Contact Our SBA Attorneys for Nationwide Representation of SBA and Treasury Debt Problems
Book a Consultation CallThe Debt Collection Act of 1982 (DCA) and the Debt Collection Improvement Act of 1996 (DCIA), 31 U.S.C. § 3701, 3711-3702E authorizes the U.S. Small Business Administration (SBA), by and through the Department of Treasury’s Bureau of Fiscal Service (BFS) to initiate Administrative Wage Garnishment (AWG) Proceedings in an attempt to seize your disposable wages in connection with an alleged non-tax federal debt allegedly owed to the SBA. 31 C.F.R. § 285 et seq.
Typically, a written notice is sent to your last known address on file with the federal creditor agency. The notice provides information as to the amount claimed, the federal creditor agency demanding restitution and an opportunity for you to submit a formal "Request for Hearing." These are very important rights which you should not simply ignore or take lightly. Because, if you fail to adequately respond to the notice by defending the allegations on the merits or miss the deadline to submit the Request for Hearing, an AWG order will be issued against your paycheck. As a result, it is much more difficult to petition for a release or reduction of an AWG order against your paychecks as opposed to defending against it before one is issued.
Generally, there are three (3) grounds or defenses available for you to assert in an AWG Hearing. You can challenge the existence or legal enforceability of the debt based on applicable federal or state law, dispute the amount of the debt (including the administrative fees and costs) and/or prove that the AWG order to be issued will cause you severe financial hardship.
Citing “financial hardship” as a defense to the AWG order is one of the more popular challenges asserted. Applicable federal government regulations, rules and policies define “financial hardship” as the inability to pay for: (i) food and clothing; (ii) out of pocket health care expenses; (iii) housing and utilities; and (iv) transportation. For all federal debts (tax and non-tax), the Federal Government reviews petitions for relief from forcible collection action based on financial hardship by assessing your expenses as against the IRS’s financial collection standards (a bureau of the Treasury Department) as found on the IRS website page” https://www.irs.gov/Individuals/Collection-Financial-Standards.
National Standards have been established for five necessary expenses: food, housekeeping supplies, apparel and services, personal care products and services, and miscellaneous. The National Standard for Food, Clothing and Other Items includes an amount for miscellaneous expenses. This miscellaneous allowance is for expenses SBA debtors may incur that are not included in any other allowable living expense items, or for any portion of expenses that exceed the Collection Financial Standards and are not allowed under a deviation. The standards are derived from the Bureau of Labor Statistics Consumer Expenditure Survey. The survey collects information from the Nation's households and families on their buying habits (expenditures), income and household characteristics.
2. National Standards: Out-of-Pocket Health Care Expenses
Out-of-Pocket Health Care standards have been established for out-of-pocket health care expenses including medical services, prescription drugs, and medical supplies (e.g. eyeglasses, contact lenses, etc.). The table for health care allowances is based on Medical Expenditure Panel Survey data and uses an average amount per person and dependents under 65 and those individuals that are 65 and older. The out-of-pocket health care standard amount is allowed in addition to the amount you pay for health insurance.
3. Local Standards: Housing and Utilities
The housing and utilities standards are derived from U.S. Census Bureau, American Community Survey and BLS data, and are provided by state down to the county level. The standard for a particular county and family size includes both housing and utilities allowed for your primary place of residence. Housing and utilities standards are also provided for Puerto Rico. Housing and Utilities standards include mortgage or rent, property taxes, interest, insurance, maintenance, repairs, gas, electric, water, heating oil, garbage collection, residential telephone service, cell phone service, cable television, and Internet service. The tables include five categories for one, two, three, four, and five or more persons in a household.
4. Local Standards: Transportation
The transportation standards for a vehicle consist of two parts: nationwide figures for monthly loan or lease payments referred to as ownership costs, and additional amounts for monthly operating costs broken down by Census Region and Metropolitan Statistical Area (MSA). A conversion chart has been provided with the standards that lists the states that comprise each Census Region, as well as the counties and cities included in each MSA. The ownership cost portion of the transportation standard, although it applies nationwide, is still considered part of the Local Standards. The ownership costs provide maximum allowances for the lease or purchase of up to two automobiles if allowed as a necessary expense. You are normally allowed one automobile. The operating costs include maintenance, repairs, insurance, fuel, registrations, licenses, inspections, parking and tolls. If you have a car payment, the allowable ownership cost added to the allowable operating cost equals the allowable transportation expense. If you have a car, but no car payment, only the operating costs portion of the transportation standard is used to figure the allowable transportation expense. In both of these cases, you are allowed the amount actually spent, or the standard, whichever is less.
