U.S. v. Rogers
| Decision Date | 06 July 1981 |
| Docket Number | 80-1020,Nos. 79-3358,s. 79-3358 |
| Citation | 649 F.2d 1117 |
| Parties | 81-2 USTC P 9536 UNITED STATES of America, Plaintiff-Appellant, v. Lucille Mitzy Bosco ROGERS, Individually and as surviving spouse of Philip S. Bosco, et al., Defendants-Appellees. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Chief, William S. Estabrook, Wynette J. Hewett, Attys., Tax Div., Dept. of Justice, Washington, D.C., for the U.S Ray, Trotti, Hemphill, Moore & Peterson, William David Elliott, J. Michael Wylie, Dallas, Tex., for defendants-appellees.
Appeals from the United States District Court for the Northern District of Texas.
(July 6, 1981)
Before CHARLES CLARK, TATE and WILLIAMS, Circuit Judges.
This case presents the interesting question whether the federal government may foreclose a federal tax lien on the Texas homestead of a delinquent taxpayer in order to satisfy the delinquent taxpayer's tax liability, when the taxpayer's spouse, also having an interest in the homestead, has no federal tax liability.
The facts in this case are not in dispute. In 1955, appellee Lucille Mitzy Bosco Rodgers 1 and her husband at that time, Philip S. Bosco, acquired as community property a residence in Dallas, Texas, which they occupied with their children as their homestead under Texas law. 2 In 1971 and 1972, the federal government made assessments against Philip S. Bosco for federal wagering taxes in the amount of $927,284.79, plus penalties and interest, for the taxable years 1966 through 1971. When Philip S. Bosco died in 1974, these taxes remained unpaid, as they do today. Mrs. Rodgers herself has no federal tax liability.
After her husband's death, Mrs. Rodgers continued to occupy the residence as her homestead. Her children of the marriage have since married and moved to their own homes. Mrs. Rodgers has remarried and now resides in the residence with her second husband. She plans to continue to maintain the residence as her homestead. At the time this suit was filed, she held no property that belonged to her deceased husband other than the homestead and certain personal property of less than $500.00 in value.
On September 23, 1977, the government instituted this suit in the United States District Court for the Northern District of Texas in order to: (1) reduce to judgment the tax assessment made against Mrs. Rodgers' deceased husband; (2) enforce the federal tax liens against all the property that belonged to the deceased taxpayer, including his interest in the Texas homestead of Mrs. Rodgers; and (3) obtain a deficiency judgment for any unsatisfied amount of the tax liability of the deceased taxpayer. Appellees, Mrs. Rodgers, her two adult children, and the executor of her deceased husband's estate, moved for summary judgment on the ground that the federal tax liens may not defeat Mrs. Rodgers' interest in the homestead. They also asserted that they were entitled to recover, under 42 U.S.C. § 1988 (1976), attorney's fees in the amount of $3,000.00. The government filed a cross-motion for partial summary judgment on the questions whether the federal tax lien could be enforced against the homestead and whether appellees, defendants below, were entitled to recover attorney's fees.
On August 2, 1979, the district court denied the government's motion and granted summary judgment in favor of appellees. The court also awarded appellees attorney's fees in the amount of $3,000.00. The government filed notice of appeal from the district court's summary judgment for appellees together with the award of attorney's fees. The government then filed a second appeal of the district court's amended judgment after the district court granted the government's motion to alter or amend the district court's earlier judgment to one of only partial judgment in favor of appellees. This change in the judgment has no relevance to the substantive issues on appeal. These two appeals have been consolidated before us. 3 We now address the propriety of the summary judgment for and attorney's fees award to appellees separately.
Under the Internal Revenue Code of 1954, if a taxpayer neglects or refuses to pay federal taxes upon assessment, notice, and demand by the government, a lien arises upon "all property and rights to property" belonging to the delinquent taxpayer. 26 U.S.C. §§ 6321, 6322 (1976). The Secretary of the Treasury or his delegate may bring an action to enforce a tax lien "to subject any property, of whatever nature, of the delinquent, or in which he has any right, title, or interest " to the payment of his taxes. Id. § 7403(a).
