Fog, Fairness, and the Federal Fisc: Tenancy-by-the-Entireties Interests and the Federal Tax Lien

This rule-the tenancy-by-the-entireties bar to tax collection-is unsound. It inadequately reconciles the interests at stake, and it is inconsistent with the modem understanding of the nature and reach of the federal tax lien.This article recommends that the bar be abrogated. In place of the old rule, the article proposes that the federal tax lien should attach to entireties property, but only to the extent of the lesser of (1) the debtor tenant's tax liabilities or (2) the value of the debtor tenant's interest in the property. The article has five parts.

Part I describes the origins of the entireties bar and the principal rationales on which it is based. Parts II, III, and IV criticize the bar. They suggest that the key bar cases likely were wrong when decided-both as a matter of policy and doctrinally-and that subsequent developments have revealed the errors of these cases more glaringly.