There is a single nationwide allowance for public transportation based on BLS expenditure data for mass transit fares for a train, bus, taxi, ferry, etc. If you do not have a vehicle, you are allowed the standard, per household, without questioning the amount actually spent.
If you own a vehicle and uses public transportation, expenses may be allowed for both, provided they are needed for the health, and welfare of you and/or your family, or for the production of income. However, the expenses allowed would be actual expenses incurred for ownership costs, operating costs and public transportation, or the standard amounts, whichever is less.
5. Other Necessary or Conditional Expenses
Additionally, you should also explore whether you have other expenses which may meet the "necessary or conditional" expense test to argue that these other expenses ought to be factored into a severe "financial hardship" calculation. The Internal Revenue Manual (IRM) provision, 5.15.1.10 describes those other expenses which may be necessary or conditional. Other necessary expenses meet the necessary expense test and generally should be allowed. The amount allowed must be reasonable considering your individual facts and circumstances. Other conditional expenses may not meet the necessary expense test but may be allowable based on the circumstances of an individual case. There may be circumstances where expenses may be allowed even if they do not meet the necessary expense test. See IRM 5.15.1.2, Analyzing Financial Information to learn about how to argue these other conditional expenses as necessary and, therefore allowable to try and defeat an impending AWG order based on severe "financial hardship."
AWG proceedings can be very daunting. These administrative hearing proceedings generally favor the Treasury’s BFS. Don’t fall into the trap by trying to represent yourself in connection with these proceedings unless you are thoroughly familiar with the applicable federal rules and regulations and have a granular understanding of how to assert any applicable legal defenses. Otherwise, you may be better off having us represent your interests in these AWG proceedings.
Even if Treasury has started an AWG order against you, you may still be entitled to a Hearing if you failed to timely request one.
Contact us today for a Case Evaluation.
Citing “financial hardship” as a defense to the AWG order is one of the more popular challenges asserted. Applicable federal government regulations, rules and policies define “financial hardship” as the inability to pay for: (i) food and clothing; (ii) out of pocket health care expenses; (iii) housing and utilities; and (iv) transportation. For all federal debts (tax and non-tax), the Federal Government reviews petitions for relief from forcible collection action based on financial hardship by assessing your expenses as against the IRS’s financial collection standards (a bureau of the Treasury Department) as found on the IRS website page” https://www.irs.gov/Individuals/Collection-Financial-Standards.
National Standards have been established for five necessary expenses: food, housekeeping supplies, apparel and services, personal care products and services, and miscellaneous. The National Standard for Food, Clothing and Other Items includes an amount for miscellaneous expenses. This miscellaneous allowance is for expenses SBA debtors may incur that are not included in any other allowable living expense items, or for any portion of expenses that exceed the Collection Financial Standards and are not allowed under a deviation. The standards are derived from the Bureau of Labor Statistics Consumer Expenditure Survey. The survey collects information from the Nation's households and families on their buying habits (expenditures), income and household characteristics.
2. National Standards: Out-of-Pocket Health Care Expenses
Out-of-Pocket Health Care standards have been established for out-of-pocket health care expenses including medical services, prescription drugs, and medical supplies (e.g. eyeglasses, contact lenses, etc.). The table for health care allowances is based on Medical Expenditure Panel Survey data and uses an average amount per person and dependents under 65 and those individuals that are 65 and older. The out-of-pocket health care standard amount is allowed in addition to the amount you pay for health insurance.
3. Local Standards: Housing and Utilities
The housing and utilities standards are derived from U.S. Census Bureau, American Community Survey and BLS data, and are provided by state down to the county level. The standard for a particular county and family size includes both housing and utilities allowed for your primary place of residence. Housing and utilities standards are also provided for Puerto Rico. Housing and Utilities standards include mortgage or rent, property taxes, interest, insurance, maintenance, repairs, gas, electric, water, heating oil, garbage collection, residential telephone service, cell phone service, cable television, and Internet service. The tables include five categories for one, two, three, four, and five or more persons in a household.
