157

Applicability of Tax Levies to Thrift Savings Plan Accounts

Thrift Savings Plan accounts are subject to federal tax levies under sections 6331 and 

6334 of the Internal Revenue Code, notwithstanding a statute that, standing alone, 

would protect such accounts from “levy” except as expressly provided in that statute.

May 3, 2010

MEMORANDUM OPINION FOR THE CHIEF COUNSEL 

INTERNAL REVENUE SERVICE

Your office has asked whether Thrift Savings Plan (“TSP”) accounts, 

which permit tax-deferred retirement savings for certain federal employees, are subject to federal tax levies under sections 6331 and 6334 of the 

Internal Revenue Code, notwithstanding a statute that, standing alone, 

would protect such accounts from “levy” except as expressly provided in 

that statute.1 We believe that TSP accounts are subject to federal tax 

levies under the applicable statutes.

I.

Your question deals with the interaction between the federal tax levy 

provisions of the Internal Revenue Code, see 26 U.S.C. §§ 6321, 6331, 

6334 (2006), and a provision of the Federal Employees’ Retirement 

System Act of 1986 (“FERSA”), 5 U.S.C.A. § 8437(e)(2) (West 2007).

The Internal Revenue Code has long given broad authority to the 

Treasury Secretary to collect unpaid federal taxes (and associated interest, penalties, and costs) by levy. See Internal Revenue Code of 1954, 

Pub. L. No. 83-591, §§ 6331(a), 6334(c), 68A Stat. 1, 783, 785. Under 

current Code provisions, “[i]f any person liable to pay any tax neglects or 

refuses to pay the same after demand,” the amount of the liability, including interest and penalties, “shall be a lien in favor of the United States 

upon all property and rights to property, whether real or personal, 

belonging to such person.” 26 U.S.C. § 6321. If a taxpayer “liable to pay 

any tax neglects or refuses to pay the same within 10 days after notice and 

 

1 In addition to the views of your office and the Federal Retirement Thrift Investment 

Board, we have considered views submitted by the Tax Division of the Department of 

Justice.
34 Op. O.L.C. 157 (2010)

158

demand,” the Treasury Secretary may “collect such tax (and such further 

sum as shall be sufficient to cover the expenses of the levy) by levy upon 

all property and rights to property (except such property as is exempt 

under section 6334) belonging to such person or on which there is a lien 

provided in this chapter [which includes section 6321] for the payment of 

such tax.” Id. § 6331(a). The code defines such levies to “include[] the 

power of distraint and seizure by any means” and states that “[i]n any case 

in which the Secretary may levy upon property or rights to property, he 

may seize and sell such property or rights to property (whether real or 

personal, tangible or intangible).” Id. § 6331(b).

Section 6334(a) does exempt specified categories of assets from levies. 

Since 1966, such exempt assets have included “[a]nnuity or pension 

payments under the Railroad Retirement Act, benefits under the Railroad 

Unemployment Insurance Act, special pension payments received by a 

person whose name has been entered on the Army, Navy, Air Force, and 

Coast Guard Medal of Honor roll (38 U.S.C. 1562), and annuities based 

on retired or retainer pay under chapter 73 of title 10 of the United States 

Code.” 26 U.S.C. § 6334(a)(6) (codifying the Federal Tax Lien Act of 

1966, Pub. L. No. 89-719, § 104(c)(2), 80 Stat. 1125, 1137).2 Section 

6334(c) directs that “[n]otwithstanding any other law of the United States 

(including section 207 of the Social Security Act), no property or rights 

to property shall be exempt from levy other than the property specifically 

made exempt by subsection (a).” Section 6334 makes no express exemption for TSP accounts.

Congress enacted FERSA in 1986 to reform the retirement savings system for federal employees. See FERSA § 100A, reprinted in 5 U.S.C. 

§ 8401 note (2006). Among other things, FERSA established the Thrift 

Savings Plan, which enables federal employees to hold individual retirement savings accounts in the Thrift Savings Fund, an investment fund 

managed by the Federal Retirement Thrift Investment Board (“FRTIB”). 

See 5 U.S.C.A. §§ 8432, 8437 (West 2007 & West Supp. 2009); 5 U.S.C. 

§§ 8472, 8479(b) (2006). These accounts, commonly known as “Thrift 

 

2 Under section 6331(h) of the Code, certain payments otherwise covered by exemptions in section 6334(a), including “any annuity or pension payment under the Railroad 

Retirement Act or benefit under the Railroad Unemployment Insurance Act,” may be 

subject to a tax levy, generally limited to fifteen percent of the payment, 

“[n]otwithstanding section 6334.” See 26 U.S.C. § 6331(h).
Applicability of Tax Levies to Thrift Savings Plan Accounts

159

Savings Plan” or “TSP” accounts, see 5 C.F.R. § 1690.1 (2009), offer 

federal employees a tax-deferred retirement savings opportunity similar 

to that offered to private-sector employees by so-called “401(k)” plans 

established under section 401(k) of the Internal Revenue Code, 26 

U.S.C.A. § 401 (West Supp. 2009). See 5 U.S.C. § 8440 (2006); see 

also, e.g., Hewitt v. Thrift Sav. Plan, 664 F. Supp. 2d 529, 530 (D.S.C. 

2009) (describing the Thrift Savings Plan as “a retirement plan for certain 

federal government employees that was designed to allow government 

employees savings-related benefits very similar to those enjoyed by 

private sector employees whose employers offer them 401(k) retirement 

plans”); Cavanaugh v. Saul, 233 F.R.D. 21, 22 (D.D.C. 2005) (similar); 

In re Hasse, 246 B.R. 247, 252 (Bankr. E.D. Va. 2000) (similar).

