TN 8 (02-11)

PR 04015.026 Minnesota

A. PR 11-049 Garnishment of Underpayment

DATE: January 24, 2011

1. SYLLABUS

This opinion explains that a local government agency may garnish a surviving child’s share of a Title II underpayment due a deceased worker, for purposes of collecting child support owed by the surviving child. The RCC concluded that any payment under Title II, including a non-entitled claimant’s portion of an underpayment due a deceased worker, is garnishable under the Social Security Act. The wage earner has two surviving sons who decided that one of them should claim the entire underpayment; the other child owes back child support.

The opinion recommends that the Wright County Human Services Agency (WCHSA) submit a court order directing SSA to garnish the portion of the underpayment due the deceased that is being paid to the surviving son. The order to garnish should contain the current balance of the child support case(s), and state that a portion of the judgment or arrearage remains unpaid. The court order should also direct SSA to make garnishment payment to the Minnesota Child Support Payment Center.

2. OPINION

You requested a legal opinion as to whether a local government agency may garnish a surviving child’s share of a Title II underpayment due a deceased worker, for purposes of collecting child support owed by the surviving child. For the reasons discussed below, we conclude that any payment under Title II, including a non-entitled claimant’s portion of an underpayment due a deceased worker, is garnishable under the Social Security Act. Based on the specific facts of this case, we recommend that SSA give the local government agency an opportunity to resubmit proper legal process before releasing the underpayment to the surviving child.

BACKGROUND

Thomas F~, the number holder (NH), filed a claim for Title II benefits. The NH was awarded benefits, but died before payment could be made, resulting in an underpayment of approximately $30,000. The NH was survived by two children, Foster and Nathaniel. Foster filed a claim for payment of the NH’s underpayment, but not Nathaniel. Apparently, the siblings agreed that Foster would collect the entire underpayment and then distribute it.

The Wright County Human Services Agency (WCHSA) has informed SSA that Nathaniel owes child support. Therefore, the WCHSA claims that it has a legal interest in Nathaniel’s share of the NH’s underpayment. To that end, the WCHSA has submitted an affidavit notarized on October 4, 2010, signed by Kimberly W~, a Child Support Officer. According to the affidavit, Nathaniel has been court-ordered to pay child support pursuant to orders dated August 9, 2001, and December 20, 2006; as of August 8, 2001, Nathaniel owed arrearages of $48,883.93.

DISCUSSION

Under the Social Security Act, regulations, and agency policy, when a Title II underpayment is due a deceased worker, there is an order of priority to whom such payment is made. See Section 204(d) of the Act; 20 C.F.R. § 404.503; POMS GN 02301.030. The order of priority includes children of the deceased worker. Specifically, the statute provides that, when no individual is entitled to benefits on the deceased worker’s account at the time of his death, and there is no surviving spouse, an underpayment is paid “to the person or persons, if any, determined by the Commissioner of Social Security to be the child or children of the deceased individual (and, in case there is more than one such child, in equal parts to each such child).” Section 204(d)(5) of the Act; see also 20 C.F.R. § 404.503(b)(5); POMS GN 02301.030(A). Here, since Nathaniel is one of two surviving children of the NH, he is due one half of the NH’s underpayment.

As indicated above, Nathaniel owes child support. The submitted materials include an affidavit by a child support officer of the WCHSA stating that Nathaniel owes over $48,000 in child support arrearages as of August 8, 2001. Thus, the issue is whether an underpayment due a deceased worker may be garnished to collect support owed by one of the surviving individuals due the underpayment.

Under Section 459 of the Act, Social Security Title II benefits are subject to legal process for the enforcement of an individual’s legal obligation to provide child support or alimony. See also 5 C.F.R. § 581.103(c)(1); 20 C.F.R. § 404.1820(b); POMS GN 02410.200A. Section 459(a) states in relevant part:

[M]oneys (the entitlement to which is based upon remuneration for employment) due from, or payable by, the United States… to any individual…shall be subject…to withholding in accordance with State law enacted pursuant to [Section 466 of the Act requiring each State to enact laws requiring specific procedures to improve the effectiveness of child support enforcement]…and to any other legal process brought, by a State agency …to enforce the legal obligation of the individual to provide child support or alimony.

The language in the statute and regulations makes clear that all payments under Title II, not just periodic benefits due the worker, fall within the scope of this garnishment requirement. Under Section 459(h), which addresses “[m]oneys subject to process,” the term “moneys payable to an individual which are considered to be based upon remuneration for employment” includes “periodic benefits…or other payments…under the insurance system established by [Title II].” See Section 459(h)(1)(A)(ii)(I) (emphasis added). In addition, 5 C.F.R. § 581.103(c)(1) states that the following are subject to garnishment: “[p]eriodic benefits…to include a benefit payable in a lump sum if it is a commutation of, or a substitute for, periodic payments; or other payments…under the programs established by [Title II]” (emphasis added). This section also specifies that “[d]ependents’ or survivors’ benefits” are garnishable, 5 C.F.R. § 581.103(c)(1)(v), which, like the underpayment at issue here, are not strictly based on remuneration for employment but on familial relationship. Moreover, in the regulatory section which addresses “[m]oneys which are not subject to garnishment,” the only Social Security benefit listed is SSI. See 5 C.F.R. § 581.104(j). In short, the broad language in both the statute and the regulations appears intended to capture all payments under Title II. Thus, we believe that the payment due Nathaniel as his share of the deceased NH’s underpayment is, in fact, garnishable for the child support that he owes.