4. Local Standards: Transportation
The transportation standards for a vehicle consist of two parts: nationwide figures for monthly loan or lease payments referred to as ownership costs, and additional amounts for monthly operating costs broken down by Census Region and Metropolitan Statistical Area (MSA). A conversion chart has been provided with the standards that lists the states that comprise each Census Region, as well as the counties and cities included in each MSA. The ownership cost portion of the transportation standard, although it applies nationwide, is still considered part of the Local Standards. The ownership costs provide maximum allowances for the lease or purchase of up to two automobiles if allowed as a necessary expense. You are normally allowed one automobile. The operating costs include maintenance, repairs, insurance, fuel, registrations, licenses, inspections, parking and tolls. If you have a car payment, the allowable ownership cost added to the allowable operating cost equals the allowable transportation expense. If you have a car, but no car payment, only the operating costs portion of the transportation standard is used to figure the allowable transportation expense. In both of these cases, you are allowed the amount actually spent, or the standard, whichever is less.
There is a single nationwide allowance for public transportation based on BLS expenditure data for mass transit fares for a train, bus, taxi, ferry, etc. If you do not have a vehicle, you are allowed the standard, per household, without questioning the amount actually spent.
If you own a vehicle and uses public transportation, expenses may be allowed for both, provided they are needed for the health, and welfare of you and/or your family, or for the production of income. However, the expenses allowed would be actual expenses incurred for ownership costs, operating costs and public transportation, or the standard amounts, whichever is less.
5. Other Necessary or Conditional Expenses
Additionally, you should also explore whether you have other expenses which may meet the "necessary or conditional" expense test to argue that these other expenses ought to be factored into a severe "financial hardship" calculation. The Internal Revenue Manual (IRM) provision, 5.15.1.10 describes those other expenses which may be necessary or conditional. Other necessary expenses meet the necessary expense test and generally should be allowed. The amount allowed must be reasonable considering your individual facts and circumstances. Other conditional expenses may not meet the necessary expense test but may be allowable based on the circumstances of an individual case. There may be circumstances where expenses may be allowed even if they do not meet the necessary expense test. See IRM 5.15.1.2, Analyzing Financial Information to learn about how to argue these other conditional expenses as necessary and, therefore allowable to try and defeat an impending AWG order based on severe "financial hardship."
AWG proceedings can be very daunting. These administrative hearing proceedings generally favor the Treasury’s BFS. Don’t fall into the trap by trying to represent yourself in connection with these proceedings unless you are thoroughly familiar with the applicable federal rules and regulations and have a granular understanding of how to assert any applicable legal defenses. Otherwise, you may be better off having us represent your interests in these AWG proceedings.
Even if Treasury has started an AWG order against you, you may still be entitled to a Hearing if you failed to timely request one.
Contact us today for a Case Evaluation.
Client's small business obtained an SBA COVID EIDL for $301,000 pledging collateral by executing the Note, Unconditional Guarantee and Security Agreement. The business defaulted on the loan and the SBA CESC called the Note and Guarantee, accelerated the principal balance due, accrued interest and retracted the 30-year term schedule.
The loan was transferred to the Treasury's Bureau of Fiscal Service which resulted in the statutory addition of $90,000+ in administrative fees, costs, penalties and interest with the total debt now at $391.000+. Treasury also initiated a Treasury Offset Program (TOP) levy against the client's federal contractor payments for the full amount each month - intercepting all of its revenue and pushing the business to the brink of bankruptcy.
The Firm was hired to investigate and find an alternate solution to the bankruptcy option. After submitting formal production requests for all government records, it was discovered that the SBA failed to send the required Official 60-Day Pre-Referral Notice to the borrower and guarantor prior to referring the debt to Treasury. This procedural due process violation served as the basis to submit a Cross-Servicing Dispute to recall the debt from Treasury back to the SBA and to negotiate a reinstatement of the original 30-year maturity date, a modified workout, cessation of the TOP levy against the federal contractor payments and removal of the $90,000+ Treasury-based collection fees, interest and penalties.
Clients personally guaranteed SBA 504 loan balance of $750,000. Clients also pledged the business’s equipment/inventory and their home as additional collateral. Clients had agreed to a voluntary sale of their home to pay down the balance. We intervened and rejected the proposed home sale. Instead, we negotiated an acceptable term repayment agreement and release of lien on the home.
Client personally guaranteed an SBA 7(a) loan to help with a relative’s new business venture. After the business failed, Treasury was able to secure a recurring Treasury Offset Program (TOP) levy against his monthly Social Security Benefits based on the claim that he owed over $1.2 million dollars. We initially submitted a Cross-Servicing Dispute, but then, prepared and filed an Appeals Petition with the SBA Office of Hearings and Appeals (SBA OHA). As a result of our efforts, we were able to convince the SBA to not only terminate the claimed debt of $1.2 million dollars against our client (without him having to file bankruptcy) but also refund the past recurring amounts that were offset from his Social Security Benefits in connection with the TOP levy.
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