FERSA includes a provision that broadly protects assets in TSP accounts from “levy,” subject to specified exceptions. It states:

Except as provided in paragraph (3), sums in the Thrift Savings Fund 

may not be assigned or alienated and are not subject to execution, 

levy, attachment, garnishment, or other legal process. For the purposes of this paragraph, a loan made from such Fund to an employee 

or Member shall not be considered to be an assignment or alienation.

5 U.S.C.A. § 8437(e)(2). The cross-referenced paragraph (3) permits legal 

process to obtain “[m]oneys due or payable from the Thrift Savings Fund” 

or the “balance” in a TSP account for enforcement of certain child support 

or alimony obligations under the Social Security Act, 42 U.S.C.A. § 659 

(West Supp. 2009); enforcement of certain victim restitution orders under 

the Mandatory Victims Restitution Act of 1996 (“MVRA”), 18 U.S.C. 

§ 3663A (2006); forfeiture under a FERSA provision, 5 U.S.C.A. 

§ 8432(g)(5), of government contributions to a TSP account based on 

the account-holder’s commission of one or more specified national security offenses; and payments required by another FERSA provision, 5 U.S.C. 

§ 8467 (2006), to satisfy certain divorce, annulment, or separation decrees 

and certain judgments for physical, sexual, or emotional abuse of a child. 

See 5 U.S.C.A. § 8437(e)(3). Paragraph (3) does not cross-reference 

section 6334 and thus does not expressly indicate that federal tax levies 

under that provision may be imposed on TSP accounts.
34 Op. O.L.C. 157 (2010)

160

II.

A.

To resolve the question here, we must reconcile these two statutes, 

each of which appears exclusive on its face. While FERSA provides that 

funds in TSP accounts shall not be subject to levy except as provided in 

5 U.S.C.A. § 8437(e)(3), the Internal Revenue Code directs that “[n]otwithstanding any other” federal law, no property is exempt from federal 

tax levies except as provided in section 6334(a) of the Code. And although both statutes include express exceptions, neither includes a crossreference to the other specifying how the two statutes should be reconciled.3

Despite the apparent conflict between the TSP provision and the federal 

tax levy statute, our “duty” is “to regard each as effective” if the two 

statutes are “capable of co-existence.” Morton v. Mancari, 417 U.S. 535, 

551 (1974). “[I]t is ‘[a] long-standing maxim of statutory construction that 

statutes are enacted in accord with the legislative policy embodied in prior 

statutes, and that therefore statutes dealing with the same subject should 

be construed together.’” Relationship Between Illegal Immigration Re-

 

3 We do not consider here the validity of federal tax levies on any state-law community 

property interests that spouses of account-holders may have in TSP accounts. In a 1981 

opinion, this Office addressed whether a federal tax levy under 26 U.S.C. § 6331(a) could 

be asserted against a tax delinquent’s community property interest in his wife’s federal 

pension, despite a provision directing that the pension benefits in question were “not 

assignable, either in law or equity, except under [certain provisions], or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be 

provided by Federal laws,” 5 U.S.C. § 8346(a) (2006). Validity of Federal Tax Lien on 

Civil Service Retirement Refund, 5 Op. O.L.C. 37, 37 (1981). We concluded that “Nevada’s community property law, in the absence of explicit legislation by Congress, has not 

created for [the delinquent taxpayer] ‘property [or] rights to property’ in his wife’s 

retirement deductions that are assailable by IRS.” Id. at 40 (quoting 26 U.S.C. § 6331(a)). 

Your office has asked us here to address the validity of “federal tax levies served on 

[FRTIB] to attach taxpayer’s rights in their individual TSP accounts in order to satisfy 

outstanding tax liabilities.” Letter for David J. Barron, Acting Assistant Attorney General, 

Office of Legal Counsel, from Clarissa C. Potter, Acting Chief Counsel, Internal Revenue 

Service at 1 (July 1, 2009). Because it appears undisputed that taxpayers’ rights in their 

own TSP accounts constitute “property [or] rights to property” of the individual taxpayer, 

we need not consider here whether the reasoning of our 1981 opinion should extend to 

any community property interests in TSP accounts.
Applicability of Tax Levies to Thrift Savings Plan Accounts

161

form and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information, __ Op. O.L.C. Supp. __, 

at *5 (May 18, 1999) (“IIRIRA Opinion”) (quoting Memorandum for 

Glen E. Pommerening, Assistant Attorney General for Administration, 

from Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Establishing a Maximum Entry Age Limit for Law Enforcement 

Officer Positions in the Department of Justice at 3 (Apr. 3, 1975), https://

www.justice.gov/olc/page/file/936041/download). In our view, the texts 

of the two statutes are properly reconciled by giving primacy to the federal tax levy provision in section 6334.

