Sam Brotman, JD, LLM, MBA August 24, 2014 5 min read

Franchise Tax Board Wage Garnishment - Orders to Withhold

About a Franchise Tax Board Wage Garnishment

With respect to a Franchise Tax Board wage garnishment, the Franchise Tax Board can use involuntary means of delinquent tax collection if voluntary means do not work. For example, an Order To Withhold (OTW) is a one time legal order seizing 100% of the available funds from a financial institution or escrow company (also commonly known as a Franchise Tax Board wage garnishment) . Potential payors for an OTW include California banks or escrow companies holding funds (e.g., checking or savings account, or proceeds from a sale of property or another asset) of a business entity. An OTW can not be issued to a financial institution where no branches are located within California. Prior to remitting funds to the Franchise Tax Board because of a Franchise Tax Board wage garnishmen, banks are required to hold funds for 10 days from the date the OTW was received. Miscellaneous payor sources for OTW may be, but are not limited to the following:

 

• Rental income

• Escrow companies

• Oil and gas rights

• Use of patents

• Movie and television rights

• Copyrights/literary works

• Stock

 

The Franchise Tax Board must ensure due process by sending notice to business entity before issuing a Franchise Tax Board wage garnishment.The Franchise Tax Board can skip-trace to find new payors not listed on account yet. Enforcement of a Franchise Tax Board wage garnishment that attaches to non-cash assets, (stocks, securities, safe deposit boxes, etc.) is seized and sold at public auction per FTB warrant procedures. Any recipient of a levy failing to withhold and send to the Franchise Tax Board (FTB) the amount due may be liable for the amount due, even if recipient is not related to taxpayer entity. It is not necessary for the Franchise Tax Board to issue an assessment against the payor, which failed to honor the levy, before taking an involuntary action. The liability must be established and the non-complying party must be given notice and an opportunity for a hearing. In the case of a financial institution, if an OTW is mailed to the branch where the account is located or principal banking office, the financial institution is liable for a failure to withhold only to the extent that the accounts can be identified by information maintained at that location.

To establish if levy was not complied with the Franchise Tax Board can issue Subpoena Duces Tecum or simply a regular demand for information to any involved party. FTB can examine various documents, including:

• Accounts payable records

• Cancelled checks

• Checking or savings account statements

• Deposit slips

• Escrow closing statements

• Promissory notes

• Rental, installment, or lease agreements

Once FTB staff verifies payments were not sent to FTB, a letter to the non-complying party must be sent. The “Response to Order to Withhold Tax”, FTB form 4931, is sent to a non-complying party liable for the amount of the levy. The letter must be personally served or mailed via certified mail, return receipt requested. The non-complying party may request a hearing within 15 days from the date form FTB 4931 was issued. If there is no payment received, and there is no hearing requested within 15 days, or if at a hearing the non-complying party cannot substantiate a valid reason for failing to honor the levy, FTB issues an OTW against the non-complying party. Collection actions against the non-complying party's assets are taken as if the actions were being taken against the original debtor.

Receive the Best of
Brotman Law

Get this topic delivered straight to your inbox.

Book an Action Plan
avatar

Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law

COMMENTS

BECOME AN INSIDER

Our best stuff: secrets, tax saving tools, and tax defense strategies from the braintrust at Brotman Law.

  • Expanded benefits during your first consultation with the firm.
  • Priority appointment scheduling and appointment times.
  • Complementary access to our firm’s concierge services.
  • Receive updates and “insider only” tax strategies and tactics.
  • And many more benefits.

Not Sure Where to Start?

Step 1 Start Here

Start Here

These ten big ideas will change the way you think about your taxes and your business.

Start Here

Step 2 Learn About Your Situation

Learn About Your Situation

Find the articles and videos you need to make the right tax decisions in the learning center.

Visit the Learning Center

Step 3 Explore Our Services

Explore Our Services

It is not just about what we do, but who we are, why we do it, and how that benefits you.

View All Services

Step 4 Get Your Game Plan

Get Your Game Plan

Meet with us to outline your strategy. No further obligation, 100% money-back guarantee.

Book an Action Plan