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jgordosea , Enrolled Agent
Category: Tax
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Experience:  I've prepared all types of taxes since 1987.
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I understand that 401(K) plans are protected from the claims

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I understand that 401(K) plans are protected from the claims of creditors. My question is how about IRAs? It's state dependent, but if the IRS is after you, can the federal government take money out of an IRA no matter what state you live in?
Submitted: 2 years ago.
Category: Tax
Expert:  jgordosea replied 2 years ago.



Indeed the Internal Revenue Service can access for levy an Individual Retirement Account regardless of what state you live in.


It is even possible that the retirement accounts can be levied, despite what you have been told about protection from creditors.

See for the IRS manual on the procedures to levy such accounts.


"These instructions cover money accumulated in a pension or retirement plan, as well as Individual Retirement Arrangements (IRAs). They do not deal with levying retirement income. See section IRM above. Also see Delegation Order 5-3 (Rev-1) at IRM


There are many employer and self-sponsored retirement vehicles that are not exempt from levy. These plans include, for example:

  • Qualified Pension, Profit Sharing, and Stock Bonus Plans under ERISA

  • IRAs

  • Retirement Plans for the Self-Employed (such as SEP-IRAs and Keogh Plans)"

Even though most creditors may not be able to collect against retirement accounts, the IRS can levy on those accounts in many cases (though other assets, if available will first be accessed).


Please ask if you need more discussion or clarification.

Thank you.


Customer: replied 2 years ago.

Thank you. How about claims of non-government creditors? 401(K) and TSP retirement plans are shielded against any non-government creditors correct?


How about IRA/ROTH IRA in the state of California? Are you aware if non-government creditors can go after those type of retirement vehicles in a lawsuit? Thank you.

Expert:  jgordosea replied 2 years ago.

Hello again,


For the complete answer to those questions we would probably need a local lawyer since, as you said, that depends on state law.


Also, from my layman understanding not all creditors are always treated the same (for example for child support).

Generally there are amounts needed for personal and family support that are exempted and can not be taken, as well.


One source of information is at


"Federal law prohibits judgment creditors from going after money in a pension plan that was set up under the Employee Retirement Income Security Act (ERISA). To be protected against creditors, your ERISA account must be either a qualified retirement plan or an employee welfare benefit plan covered by ERISA.

Examples of ERISA-qualified pension plans and benefit plans covered by ERISA include:

  • 401(K) accounts

  • pension and profit-sharing plans

  • group health and life insurance plans

  • dental and vision plans, and

  • HRAs, HSAs, and accidental death or disability benefits.

There are circumstances when a judgment creditor may be able to get to your ERISA account, such as for a domestic relation order for spousal or child support (called a "QDRO"), or an IRS tax garnishment."


So, yes, there is federal law that makes plans under ERISA not subject to most creditors.


Hope that helps as you examine the California laws.

Best wishes.





jgordosea, Enrolled Agent
Category: Tax
Satisfied Customers: 3159
Experience: I've prepared all types of taxes since 1987.
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