Although the TSP provision may appear absolute if read in isolation, 

section 6334(c)’s “notwithstanding” clause indicates by its terms that all 

“other law[s] of the United States,” a category that necessarily includes 

FERSA, are ineffective to bar a federal tax levy, except as provided by the 

express exceptions in section 6334(a). As a general rule “the use of such 

a ‘notwithstanding’ clause clearly signals the drafter’s intention that the 

provisions of the ‘notwithstanding’ section override conflicting provisions of any other section.” Cisneros v. Alpine Ridge Group, 508 U.S. 10, 

18 (1993); see also, e.g., IIRIRA Opinion at *7 (observing that a prefatory “notwithstanding” clause “does reflect a congressional intention to 

displace inconsistent law”). Indeed, some courts have observed that “‘a 

clearer statement’” of congressional intent to supersede all other laws 

“‘is difficult to imagine,’” see Cisneros, 508 U.S. at 18 (quoting Liberty 

Maritime Corp. v. United States, 928 F.2d 413, 416 (1991) (internal 

quotation marks omitted) (collecting other similar cases), and the Supreme Court has described the “notwithstanding” clause in section 6334 

as “direct[ing]” that “[t]he enumeration [of exceptions] contained in 

§ 6334(a) . . . is exclusive.” Drye v. United States, 528 U.S. 49, 56 (1999); 

see also In re Beam (Beam v. IRS), 192 F.3d 941, 944 (9th Cir. 1999) 

(describing section 6334 as “unambiguous” in indicating “that Congress 

clearly intended to exclude from IRS levy only those 13 categories of 

property specifically-exempted in section 6334(a)”). In contrast, while the

TSP provision appears exclusive by its own terms because it establishes 

a general bar on levies that applies “except as” provided in FERSA, this 

provision does not include language comparable to the “notwithstanding” 

clause in section 6334(c) that expressly overrides other potentially applicable statutes. The text of section 6334 thus appears to reflect a stronger 
34 Op. O.L.C. 157 (2010)

162

congressional intent to override conflicting statutes than does the text of 

the TSP provision. Cf., e.g., Beam, 192 F.3d at 944 (holding that section 

6334 overrides a bankruptcy statute directing that the bankruptcy trustee 

“shall return” certain payments to the debtor in certain circumstances); 

Crowley Caribbean Transp., Inc. v. United States, 865 F.2d 1281, 1282–

83 (D.C. Cir. 1989) (deeming it “implausible” that a statute applicable 

“notwithstanding” any other statute did not override a separate statute 

applicable “whenever” the United States took certain actions). As one 

court has put it, the “plain language [of section 6334(c)] bars interpreting 

5 U.S.C. § 8437(e)(2) as proscribing a § 6331 levy on a TSP account.” 

In re Jones (Jones v. IRS), 206 B.R. 614, 617 (Bankr. D.D.C. 1997); see 

also United States v. Laws, 352 F. Supp. 2d 707, 712 & n.7 (E.D. Va. 

2004) (holding that criminal restitution order could be enforced against 

TSP account under statute generally permitting such enforcement to the 

same extent as federal tax levies).4

It is true that FERSA was enacted after section 6334(c), which might be 

thought to make the preemptive effect of section 6334(c)’s “notwithstanding” clause “less certain,” since “[t]he drafters of [section 6334(c)] can 

hardly be said to have had [FERSA] specifically within their contemplation.” Ill. Nat’l Guard v. FLRA, 854 F.2d 1396, 1403 (D.C. Cir. 1988) 

(quoting N.J. Air Nat’l Guard v. FLRA, 677 F.2d 276, 283 (3d Cir. 

1982)); cf. United States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007) 

(en banc) (observing that courts have “determined the reach of each such 

‘notwithstanding’ clause by taking into account the whole of the statutory 

context in which it appears”). Yet in cases involving later-enacted statutes 

lacking their own applicable “notwithstanding” clauses, courts have 

deemed “notwithstanding” clauses “powerful evidence that Congress did 

not intend” other statutes, “whenever enacted,” to qualify the terms of the 

 

4 As we have recently observed, “‘notwithstanding’ phrases are best read simply to 

qualify the substantive requirement that follows.” Prioritizing Programs to Exempt Small 

Businesses from Competition in Federal Contracts, 33 Op. O.L.C. 284, 296 (2009). They 

therefore do not “support a broad construction of the substantive provision that would 

give rise to . . . inconsistencies” with other statutes. IIRIRA Opinion at *7. Here, however, the substantive clause of section 6334(c) broadly states that “no property or rights to 

property shall be exempt from levy other than the property specifically made exempt by 

subsection (a),” 26 U.S.C. § 6334(c), and there appears to be no dispute that this substantive provision is inconsistent with the TSP provision to the extent the former statute 

authorizes levies while the latter restricts them.
Applicability of Tax Levies to Thrift Savings Plan Accounts

163

earlier-enacted statute. Ill. Nat’l Guard, 854 F.2d at 1403 (quoting N.J. 

Air Nat’l Guard, 677 F.2d at 283); see also, e.g., Am. Fed’n of Gov’t 

Employees v. FLRA, 239 F.3d 66, 70 (1st Cir. 2001) (following N.J. Air 

Nat’l Guard). As some courts have explained, “[t]he [notwithstanding] 

language does not preclude a subsequent change of heart on the part of 

Congress, but it does suggest that any qualification of the terms of [the 

earlier-enacted statute] would be accepted by Congress only after some 

consideration of the factors requiring or permitting such a change.” Ill. 

Nat’l Guard, 854 F.2d at 1403 (quoting N.J. Air Nat’l Guard, 677 F.2d at 

283). Moreover, the TSP anti-levy provision, as a later-enacted statute 

that has no “notwithstanding” clause and does not expressly crossreference section 6334 or even mention any exercise of authority by the 

Secretary of Treasury, could override section 6334 and thus preclude 

federal tax levies on TSP accounts only if it effected an implied partial 

repeal of section 6334’s broad directive that “no property or rights to 

property shall be exempt from levy other than the property specifically 

made exempt by [26 U.S.C. § 6334(a)].” 26 U.S.C. § 6334(c). But “repeals by implication are not favored and will not be presumed unless the 

intention of the legislature to repeal is clear and manifest.” Hawaii v. 

