< Back to Search

State IV-D Agencies' Use of the Federal Income Withholding Form on Tribal Employers

PIQT-05-04

Published: October 21, 2005
Information About:
State/Local Child Support Agencies, Tribal Child Support Agencies
Topics:
Employer Responsibilities, Income/Wage Withholding, Intergovernmental/Interstate
Types:
Policy, Policy Interpretation Questions (PIQ), Tribal Policy

DATE: October 21, 2005

TO: Tribal and State IV-D Directors

FROM: Margot Bean
Commissioner
Office of Child Support Enforcement

SUBJECT: State IV-D Agencies' use of the Federal Income Withholding Form on Tribal Employers

The purpose of this Policy Interpretation Question-Tribal, is to clarify the use of the Standard Federal income withholding form. As you know, all IV-D agencies are required to use the Income Withholding form. On July 15, 2004, OCSE issued Action Transmittal O4-05, Revised Federal Order/Notice to Withhold Income for Child Support and Notice of an Order to Withhold Income for Child Support. The Action Transmittal reflected changes to the form, the mandate for tribes operating IV-D programs to use the form, and also provided instructions for processing the form. Although we indicated in the AT that tribal child support enforcement communities have income withholding laws that may differ from state laws, it has been brought to our attention that the instructions may be misleading for state IV-D agencies sending income withholding orders to tribal employers.

The second page of the Order/Notice to Withhold Income for Child Support and Notice of an Order to Withhold Income for Child Support contains additional information to employers and other withholders. The last sentence in number 9, Withholding Limits , says: “For tribal employers who receive a state order, you may not withhold more than the amounts allowed under the law of the state that issued the order.”

QUESTION 1 : Should a state send an income withholding form directly to a tribal employer?

RESPONSE 1 : Not unless there is an agreement between the tribe and the state, as set forth in PIQT-04-01, Direct Income Withholding When Employers are Subject to a Tribe's Jurisdiction, Providing Tribal IV-D Services and Access to State Data. While the Uniform Interstate Family Support Act (UIFSA) compels an employer subject to state jurisdiction to honor a withholding order sent directly from another state or an Indian tribe, tribes (and tribal employers) are not subject to UIFSA.

QUESTION 2 : What is the responsibility of a tribal IV-D agency in relation to income withholding orders received from state IV-D agencies?

RESPONSE 2 : As set forth in the regulations at 45 CFR 309.110(n), and reiterated in PIQT-04-01, “the tribal IV-D agency is responsible for reviewing and processing income withholding orders from states, tribes, and other entities, and ensuring orders are properly and promptly served on employers within the tribe's jurisdiction.”

QUESTION 3 : Are all tribes required to use and/or recognize the standard income withholding form?

RESPONSE 3 : No. Tribes that do not receive funding to operate IV-D programs are not required to use or recognize the standard income withholding form. However, tribes that receive federal funding to operate IV-D programs are required to use and recognize the standard income withholding form.

QUESTION 4 : What is the proper way for a state IV-D agency to issue an income withholding form to a tribal employer, when the tribe has an IV-D program?

RESPONSE 4 : The income withholding form should be sent directly to the tribal IV-D agency. The tribal IV-D agency will then review and process the income withholding order to the tribal employer within the tribe's jurisdiction.

QUESTION 5 : What is the best way for a state IV-D agency to issue an income withholding order to a tribe that is not operating an IV-D program?

RESPONSE 5 : The state IV-D agency should contact the tribe directly for instructions on how to process the income withholding order.

QUESTION 6 : What withholding limits should a tribal employer apply once it receives an income withholding order for a tribal employee?

RESPONSE 6 : As noted in section 309.110(c), the total amount to be withheld may not exceed the maximum amount permitted under section 303(b) of the Consumer Credit Protection Act (15 U.S.C. 1673(b)) (CCPA), but may be set at a lower amount.

Therefore, the maximum amount to be withheld may not exceed the CCPA cap or the limit set by the law of the tribe in whose jurisdiction the employer is located, whichever is lower.

QUESTION 7 : The second page of the Order/Notice to Withhold Income for Child Support and Notice of an Order to Withhold Income for Child Support contains additional information to employers and other withholders. The last sentence in number 9, Withholding Limits , says: “For tribal employers who receive a state order, you may not withhold more than the amounts allowed under the law of the state that issued the order.” When will this be amended?

RESPONSE 7 : The OMB form, which was issued in July 2004, is due to expire in 2007. When the form is changed, the new instruction will read: “For tribal employers who received a state order, you may not withhold more than the limit set by the law of the state/tribe in whose jurisdiction the employer is located, or the maximum amount permitted under section 303(d) of the Consumer Credit Protection Act (15 USC 1673 (b)).”

Inquiries should be directed to the appropriate Regional Offices.