended that IRAs be exempt from attachment, if it actually did show this. However, if the court decided that the statute was clear on its face, you would never even get to convince it to look at the legislative history. Moreover, do you even know if the legislative history is supportive of your argument? Many times a statute does not even have any legislative history.

 

Hopefully this clarifies my opinion for you.

 

Good luck with your endeavor.

 

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