Office of Hawaiian Affairs, 129 S. Ct. 1436, 1445 (2009) (internal quotation marks and brackets omitted)). Here, we believe the text and history of 

the two statutes support the conclusion that Congress, far from “clear[ly] 

and manifest[ly],” id., intending to repeal section 6334(c), in fact intended 

to permit federal tax levies on TSP accounts.5

 

5 A related principle of statutory interpretation holds that “in the absence of a clear 

intention to the contrary ‘a specific statute will not be controlled or nullified by a general 

one, regardless of the priority of enactment.’” Disclosure of Confidential Business 

Records Obtained Under the National Traffic and Motor Vehicle Safety Act, 4B Op. 

O.L.C. 735, 736 (1980) (quoting Morton, 417 U.S. at 550–51). This canon is inapplicable 

here, however, because neither statute is clearly more specific or more general than the 

other in relevant respects. On the one hand, federal tax levies under section 6334 are only 

a subset of the broader category of “levies” covered by the plain terms of the TSP provision, while on the other hand TSP accounts are only a subset of the broader category of 

“property or rights to property” covered by the plain terms of federal tax levy provisions. 

See, e.g., Restrictions on Travel by Voice of America Correspondents, 23 Op. O.L.C. 192, 

195 n.2 (1999) (observing that an issue of statutory construction could not be resolved 

“by turning to the principle that, absent a clear intention to the contrary, a specific statute 

controls a general one” because one set of applicable statutes was “more specific” on one 

question but “less specific” on another); Gulf War Veterans Health Statutes, 23 Op. 
34 Op. O.L.C. 157 (2010)

164

As one indication of section 6334(c)’s breadth, Congress amended that 

provision in 1984 expressly to include section 207 of the Social Security 

Act, 42 U.S.C. § 407 (2006), which provides that “[t]he right of any 

person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or 

payable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the 

operation of any bankruptcy or insolvency law.” Id. § 407(a). This provision itself had recently been amended to provide that “[n]o other provision of law, enacted before, on, or after April 20, 1983, may be construed 

to limit, supersede, or otherwise modify the provisions of this section 

except to the extent that it does so by express reference to this section.” 

See Social Security Amendments of 1983, Pub. L. No. 98-21, § 335(a)(2), 

97 Stat. 65, 130 (codified at 42 U.S.C. § 407(b)); Spending Reduction Act 

of 1984, Pub. L. No. 98-369, div. B, tit. VI, § 2661(o)(5), 98 Stat. 494, 

1159 (codified at 26 U.S.C. § 6334(c)); see also H.R. Rep. No. 98-861, at 

1413 (1984) (Conf. Rep.) (describing subtitle including change to section 

6334 as “contain[ing] a number of minor technical amendments to the 

Social Security Act and the Internal Revenue Code, to correct clerical and 

other minor errors either resulting from the Social Security Amendments 

of 1983, or already existing in those acts”). The “express reference” 

requirement of section 207 shows, if anything, a stronger congressional 

intent to preclude levies than the relevant prohibitory language of FERSA, 

which includes no such “express reference” requirement broadening its 

scope. Accordingly, as the en banc Ninth Circuit recently observed in an 

analysis of provisions similar to those at issue here, “[i]t would . . . be 

anomalous to interpret” section 6334(c) “as abandoning the protection 

of Social Security benefits but not of retirement plans” covered by other 

provisions that do not even have a comparable “express reference” requirement. Novak, 476 F.3d at 1048. “[B]y making clear that the ‘notwithstanding’ clause ‘includes’ the one federal anti-alienation provision 

that demands explicit statutory override, Congress manifested that [section 6334(c)] means what it says”—that absent an express exception in 

section 6334, no “property or rights to property” are exempt from levy. 

 

O.L.C. 49, 52 (1999) (rejecting application of the canon where “the two provisions are at 

the same order of specificity”).
Applicability of Tax Levies to Thrift Savings Plan Accounts

165

Id.; see also id. at 1076–77 (W. Fletcher, J., dissenting) (disagreeing with 

majority’s conclusions regarding the statutes at issue but distinguishing 

Internal Revenue Code section 6334).

Congress’s express exemption of certain retirement benefits from tax 

levies under section 6334 reinforces the view that Congress did not 

intend to provide a similar exception for TSP accounts, which are not 

expressly exempted. The four exempted retirement statutes all include 

anti-alienation provisions. While one of these statutes (the Railroad 

Retirement Act) expressly cross-references the Internal Revenue Code 

and applies “notwithstanding any other law of the United States,” see

45 U.S.C. § 231m(a) (2006), and another (the Railroad Unemployment 

Insurance Act) also applies “[n]otwithstanding any other law of the United States,” id. § 352(e), the other two employ language closely similar to 

the TSP provision. Specifically, provisions governing the exempted 

“annuities based on retired or retainer pay under chapter 73 of title 10 of 

the United States Code,” 26 U.S.C. § 6334(a)(6), provide, without any 

express carve-out for the Internal Revenue Code, that “[e]xcept as provided” elsewhere in that chapter, certain annuities are not “assignable or 

subject to execution, levy, attachment, garnishment, or other legal process.” 10 U.S.C. § 1440 (2006) (covering annuities under one subchapter 

of chapter 73); id. § 1450(i) (covering annuities under another subchapter 

of chapter 73). And provisions governing the exempted “special pension 

payments received by a person whose name has been entered on the 

Army, Navy, Air Force, and Coast Guard Medal of Honor roll (38 U.S.C. 

