Issuing and Complying with the Federal Income Withholding
DATE: January 29, 2003
TO: All State IV-D Directors
FROM: Sherri Z. Heller, Ed.D.
Office of Child Support Enforcement
RE: Requirements for Issuing and Complying with the Federal Income Withholding Form
Background: The purpose of this PIQ is to reinforce the requirements for the appropriate use of and compliance with the Federal Income Withholding Form, as previously clarified in PIQ-99-02 and PIQ-01-01. In this PIQ, we specifically reference Federal requirements for income withholding, paying particular attention to how withholding implementation methods may differ (a) between IV-D and non-IV-D cases, and (b) by the issue date of the income withholding order.
Question 1: If a pre-1994, non-IV-D child support order does not include a provision for income withholding, is a separate withholding order or other legal process, as defined by state law, required before an employer institutes income withholding if arrearages occur?
Answer: Yes. Section 466 (a)(1)(B) of the Social Security Act (Act) provides that orders issued before January 1, 1994, shall be "subject" to withholding if arrearages occur without the need for a judicial or administrative hearing. However, this does not obviate compliance with any state law requirements for obtaining authorization (by an order or other legal process, as defined by state law), to compel an employer to implement income withholding.
Section 466(b)(2) of the Act requires that each state have laws enabling the state to issue an income withholding order directly "without the need for any amendment to the support order involved or for any further action ... by the court or other entity which issued such order" in cases receiving "services under the State plan under this part…" (i.e., in IV-D cases). There is no parallel requirement for non-IV-D cases. State, not federal, law specifies and governs the action necessary to initiate income withholding in non-IV-D cases, although a hearing may not be required.
In addition, the Act and applicable federal policy refer to withholding orders as a prerequisite to the issuance of the Federal Income Withholding Form on more than one occasion. For example, in PIQ-99-02, we explained in the answer to Question 2 that the form "must be used to notify employers of an order to withhold" [emphasis added]. Income withholding orders may be included as part of a support order or may be issued as a separate order by a tribunal or an appropriate authority under State law." Thus, state law determines who or what entity has the authority to issue withholding orders and the process for doing so.
Similarly, in PIQ-01-01, we stated in the answer to Question 1 that "Section 466(b)(6)(A)(i) of the Act directs that an employer of a noncustodial parent, 'upon being given notice as described in clause (ii), must be required to withhold from such noncustodial parent's income the amount specified by such notice…'" Clause (ii) of that section requires that the "notice given to the employer shall be in a standard format prescribed by the Secretary [of HHS], and contain only such information as may be necessary for the employer to comply with the withholding order" [emphasis added]. In PIQ-01-01, we also clarify that: "Only a tribunal or entity authorized to issue orders under State law may issue the Federal ‘Order/Notice to Withhold Income for Child Support' as a withholding order. The form may also be sent by an individual, agency or entity as a notice to an employer to withhold income, but only if it is based on an underlying withholding order issued by an appropriate authority under State law" [emphasis added]. A non-governmental entity, thus, is not authorized to send the Federal Income Withholding Form to an employer if there is no existing income withholding order or income withholding provision in the support order, except as permitted by state law.
Question 2: If a post-1993, non-IV-D order does not include an income withholding provision, is an income withholding order or other legal process, as defined by state law, required before withholding is implemented?
Answer: Yes. Notwithstanding federal requirements that states enact laws that require all orders issued on or after January 1, 1994 provide for income withholding, if a support order in a non-IV-D case does not do so, there is no authority for income withholding. Federal law does not preempt state law in this area and, accordingly, wage withholding has not been ordered until a stand-alone income withholding order or other legal process, as defined by state law, directing an employer to withhold is executed.
Question 3: Section 101(6) of the Uniform Interstate Family Support Act (UIFSA) defines an "income-withholding order" as "an order or other legal process directed to an obligor’s [employer] [or other debtor], as defined by [the income-withholding law of this State], to withhold support from the income of the obligor." The official comments to both UIFSA 1996 and 2001 indicate that the definition "is written broadly to include an ‘income withholding order’ based on ‘other legal process,’ as distinguished from ‘by order of a tribunal.’" What form may this "other legal process" take?
Answer: Interpretations of provisions of UIFSA, such as interpretation of the term "other legal process," would be determined by state law. The comments to UIFSA 1996 give as an example of "other legal process" New York law that authorizes an attorney, clerk of court, sheriff or agent of the child support enforcement agency to serve upon the obligor’s employer an "income execution for support enforcement." A comment to UIFSA 2001 indicates that "some States issue such orders administratively, which are entitled to enforcement notwithstanding the fact that no judicial or quasi-judicial process is involved." It appears, therefore, that a state’s law may provide for implementing income withholding based on a specified legal process. In non-IV-D cases, a copy of the state law authorizing such "other legal process" should accompany the Federal Income Withholding Form to ensure the request from a non-governmental entity is authorized under state law.
UIFSA recognizes that some states, such as New York, apparently have implemented the withholding process through non-tribunal orders (i.e., "other legal process"). Whether an entity other than a IV-D agency may authorize withholding based upon such "other legal process" for the enforcement of a child support order is a question of state not federal law.
Question 4:The official comments on the definition of ‘income withholding order’ in both UIFSA 1996 and 2001 indicate that "Federal law requires that each state must provide for income withholding ‘without the necessity of any application therefor, or for any further action by the court or other entity which issued such order.’ Do these comments support an interpretation of federal IV-D law to allow that, in non-IV-D cases, income withholding may be implemented without any further action by a court or other entity that issued the order?
Answer: No. As indicated above, state, not federal, law specifies and governs the legal action or process necessary to authorize and to initiate income withholding, although a hearing may not be required.
Question 5: If an employer receives the Federal Income Withholding Form from a non-governmental entity, what means are available to the employer to verify whether he or she should implement the notice to withhold?
Answer: Upon receipt of a Federal Income Withholding Form from a non-governmental entity, the employer may request a copy of the underlying withholding order or the state law that authorizes another legal process to implement withholding as verification that income withholding has been ordered in accordance with state law.
cc: ACF Regional Administrators
Regional Program Managers