Atlantic States Const., Inc. v. Hand, Arendall, Bedsole, Greaves and Johnston
| Decision Date | 29 January 1990 |
| Docket Number | No. 88-7592,88-7592 |
| Citation | 892 F.2d 1530 |
| Parties | -607, 90-1 USTC P 50,065, 36 Cont.Cas.Fed. (CCH) P 75,805 ATLANTIC STATES CONSTRUCTION, INC., Plaintiff, v. HAND, ARENDALL, BEDSOLE, GREAVES AND JOHNSTON, et al., Defendants, COLONIAL BANK, Defendant-Appellant, v. INTERNAL REVENUE SERVICE, United States of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Irvin Grodsky, Mobile, Ala., for defendant-appellant.
John J. Boyle, David I. Pincus, William Rose, Gary Allen, U.S. Dept. of Justice, Appellate Section, Tax Div., U.S. Dept. of Justice, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before KRAVITCH, JOHNSON and ANDERSON, Circuit Judges.
Against the backdrop of the Federal Tax Lien Act of 1966, we are confronted in this case with the issue of whether a subcontractor participating in a federal government contract possessed a contractual right to receive an equitable adjustment for delay expenses such that the subcontractor's performance of its responsibilities under the subcontract gave rise to an account as defined under Alabama law. Concluding that the district court erred in failing to accord the provisions of the subcontract the specialized construction developed under the law governing federal contract claims and that this error led the district court to mistakenly conclude that the federal government's tax liens had priority over a bank's security interest in the subcontractor's accounts, we reverse the judgment of the district court.
The facts of this case are undisputed. On June 30, 1980, Atlantic States Construction Inc. ("Atlantic States"), 1 became the prime contractor on a United States Department of the Navy contract for construction at the Oil Spill Prevention Facility in Portsmouth, Virginia. Among other things, this contract had a suspension of work clause that provided for an equitable adjustment to the contract price in the event that the government unreasonably delayed the performance of the contract. 2
On October 15, 1980, Process and Systems Engineering Company, Inc. ("P & S") and Atlantic States entered into a subcontract agreement, whereby P & S agreed to perform a certain portion of Atlantic States's work under the Navy contract. Of particular relevance to this appeal, this contract had an "exculpatory clause" which provided that P & S would not hold Atlantic States liable for damages resulting from any delays in performance of the contract, including those caused by the federal government; the exculpatory clause did provide, however, that Atlantic States "shall cooperate" with P & S to enforce any claim arising from delay against the federal government. 3 In addition, the subcontract incorporated the "suspension of work" provision of the contract between the Navy and Atlantic States.
Work under the contract was suspended by the Navy's contracting officer from April 2, 1981 to January 11, 1982. At that time the work suspension was lifted, P & S resumed work and completed the project on March 4, 1982.
Because it had incurred increased costs in the fulfillment of its contractual responsibilities due to the issuance of the suspension of work directive, P & S submitted a certified claim to Atlantic States seeking additional compensation for its increased expenses on September 7, 1982. Atlantic States in turn submitted the P & S claim to the Department of the Navy seeking an equitable adjustment to its contract to compensate P & S for the increased expenses.
On August 2, 1984, the Navy agreed that an adjustment should be made to the contract to compensate P & S for the increased costs associated with the work suspension. After subsequent negotiations, the Navy and P & S agreed that the Navy would pay Atlantic States $43,888 as an equitable adjustment to the final contract price. It was further agreed that P & S was to receive $41,631 as an equitable adjustment to compensate it for its delay costs. On June 9, 1986, the Navy issued a check payable to Atlantic States for the additional contract price.
Upon receipt of the Navy's check, Atlantic States was confronted by three independent parties, Colonial Bank ("Colonial"), the Internal Revenue Service ("IRS"), and the law firm of Hand, Arendall, Bedsole, Greaves & Johnson ("Hand, Arendall"), each claiming an interest in P & S's portion of the delay expenses. Colonial Bank premised its claim on the basis of a perfected security interest "in all accounts, contract rights and rights to payment of every kind now or at any time hereafter arising out of the business of [P & S]." This security interest had originally been granted to the First National Bank of Fort Worth, which had perfected its security interest on March 25, 1982, and had later assigned its security interest to Colonial. 4 On October 28, 1985, Colonial informed Atlantic States that it was entitled to $26,401.32 of P & S's proceeds.