1562),” 26 U.S.C. § 6334(a)(6), provide that such “[s]pecial pension[s] 

shall not be subject to any attachment, execution, levy, tax, lien, or detention under any process whatever.” See 38 U.S.C. § 1562(c) (2006).

Given the breadth of section 6334(c)’s terms— “no property or rights 

to property shall be exempt from levy” except as “specifically” provided 

in section 6334(a)—and its express applicability “[n]otwithstanding any 

other law of the United States,” 26 U.S.C. § 6334(c), the express exemptions from federal tax levies in section 6334(a) cannot be understood as simply “clarify[ing]” the scope of the rule in section 6334(c). 

Am. Fed’n of Gov’t Employees v. FLRA, 702 F.2d 1183, 1187 (D.C. 

Cir. 1983) (opinion by Scalia, J.); see also Drye, 528 U.S. at 56 (concluding that “[t]he enumeration [of exceptions to section 6334(c)] 

contained in § 6334(a) . . . is exclusive”). Accordingly, section 6334’s 
34 Op. O.L.C. 157 (2010)

166

express exceptions for these pension and annuity benefits suggest that 

without the exceptions the benefits would be subject to levy under sections 6331 and 6334, despite the applicable anti-alienation provisions in 

the cross-referenced statutes governing the benefits. By the same token, 

it is unlikely Congress intended the comparable language of the TSP 

provision—“[e]xcept as provided in [section 8437(e)(3)], sums in the 

Thrift Savings Fund may not be assigned or alienated and are not subject 

to execution, levy, attachment, garnishment, or other legal process,” 

5 U.S.C.A. § 8437(e)(2)—to create an exemption from tax levies under 

the Internal Revenue Code without an express exemption in section 6334. 

In other words, there would be no apparent need for the express exemption for the retirement benefits listed in section 6334(a)(6) if language 

such as that in the TSP provision sufficed on its own to establish such an 

exemption.

The relevant legislative history of the two statutes accords with our 

construction of them. With respect to section 6334, the legislative history 

plainly shows that this provision should override other statutes. According 

to the committee reports on the 1954 Internal Revenue Code, Congress 

intended section 6334(c) to “make[] it clear that no other provision of 

Federal law shall exempt property” from federal tax levies. See H.R. Rep. 

No. 83-1337, at A409 (1954) (House Ways and Means Committee report 

on Internal Revenue Code of 1954); S. Rep. No. 83-1622, at 578 (1954) 

(Senate Finance Committee report on Internal Revenue Code of 1954). 

And with respect to FERSA, the legislative history shows that Congress 

“patterned” the Thrift Savings Plan “after [retirement savings plans] 

found among large employers in private industry.” See S. Rep. No. 99-

166, at 48 (1985); see also H.R. Rep. No. 99-606, at 134 (1986) (Conf. 

Rep.) (observing that “[t]he tax-deferred features of the plan . . . make the 

Thrift Savings Plan economically attractive to employees” and that 

“[t]hese popular tax-deferred savings plans should be as available to 

Federal employees as they are to private sector employees”); S. Rep. No. 

99-302, at 134 (1986) (Conf. Rep.) (same). Similar private-sector plans 

are generally governed by the Employee Retirement Income Security Act 

of 1974 (“ERISA”), 29 U.S.C.A. §§ 1001–1461 (West 2008 & West 

Supp. 2009; West 2009), which includes its own anti-alienation provision 

directing that “[e]ach pension plan shall provide that benefits provided 

under the plan may not be assigned or alienated.” See id. § 1056(d)(1). 
Applicability of Tax Levies to Thrift Savings Plan Accounts

167

Courts have construed section 6334 to permit tax levies on plans covered 

by this provision. See, e.g., United States v. Hosking, 567 F.3d 329, 335 

(7th Cir. 2009); United States v. Taylor, 338 F.3d 947, 950 n.3 (8th Cir. 

2003); McIntyre v. United States (In re McIntyre), 222 F.3d 655, 660 

(9th Cir. 2000); United States v. Sawaf, 74 F.3d 119, 124 (6th Cir. 1996);

Shanbaum v. United States, 32 F.3d 180, 183 (5th Cir. 1994); United 

States v. Rogers, 558 F. Supp. 2d 774, 786 n.1 (N.D. Ohio 2008); see 

also 26 C.F.R. § 1.401(a)-13(b) (providing that certain qualified ERISA 

plans must provide that “benefits provided under the plan may not be 

anticipated, assigned (either at law or in equity), alienated or subject to 

attachment, garnishment, levy, execution or other legal or equitable process,” but indicating that such plans “shall not preclude . . . [t]he enforcement of a Federal tax levy made pursuant to section 6331”). These 

courts, to be sure, have relied in part on ERISA’s savings clause, which 

generally provides that “[n]othing in [ERISA] shall be construed to alter, 

amend, modify, invalidate, impair, or supersede any law of the United 

States.” 29 U.S.C.A. § 1144(d). But Congress’s decision to model TSP 

accounts on private retirement savings plans is in line with the textual 

indications that Congress did not intend to prevent tax levies on TSP 

accounts of public employees who fail to pay taxes and suggests that 

Congress did not wish to provide greater protection against federal tax 

levies to the assets held in the TSP retirement accounts of federal employees than it conferred on the comparable accounts of private-sector employees.