The questions of whether and to what extent a taxpayer has "property" or "rights to property" are determined under the applicable state law. Slodov v. United States, 436 U.S. 238, 256, n.19, 98 S.Ct. 1778, 1789 n.19, 56 L.Ed.2d 251 (1978); Aquilino v. United States, 363 U.S. 509, 512-13, 80 S.Ct. 1277, 1279-80, 4 L.Ed.2d 1365 (1960); Broday v. United States, 455 F.2d 1097, 1099 (5th Cir. 1972). Once it has been determined under state law that the taxpayer owns property or rights to property, however, federal law controls for the purpose of determining whether a lien will attach to and be enforceable against such property or rights to property. United States v. Mitchell, 403 U.S. 190, 204-05, 91 S.Ct. 1763, 1771-72, 29 L.Ed.2d 406 (1971); Broday v. United States, 455 F.2d at 1099.
The realty involved in this case was, at the time of the attachment of the federal tax liens, the community property of Mrs. Rodgers and the now-deceased taxpayer under Texas law. See Tex.Fam.Code Ann. § 5.01 (Vernon 1975). Each spouse therefore owned an undivided one-half interest in the property. Free v. Bland, 369 U.S. 63, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962). In addition, the land was also the Boscos' homestead. Under Texas law, homestead property possesses different attributes and confers different interest to each spouse than does nonhomestead property. 4 Unlike nonhomestead property in Texas, a Texas homestead, whether the separate property of either spouse or community property, is exempt from forced sale, may not be alienated except on consent of both spouses, and, to the extent consistent with federal law, may not be encumbered by liens other than purchase money, property tax, and materialmen's liens. Tex.Const. art. XVI, § 50; Tex.Fam.Code Ann. § 5.81 (Vernon 1975). The homestead also may not, on the death of one of the spouses, be partitioned among the deceased spouse's heirs during the lifetime of the surviving spouse, so long as the surviving spouse chooses to occupy it as a homestead, or so long as the guardian of the minor children may be permitted by law to occupy it. Tex.Const. art. XVI, § 52. Each spouse possesses these interests in the homestead separately and distinctly from those of the other spouse.
Having determined that the deceased delinquent taxpayer had an undivided one-half interest in the homestead community property under Texas law, we turn now to federal law to determine whether the federal tax liens attached to and may be executed against his property interest, notwithstanding the lack of tax liability on the part of his spouse, Mrs. Bosco, now Mrs. Rodgers, and the absence of any tax liens on her undivided one-half interest in the property.
The resolution of this case would have been greatly simplified had the property in this case been merely community property, without also being homestead property, since it is clear that nonhomestead community property may be reached by the government for the tax debts of either spouse. See Broday v. United States, 455 F.2d 1097 (5th Cir. 1972) (). The presence of a tax liability limited to only one spouse would have been irrelevant.
This case, however, is complicated by the combined facts that the property involved is also homestead property and that only one spouse has federal tax liability. As one commentator points out:
(T)here is a conflict in the cases as to whether a tax lien is valid upon a homestead interest. It has been held that the states cannot carve out homestead exemptions from the effect of the Federal tax liens. The resolution of this issue may depend upon whether there is involved a single interest of the taxpayer who is subject to tax liability, or whether both spouses have an interest while only one is under a tax liability.
9 J. Mertens, Law of Federal Income Taxation § 54.52 (1977) (footnotes omitted). Thus, contrary to the government's assertion, the presence of homestead property in this case renders inapplicable the rule of Broday, supra, which involved nonhomestead rather than homestead community property. 5
In analyzing the issue before us, we note at the outset that the homestead interest of a taxpayer spouse, i. e., that of one who himself has tax liability, clearly cannot by itself defeat a federal tax lien. Section 6334(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 6334(a) (1976), specifies certain property that is to be exempt from a levy to satisfy federal tax liability. 6 Homestead property is not listed in § 6334(a) as exempt property. The Code further provides, in § 6334(c):
(c) No other property exempt. Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by (§ 6334(a)).
26 U.S.C. § 6334(c) (1976). Section 6334(c) thus would preclude the classification of homestead property as exempt property under § 6334(a). This conclusion is made clear by § 301.6334-1(c) of the Treasury Regulations promulgated by the Commissioner of Internal Revenue under the Code:
(c) Other property. No other property or rights to property are exempt from...
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