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Law Offices of Darrin T. Mish, P.A.(813) 229-7100

Using a Collection Due Process Hearing to Stop a Bank Levy

The CDP hearing is the strongest procedural tool a taxpayer has against a levy. It comes with a 30-day fuse.

AppealsBy Darrin T. Mish, tax attorneyUpdated 6 min read

If I could give every taxpayer facing a levy one piece of advice, it would be this: when you get a notice offering you a Collection Due Process hearing, request it. On time. In writing.

A CDP hearing does not make the debt go away. What it does is take the levy decision away from the collection employee, hand it to an independent Appeals officer, freeze levies while that happens, and give you a path to the Tax Court if Appeals gets it wrong. Nothing else in collection gives you all four.

Where the right comes from

IRC § 6330(a) says no levy may be made unless the IRS has notified you in writing of your right to a hearing at least 30 days before the first levy for the tax period. If you request a hearing in writing and state your grounds, the IRS Independent Office of Appeals must hold it (§ 6330(b)(1)). The officer must have had no prior involvement with the unpaid tax, unless you waive that (§ 6330(b)(3)).

You get one CDP hearing per tax period under § 6330 (§ 6330(b)(2)). That is why the first notice matters so much. See the final notice of intent to levy.

The 30-day request

The 30-day period starts the day after the date of the CDP notice (Treas. Reg. § 301.6330-1(c)(2)). The request must be in writing, dated, and include, under A-C1 of that regulation:

  • Your name, address, daytime phone number, and taxpayer identification number.
  • The type of tax and the tax periods.
  • A statement that you request a hearing with Appeals concerning the proposed levy.
  • The reasons you disagree with the proposed levy.
  • Your signature or your authorized representative's.

The regulation encourages Form 12153, Request for a Collection Due Process Hearing, sent to the address on the CDP notice. The mailbox and weekend rules of §§ 7502 and 7503 apply. If a timely request is missing something, the IRS will try to contact you, and you must fix it within a reasonable time.

What a timely request does to your bank account

Section 6330(e)(1) says the levy actions that are the subject of the hearing are suspended while the hearing and appeals are pending. The IRM treats a levy issued while your CDP hearing is pending as one that violates the Code and must be released (IRM 5.11.2.3.1). And IRM 5.11.2.2.1 tells revenue officers to check every communication channel, including mail, fax, and uploads, for a CDP request before issuing a levy.

One limit: § 6330(e)(2) says the suspension does not apply to a levy while an appeal is pending if the underlying liability is not at issue and the court determines the IRS has shown good cause not to suspend the levy. That is a court decision, not a collection employee's.

The suspension has a cost. The § 6502 collection statute is suspended while the hearing and appeals are pending, and it cannot expire before the 90th day after the final determination (§ 6330(e)(1)).

What you can raise

Section 6330(c)(2)(A) lets you raise "any relevant issue relating to the unpaid tax or the proposed levy," including:

  • Spousal defenses, such as innocent spouse relief.
  • Challenges to the appropriateness of collection actions, for example that levying your only operating account is more intrusive than necessary.
  • Collection alternatives, including posting a bond, substituting other assets, an installment agreement, or an offer in compromise.

The underlying liability is narrower. Under § 6330(c)(2)(B), you can dispute the tax itself only if you did not receive a statutory notice of deficiency or did not otherwise have an opportunity to dispute it. And under § 6330(c)(4), you generally cannot relitigate an issue you raised and meaningfully participated in at an earlier hearing or proceeding.

The frivolous-argument filter is real. Section 6330(g) lets the IRS disregard portions of a request that rely on positions it has identified as frivolous.

What Appeals has to do

This is the part that makes CDP worth the effort. Under § 6330(c)(3), the Appeals officer's determination must take into account:

  1. Verification that the requirements of applicable law and administrative procedure were met (§ 6330(c)(1)). Did the IRS send the right notices, to the right address, for every period?
  2. The issues you raised.
  3. Whether the proposed collection action balances the need for efficient collection "with the legitimate concern of the person that any collection action be no more intrusive than necessary."