Our interpretation of the relationship between section 6334 and the TSP 

provision, moreover, continues to give effect to the term “levy” in the 

latter statute. While federal tax levies under section 6331 may be one 

common form of “levy,” the term has other applications as well. Black’s 

Law Dictionary defines “levy” to mean not only “[t]he imposition of a 

fine or tax; the fine or tax so imposed” (so-called “tax levies”), but also 

“[t]he legally sanctioned seizure and sale of property; the money obtained from such a sale” (so-called “levies of execution”). Black’s Law 

Dictionary 991 (9th ed. 2009). In keeping with this definition, the term 

has been used in other contexts to describe means of recovering a variety 

of both public and private debts. See, e.g., 28 U.S.C. §§ 3002(3), (4), 

3102(d), 3203(d) (2006) (authorizing “levies” to collect various debts 

owed to the United States); U.C.C. § 6-111 (1987 Official Text), reprint-
34 Op. O.L.C. 157 (2010)

168

ed in U.C.C. app. V at 1497 (2005) (providing with respect to recovery of 

certain private debts that “[n]o action under this Article shall be brought 

nor levy made more than six months after the date on which the transferee 

took possession of the goods unless the transfer has been concealed” 

(emphasis added)); D.C. Code § 28:6-111 (2001) (codifying this provision); Md. Code Ann., Com. Law, § 6-111 (West 2009) (same); U.C.C. 

§ 6-111 cmt. 2 (1987 Official Text), reprinted in U.C.C. app. V at 1497 

(2005) (indicating that while “‘levy’ . . . is not a defined term under the 

Code,” the term “should be read broadly [in this provision] as including 

not only levies of execution proper but also attachment, garnishment, 

trustee process, receivership, or whatever proceeding, under the state’s 

practice, is used to apply a debtor’s property to payment of his debts”); 

United States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 782–

85 (5th Cir. 2006) (discussing levies imposed on certain bank account 

assets under New York, South Carolina, and Washington state law to 

execute a federal court civil judgment), vacated in part on other grounds, 

493 F.3d 469 (5th Cir. 2007) (en banc). Furthermore, a Treasury Department regulation requires certain pension plans to bar “benefits provided 

under the plan” from being “anticipated, assigned (either at law or in 

equity), alienated or subject to attachment, garnishment, levy, execution 

or other legal or equitable process,” but then exempts federal tax levies 

under section 6331 from this prohibition. See 26 C.F.R. § 1.401(a)-13(b) 

(emphasis added). As this regulation demonstrates, the term “levy” in the 

Treasury Department’s view encompasses more than federal tax levies. 

Therefore, a restriction on “levies,” as appears in FERSA, need not be 

viewed as unnecessary or without meaningful effect where federal tax

levies are expressly permitted by a different statute that controls. In 

short, absent some statutory restriction on doing so, both private and 

governmental parties might seek to impose levies on TSP accounts to 

collect debts other than federal tax liabilities. Because FERSA’s general 

bar against levies on TSP accounts therefore need not be understood 

solely as a limitation against federal tax levies, the provision is not rendered superfluous by reconciling the two measures as we think proper. 

B.

Against this reading of the proper means of reconciling the two statutes, we have been offered several reasons to conclude that Congress 
Applicability of Tax Levies to Thrift Savings Plan Accounts

169

intended the TSP provision to bar federal tax levies under sections 6331 

and 6334. 

First, another FERSA anti-alienation provision (applicable to certain 

annuities) includes the phrase “except as otherwise may be provided by 

Federal laws,” 5 U.S.C. § 8470(a) (2006), and the Senate version of the 

TSP anti-alienation provision included a similar clause that was dropped 

from the final bill by a conference committee. See H.R. Rep. No. 99-606, 

at 39; S. Rep. No. 99-302, at 39; H.R. 2672, 99th Cong. § 101(a) (as 

ordered printed with Senate amendments, Nov. 14, 1985) (proposing new 

5 U.S.C. § 8426(d)); S. Rep. No. 99-166, at 52. While the contrast between section 8470 and the TSP anti-alienation provision might suggest 

that Congress intended to protect TSP accounts from levy under other 

“Federal laws,” and thus presumably under section 6334 as well, the 

conference committee did not explain its decision to omit this Senate 

language.6 See H.R. Rep. No. 99-606, at 133–39; S. Rep. No. 99-302, at 

133–39. Given the “notwithstanding” clause in section 6334, Congress 

might well have concluded that, whatever the effect of the anti-alienation 

provision on other federal statutes, a broad express exception for “Federal 

laws” was unnecessary to permit federal tax levies on TSP accounts. 

Indeed, several years before Congress enacted FERSA, this Office concluded that a similar “except as” clause in 5 U.S.C. § 8346(a) (2006), an 

anti-alienation provision for certain federal pensions, “was probably 

included pro forma” and “was not necessary to enable IRS to reach funds 

payable under the retirement law to employees or former employees 

 

6 As explained in the conference committee reports, the Senate passed the legislation 

that became FERSA as an amendment to unrelated House legislation. H.R. Rep. No. 99-

606, at 125; S. Rep. No. 99-302, at 125; see also 131 Cong. Rec. 31,087 (1985) (Senate 

passage of legislation). Although the House bill in the conference included no provisions 

for the establishment of a new federal retirement system, the conferees “were cognizant 

of” a pending House retirement reform bill, and they “incorporated many of [this bill’s 

provisions] in the conference agreement.” H.R. Rep. No. 99-606, at 125; S. Rep. No. 99-

302, at 125; see also H.R. 3660, 99th Cong. (1985) (pending House bill); H.R. Rep. No. 