The IRS's interest was premised upon the fact that P & S had failed to pay payroll taxes in 1982 and 1983. Consequently, in early 1983 and continuing until June 21, 1985, the IRS filed seven separate tax liens with the Probate Judge of Mobile County, thereby perfecting its tax liens against P & S. 5 On July 25, 1985, the IRS filed a Notice of Levy on Atlantic States claiming a total of $21,603.54 in taxes plus statutory additions.
Finally, on October 30, 1985, Hand, Arendall informed Atlantic States that it was entitled to $16,000 of P & S's contractual proceeds by virtue of an existing attorney's lien.
Atlantic States initiated this lawsuit by filing a complaint in interpleader, in which it sought to determine entitlement to the $41,631.00 that the Navy had agreed to pay P & S as compensation for delays and work suspensions on the Oil Spill Prevention Facility. Atlantic States named four defendants to the action: (1) Hand, Arendall; (2) Colonial; (3) the IRS; and (4) P & S. 6
On October 21, 1987, the district court, pursuant to a stipulation by the parties, entered a judgment in favor of Hand, Arendall in the amount of $16,143.60. That judgment has not been appealed by any party and is not at issue here.
On January 7, 1988, the district court issued an order ruling in favor of the United States on cross-motions for summary judgment filed by the United States and Colonial, the only two remaining parties contesting entitlement to the funds. Later, however, the district court granted Colonial leave to file a second motion for summary judgment. Finally, on June 17, 1988, the district court entered a second order denying Colonial's second motion for summary judgment, and granting sua sponte summary judgment in favor of the United States. In its order, the court held that by virtue of the exculpatory clause in P & S's subcontract agreement with Atlantic States, P & S had no right to payment for delay expenses. Inasmuch as P & S had no right to payment, the district court concluded that the funds at issue could not be considered an account of P & S under 1975 Ala.Code § 7-9-106 until such time that the Navy paid Atlantic States for delay expenses. Because the United States had completed perfection by filing its last Notices of Liens almost a year before the Navy finally made payment, the district court determined that the United States's liens had priority over Colonial's security interest. Upon entry of a final judgment by the district court, notice of appeal was timely filed. Fed.R.App.P. 4(a)(1).
On appeal, Colonial argues that the district court misconstrued P & S's contractual rights under the subcontract by giving an overly broad reading of the subcontract's exculpatory clause. Colonial contends that, notwithstanding the exculpatory clause, the subcontract gave P & S a contractual right to an equitable adjustment of its costs of performance should the Navy unreasonably delay its performance of the subcontract. Because the Navy did suspend construction at the Oil Spill Prevention Facility for an unreasonable length of time, Colonial maintains that when, after the suspension of work order was lifted, P & S resumed and completed performance of its obligations under the subcontract, an account for the proceeds at issue here was created. P & S completed its work on March 4, 1982. As of that date, the relevant federal tax liens had not yet been filed. Accordingly, Colonial concludes that its security interest in the funds is senior to the federal government's tax liens.
In both Rice Investment Co. v. United States, 625 F.2d 565 (5th Cir.1980) 7 and Texas Oil & Gas Corp. v. United States, 466 F.2d 1040 (5th Cir.1972), cert. denied sub nom. Pecos County State Bank v. United States, 410 U.S. 929, 93 S.Ct. 1367, 35 L.Ed.2d 591 (1973), this court engaged in lengthy discourses on the interaction between competing federal tax liens and private liens and the manner in which priority is to be determined. Because, as the parties agree, the tax code provisions merely provide the backdrop for what ultimately is an interpretation of federal contract law and state law, only a brief discussion of the tax code is necessary here.
Under section 6321(a) of the Internal Revenue Code, 8 the failure of a taxpayer to pay taxes after demand gives rise to a tax lien in favor of the United States which attaches to all property and rights to property, whether real or personal, belonging to such a person. Moreover, property acquired after the tax lien arises is reached by the lien. Since a federal tax lien is wholly a creature of federal law, the consequences of a lien that attaches to property interests, e.g., priority determinations, are matters of federal law. See United States v. Rodgers, 461 U.S. 677, 683, ...
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