That balancing test is where a bank levy case is often won. If you can pay over time, or the levy would take the money your business needs to stay open and keep paying current taxes, the balancing test is built for that argument.

The hearing itself

A CDP hearing is usually less formal than people expect. The regulations say a face-to-face conference is not guaranteed and that one will not be granted to discuss a collection alternative unless other taxpayers would be eligible for that alternative in similar circumstances, for example if required returns have not been filed (Treas. Reg. § 301.6330-1(d)(2), A-D8). Many hearings happen by phone and correspondence.

Prepare like it matters, because it does:

  • File any missing returns before the hearing.
  • Send a complete Collection Information Statement with proof.
  • Bring a specific proposal: a monthly payment, an offer, or a request for hardship status.
  • Identify any procedural defects you found in the notices.

After the determination

Appeals issues a notice of determination. Under § 6330(d)(1), you may petition the Tax Court for review within 30 days. Under § 6330(d)(3), Appeals keeps jurisdiction over its determination, including later hearings about collection actions taken under it and, after you exhaust administrative remedies, about a change in your circumstances.

Missed the 30 days? The equivalent hearing

If you did not request a CDP hearing on time, you can still ask for an equivalent hearing. Under Treas. Reg. § 301.6330-1(i):

  • The request must be in writing, within the one-year period beginning the day after the date of the CDP notice.
  • Appeals considers the same issues it would at a CDP hearing.
  • Appeals issues a decision letter, not a notice of determination.
  • Collection is not required to be suspended. Appeals decides case by case and may ask Collection to hold off.
  • There is generally no Tax Court review, except for certain innocent spouse determinations under § 6015.

If you sent a CDP request that turns out to be late, the regulation says the IRS will tell you and offer an equivalent hearing without a new request.

CDP vs. CAP for a bank levy

CDP (§ 6330)CAP
Deadline30 days from the CDP noticeGenerally no deadline, but act fast
Levy suspendedYes, by statuteNot by statute; under IRM 5.1.9.4.2 collection may resume unless Form 9423 is sent within days of the manager conference
Underlying liabilitySometimesNo
Tax Court reviewYesNo; Appeals' decision is binding
SpeedSlowerAppeals tries to resolve within five business days of receiving the case (IRM 5.1.9.4.4)

The CAP details are in the Collection Appeals Program for bank levies.

Thirty days. One letter. It is the cheapest insurance against a bank levy that exists.

Related: the timeline from assessment to bank levy. For more on how the firm handles levy cases, see tax levies at getirshelp.com.

Frequently asked questions

Does a CDP request unfreeze a bank account that is already levied?

Section 6330(e)(1) suspends the levy actions that are the subject of the hearing. If the IRS levied while your timely CDP request was pending, IRM 5.11.2.3.1 says that levy violates the Code and must be released. If the levy came first, ask for release on a § 6343 ground and raise it in the hearing.

What is the difference between a CDP hearing and an equivalent hearing?

An equivalent hearing considers the same issues, but Appeals issues a decision letter instead of a notice of determination, collection is not required to be suspended, and there is generally no Tax Court review (Treas. Reg. § 301.6330-1(i)). It must be requested in writing within one year after the date of the CDP notice.

Can I argue I do not owe the tax at a CDP hearing?

Only if you did not receive a statutory notice of deficiency for that liability or did not otherwise have an opportunity to dispute it (§ 6330(c)(2)(B)). Otherwise the hearing focuses on collection: alternatives, spousal defenses, and whether the levy is appropriate.

How long do I have to go to Tax Court after the hearing?

Thirty days from the determination, under § 6330(d)(1). Missing that window ends judicial review of the determination.

General information, not legal advice. Reading this page does not create an attorney-client relationship.