99-1030, at 174–75 (1986) (review of committee activity describing legislative history of 

FERSA and H.R. 3660). The House bill included a TSP anti-alienation provision that, 

among other differences from the Senate provision, omitted the clause “except as may be 

provided in a Federal law” that appeared in the Senate bill. See H.R. 3660, § 101(a) 

(proposing new 5 U.S.C. § 8434(d)); H.R. 2672, § 101(a) (proposing new 5 U.S.C. 

§ 8426(d)).
34 Op. O.L.C. 157 (2010)

170

delinquent in the payment of their taxes.” Validity of Federal Tax Lien 

on Civil Service Retirement Refund, 5 Op. O.L.C. 37, 39 (1981). In any 

event, we cannot presume that, contrary to the other considerations of text 

and history discussed above, Congress’s omission of an “except as” 

clause included in another provision and originally included in the Senate 

bill signals the kind of “clear and manifest” intent, Office of Hawaiian 

Affairs, 129 S. Ct. at 1445 (internal quotation marks omitted), that would 

be required to repeal section 6334 by implication and thus shield TSP 

accounts from federal tax levies.

Second, according to the legislative history, Congress enacted ownership and vesting protections for TSP accounts to prevent “political involvement in the thrift plan management” and eliminate any congressional 

temptation to “use the large pool of thrift money for political purposes.” 

See H.R. Rep. No. 99-606, at 136; S. Rep. No. 99-302, at 136. An IRS 

levy to collect unpaid taxes, however, does not implicate these concerns, 

because such levies are possible only in the case of a tax delinquency.

Third, in 1996, Congress amended FERSA to provide that “[n]otwithstanding any other provision of law,” the government’s contributions to 

an employee’s TSP account (and any associated earnings) “shall be forfeited” if the employee forfeits certain other federal retirement benefits 

under provisions authorizing such forfeiture based on the employee’s 

commission of one or more specified national security offenses. See

Intelligence Authorization Act for Fiscal Year 1996, Pub. L. No. 104-93, 

§ 304, 109 Stat. 961, 965 (1996) (codified at 5 U.S.C.A. § 8432(g)(5)). 

Congress’s placement of the new provision, 5 U.S.C.A. § 8432(g)(5), in 

provisions governing TSP accounts, rather than in the provisions generally governing forfeiture based on national security offenses, might be 

argued to support the conclusion that “Congress intended that TSP funds 

were, and are, to be alienated only pursuant to the express exceptions set 

forth in FERSA.” Letter for Daniel L. Koffsky, Deputy Assistant Attorney 

General, Office of Legal Counsel, from Thomas K. Emswiler, General 

Counsel, Federal Retirement Thrift Investment Board, at 5 (Sept. 17, 

2009) (“FRTIB Submission”). Yet because other provisions of the subsection to which Congress added this provision deal with forfeiture of government contributions to TSP accounts, see 5 U.S.C.A. § 8432(g), it 

would seem a natural, or at least convenient, place to locate the new 

provision. In any event, we do not believe we can draw such a sweeping 
Applicability of Tax Levies to Thrift Savings Plan Accounts

171

inference about congressional intent from Congress’s decision where to 

codify this provision, which is described in the legislative history as 

merely “clos[ing] a loophole.” See H.R. Rep. No. 104-138, pt. 1, at 29 

(1995). In fact, if anything, this amendment reinforces the conclusion that 

section 6334(c) permits federal tax levies on TSP accounts, because in 

section 8432(g)(5) Congress authorized forfeiture from TSP accounts 

using precisely the phrase—“notwithstanding any other” law—that also 

appears in section 6334(c).7

Finally, another FERSA amendment, enacted in 2009, created an express exception to the TSP anti-alienation provision for the “enforcement” 

of certain victim restitution orders under the MVRA, 18 U.S.C. § 3663A. 

See 5 U.S.C.A. § 8437(e)(3). Because a separate MVRA provision already 

provided for civil enforcement of such restitution orders “[n]otwithstanding any other Federal law (including section 207 of the Social Security Act),” see 18 U.S.C. § 3613(a), (f) (2006), Congress’s addition of 

this express exception could show that Congress did not believe that the 

“notwithstanding” provision in the MVRA already authorized alienation 

of TSP account assets and thus that Congress did not intend the closely 

similar “notwithstanding” language of section 6334(c) to authorize such 

alienation. The legislative background of this amendment, however, 

undermines this inference. The Ninth Circuit, among other courts, had 

held that the MVRA enforcement provision superseded ERISA’s antialienation provision, thus allowing enforcement against funds in ERISA-

 

7 More broadly, FRTIB suggests that because certain provisions in Title 5 of the U.S. 

Code governing the Thrift Savings Fund explicitly incorporate or cross-reference specific 

provisions of the Internal Revenue Code (Title 26) applicable to analogous private 

retirement savings plans, Congress “designed the TSP to be governed by title 5, not title 

26,” and did not intend “[p]rovisions in the [Internal Revenue Code] applicable to private 

sector plans [to be] self-executing with regard to the TSP.” FRTIB Submission at 10–11. 