Under the garnishment statute, SSA is required to comply with any notice of withholding “or any other order or process” to enforce an individual’s support obligations. See Section 459(b) of the Act. “Legal process” is defined as “any writ, order, summons, notice to withhold income pursuant to [Section 466 of the Act], or other similar process in the nature of garnishment” which is issued by (1) a court of competent jurisdiction (domestic or foreign), (2) an authorized official pursuant to a court order or pursuant to State or local law, or (3) a State agency authorized to issue income withholding notices pursuant to State or local law or pursuant to Section 466(b) of the Act; and is directed to a governmental entity to compel it to make a payment, from moneys otherwise payable to an individual, to another party in order to satisfy the individual’s legal obligation to provide child support or alimony. See Section 459(i)(5) of the Act; 5 C.F.R. § 581.102(f); POMS GN 02410.200B. In addition, the legal process must, on its face, conform to the laws of the issuing jurisdiction. See 5 C.F.R. § 581.305(a)(1); POMS GN 02410.210(A)(3)(b).

Here, the Affidavit of Lump Sum Payment signed by Kimberly W~, a Child Support Officer with the WCHSA, does not appear to satisfy all of the requirements for “legal process,” as defined above. The affidavit may be considered other similar process in the nature of garnishment. Also, under Minnesota state law, the WCHSA is considered a “public authority” and, as such, is a state agency authorized to issue income withholding notices. See Minn. Stat. §§ 518A.26 subd. 18, 518A.53 subd. 2; see also http://www.co.wright.mn.us/department/humanservices/ (last visited Dec. 8, 2010) (WCHSA is a department of the local county government; it is responsible for child support enforcement); http://www.dhs.state.mn.us/main/
idcplg?IdcService=GET_DYNAMIC_CONVERSION&RevisionSelectionMethod=LatestReleased&dDocName=id_000160 (updated Sept. 16, 2010) (county child support offices administer the state’s child support program). However, the affidavit does not appear to be directed to a governmental entity, namely SSA, to make a payment otherwise payable to Nathaniel to another party (presumably the Minnesota Child Support Payment Center1 to satisfy Nathaniel’s child support obligation. See Section 459(i)(5)(B) of the Act; 5 C.F.R. § 581.102(f)(2). Although the legal process need not name SSA expressly as a garnishee, it must still be directed to a governmental entity. See 5 C.F.R. § 581.202(a). But in this case, the affidavit essentially quotes subd. 11 of former Minn. Stat. § 518.6111 (renumbered § 518A.53 in 2006) and merely provides some details of Nathaniel’s child support arrearages.

Moreover, there is a question as to whether the affidavit conforms to Minnesota law. Under the Minnesota garnishment statute, when a public authority seeks to garnish a lump-sum payment of $500 or more in pay or benefits due to an obligor, it must serve a sworn affidavit from the public authority or a court order which includes the following information: “(i) that a [child support] judgment. . .exists against the obligor, or that other support arrearages exist; (ii) the current balance of the judgment or arrearage; and (iii) that a portion of the judgment or arrearage remains unpaid.” Minn. Stat. § 518A.53 subd. 11(2). Here, the affidavit does not state that a portion of the judgment or arrearage remains unpaid. Also, the affidavit, which was notarized on October 4, 2010, provides the balance of the judgment or arrearage only as of August 8, 2001. We suspect that there may be a typographical error in this date, especially since it predates both child support orders mentioned in the affidavit.

In conclusion, based on our review, we believe that garnishment of the deceased NH’s underpayment due to Nathaniel may be proper in this case. However, in light of the potential typographical error in and other problems with the affidavit submitted by the WCHSA, we recommend that you take the following action:

• Contact the WCHSA and request that, within 30 days, it submit legal process (preferably a court order) which is directed to SSA, gives the current balance of the judgment or arrearage in Nathaniel’s child support case(s), and states that a portion of the judgment or arrearage remains unpaid.

• Withhold the underpayment for 30 days. If you do not receive the requested legal process within 30 days, cease withholding and pay the withheld underpayment to Nathaniel.

CONCLUSION

For the reasons discussed above, we conclude that Nathaniel’s share of the deceased NH’s underpayment is subject to garnishment for enforcement of Nathaniel’s child support obligation. We recommend that SSA give the WCHSA an opportunity to resubmit proper legal process before releasing the underpayment to Nathaniel.

Donna L. C~
Regional Chief Counsel, Region V
By: _______________
Cristine B~
Assistant Regional Counsel


Footnotes:

[1]

Under Minnesota state law, in cases where the state or county is involved, child support payments shall be made to the Minnesota Child Support Payment Center. See Minn. Stat. § 518A.54-.56; http://www.co.wright.mn.us/department/humanservices/humanC.htm#childsupport (last visited Dec. 8, 2010).


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http://policy.ssa.gov/poms.nsf/lnx/1504015026
PR 04015.026 - Minnesota - 02/16/2011
Batch run: 02/16/2011
Rev:02/16/2011