But express cross-references to such other Internal Revenue Code provisions would not 

preclude the application of the federal tax levy provisions, which by their terms reach all 

“property and rights to property,” to TSP accounts. 26 U.S.C. §§ 6331(a), 6334(c); see 

also, e.g., Drye, 528 U.S. at 56 (observing that the language in section 6331(a) “‘is broad 

and reveals on its face that Congress meant to reach every interest in property that a 

taxpayer might have’” (quoting United States v. Nat’l Bank of Commerce, 472 U.S. 713, 

719–20 (1985)). We express no view in this opinion about the applicability of any other 

Internal Revenue Code provisions to TSP accounts or the Thrift Savings Fund.
34 Op. O.L.C. 157 (2010)

172

governed plans.8 See Novak, 476 F.3d at 1053 (en banc); see also, e.g., 

United States v. Miller, 588 F. Supp. 2d 789, 796 (E.D. Mich. 2008); 

United States v. Lazorwitz, 411 F. Supp. 2d 634, 636–37 (E.D.N.C. 2005); 

United States v. James, 312 F. Supp. 2d 802, 804–05 (E.D. Va. 2004); cf.

United States v. Irving, 452 F.3d 110, 126 (2d Cir. 2006) (adopting the 

“understanding” that “18 U.S.C. § 3613(a) permits courts to consider 

ERISA protected assets in determining appropriate fines and restitution” 

because “ERISA pension plans are not exempted from payment of taxes 

under 26 U.S.C. § 6334, and thus they should not be exempted from 

payment of criminal fines”); Hosking, 567 F.3d at 335 (holding that a 

sentencing court “may order a lump-sum payment from [a retirement] 

account to satisfy a restitution order”). In addition, at least one federal 

court had held that TSP accounts were subject to MVRA orders. See 

Laws, 352 F. Supp. 2d at 712 & n.7. FRTIB, however, advised Congress 

and the Department of Justice that it nevertheless would not honor MVRA 

orders. See FRTIB Submission at 6–7; Letter for Kenneth E. Melson, 

Director, Executive Office for United States Attorneys, from Thomas K. 

Emswiler, General Counsel, Federal Retirement Thrift Investment Board 

(Apr. 30, 2009) (attachment 3 to FRTIB Submission); E-mail for Larry 

Novey from Thomas Trabucco (Apr. 21, 2009) (“Trabucco E-mail”) 

(attachment 4 to FRTIB Submission). FRTIB also approved a motion to 

“seek clarification” from Congress as to whether the MVRA applied to 

TSP accounts, and in e-mail correspondence FRTIB requested that a 

congressional committee revise FERSA “[i]f after review the Committee 

believes that the MVRA provision was intended to allow access to TSP 

funds.” See Trabucco E-mail.

In light of FRTIB’s request for clarifying legislation, Congress may not 

have intended to make any substantive change in the 2009 amendments, 

but simply to clarify congressional intent and provide FRTIB with comfort that MVRA orders may be satisfied from TSP accounts. Indeed, at 

the same time that it added the MVRA exception, Congress also added 

an express exception to the anti-alienation provision for forfeiture under 

the provision regarding government contributions enacted in 1996. See

 

8 Although several judges dissented from the en banc Ninth Circuit’s holding with 

respect to the MVRA in Novak, the dissenters distinguished federal tax levies from the 

MVRA. See Novak, 476 F.3d at 1076–77 (W. Fletcher, J., dissenting). 
Applicability of Tax Levies to Thrift Savings Plan Accounts

173

Thrift Savings Plan Enhancement Act of 2009, Pub. L. No. 111-31, § 108, 

123 Stat. 1853, 1856 (2009) (codified at 5 U.S.C.A. § 8437(e)(3)). This 

change also seems to have been intended as a clarification, not a substantive amendment, as it seems unlikely that Congress intended the 1996 

amendment to have been ineffective before the anti-alienation provision 

was thus amended to include an express cross-reference. See FRTIB 

Submission at 5–6, 12 n.13 (asserting that the addition of this exception 

to § 8437(e)(3) was “unnecessary” because forfeitable government contributions under § 8432(g) are “not protected by 5 U.S.C. § 8437”). To the 

extent the express exception for MVRA restitution orders was intended 

to be clarifying rather than substantive, this amendment may only reinforce the conclusion that Congress believed the closely similar language 

of the federal tax levy provision also creates an exception to the TSP 

provision. Cf. Am. Fed’n of Gov’t Employees, 702 F.2d at 1186–87 (contrasting clarifying provisions and exceptions to otherwise governing law). 

In any event, the legislative history gives no clear explanation for the 

2009 changes. Thus, here, too, the amendment fails to indicate a “clear 

and manifest” intention, Office of Hawaiian Affairs, 129 S. Ct. at 1445 

(internal quotation marks omitted), partially to repeal section 6334(c) and 

preclude federal tax levies on TSP accounts.9

DANIEL L. KOFFSKY

Deputy Assistant Attorney General

Office of Legal Counsel

 

9 The Tax Division also argues that tax levies under sections 6331 and 6334 do not 

fall within the scope of the TSP anti-alienation provision because that provision’s ban 

on “execution, levy, attachment, garnishment, or other legal process,” 5 U.S.C.A. 

§ 8437(e)(2) (emphasis added), applies only to forms of “legal process,” a term the Tax 

Division argues should be understood to “require judicial intervention,” whereas tax 

levies under sections 6331 and 6334 are imposed administratively. See Memorandum 

for Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from 

John A. DiCicco, Acting Assistant Attorney General, Tax Division, Re: Validity of IRS 

Tax Levies on Thrift Savings Fund Accounts at 8–9 (Dec. 18, 2009). We need not, and 

therefore do not, reach this argument to resolve the question presented to us.