Cannon v. Nicholas

• Citation: 80 F.2d 934
• Decision Date: 09 December 1935
• Docket Number: No. 1289,1290.,1289
• Parties: CANNON v. NICHOLAS, Collector of Internal Revenue (two cases).
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

80 F.2d 934 (1935)

CANNON v. NICHOLAS, Collector of Internal Revenue (two cases).

Nos. 1289, 1290.

Circuit Court of Appeals, Tenth Circuit.

December 9, 1935.

Dayton Denious, of Denver, Colo. (Wilbur F. Denious and Hudson Moore, both of Denver, Colo., on the brief), for appellants.

S. E. Blackham, Sp. Asst. to the Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., Sewall Key, Norman D. Keller, and J. E. Garvey, Sp. Assts. to the Atty. Gen., and Ivor O. Wingren, Asst. U. S. Atty., and Thomas J. Morrissey, U. S. Atty., both of Denver, Colo., on the brief), for appellee.

Before PHILLIPS, McDERMOTT, and BRATTON, Circuit Judges.

McDERMOTT, Circuit Judge.

To collect income taxes for 1928 due from H. Brown Cannon, the collector seized under warrant of distraint three policies of insurance upon the life of Cannon, and one annuity contract issued to him. The collector then advertised for sale at public auction those policies and the contract, describing them only as "Three life insurance policies issued by the Capitol Life Insurance Company of Denver, Colo., upon the life of H. Brown Cannon as follows: One for the sum of $10,000; one for the sum of $5,000; one for the sum of $2,000; one annuity insurance policy issued by the Travelers Insurance Company of Hartford, Conn., upon the life of H. Brown Cannon for the sum of $25,000."

Before the sale date, these suits were brought to quash the warrant of distraint; the policies were deposited with the court to abide the litigation, and the sale called off. The essential facts were stipulated, and the bills dismissed on their merits.

No. 1290.

This case involves the annuity contract, and Mr. Cannon is the plaintiff. On September 1, 1928, for a single premium of $25,000, the issuing company agreed to pay Cannon $1,000 a year during his life, and upon his death to pay his executors $25,000 plus a proportion of the current annuity. The cash and loan value of this contract when the levy was made, was $24,375, against which Cannon had borrowed $20,272.34.

There is little room for the argument that this large sum, invested in an annuity, is exempt from taxes; if taxpayers could invest their fortunes in annuities and stand aloof when the tax collector comes around, payment of taxes would be too often a voluntary matter. To collect its revenues, the power of the government over the property of the taxpayer is plenary. State exemption laws, ex proprio vigore, do not apply. Fink v. O'Neil, 106 U. S. 272, 1 S.Ct. 325, 27 L.Ed. 196. Congress has not in the revenue laws, as it did in bankruptcy, recognized state exemption statutes; nor has it exempted either annuity contracts or life insurance policies.

The statutes governing the collection of taxes are broad and comprehensive. By 26 U.S.C.A. § 115 (see 26 U.S.C.A. § 1560) taxes are decreed to be a lien "upon all property and rights to property, whether real or personal" belonging to the taxpayer. By section 116 (see 26 U.S.C.A. § 1580) the collector is authorized to collect by distraint or sale "the goods, chattels, or effects, including stocks, securities, bank accounts, and evidences of debt" of the delinquent. By section 117 (see 26 U.S.C.A. § 1582) the collector is authorized to levy "upon all property and rights to property, except such as are exempt by the preceding section, belonging to such person, or on which the said lien exists." By section 118 (see 26 U.S.C.A. § 1611) all persons are required on demand of a collector who has or is about to distrain "on any property, or rights of property" to exhibit all books, etc. By section 129 (see 26 U.S.C.A. § 1613) the collector is authorized to "seize and sell any of the property, real or personal (except property exempt from distraint and sale under section 3187 of the Revised Statutes 26 U.S.C.A. § 116, see 26 U.S.C.A. § 1581), or any right or interest therein." By 26 U.S.C.A. § 1268a (see 26 U.S.C.A. § 1610 (a, b) any person in possession of "property, or rights to property, subject to distraint, upon which a levy has been made" is required to surrender such property to the collector.

An ingenious argument is made that because section 116 (see 26 U.S.C.A. § 1580), specifies "stocks, securities, bank accounts, and evidences of debt," and because "bank accounts" were brought into the statute in 1924, Congress intended to exempt all intangible property except those listed. But the doctrine of expressio unius est exclusio alterius, while at times an aid in construction of doubtful language, does not avail here. In the first place, reading the various sections of the statutes devoted to collection of taxes, it is clear that Congress intended to subject all of a taxpayer's property except that specifically exempted to the payment of taxes. Again, the enumeration here follows the word "including" which has various shades of meaning, sometimes of restriction and sometimes of enlargement.¹ We have no doubt that the word here was used from an excess of caution, that is, to point out certain classes of property which Congress was fearful a collector might overlook. We do not believe, in the light of the sweeping language used throughout these statutes, that Congress intended to limit distraint to tangible property and to the specified classes of intangibles. No reason is apparent why "stocks and securities" should be subject to levy and an annuity contract not. Again, in a true if not a colloquial sense, an annuity contract is an "evidence of debt."

We hold that this annuity contract is subject to taxes and to distraint. The notice of sale given has spent its force, but it is proper to say that the notice given was not specific enough as to the terms of the contract, its surrender value, loans against it, etc., fairly to apprise the public as to what they were invited to bid on. It is possible, as suggested by counsel for appellant, that the full surrender value can be realized without jeopardizing the rights of the government or possibly sacrificing the rights of appellant at a public sale, by compelling the company to pay the balance of the surrender value to the collector under 26 U.S.C.A. § 1268a (see 26 U.S.C.A. § 1610 (a, b).

The order in Number 1290 is affirmed.

No. 1289.

The appeal in Number 1289 presents a much more difficult question. That suit is by Mrs. Cannon, the beneficiary in two policies issued on the life of Mr. Cannon, one a twenty-year endowment for $2,000, maturing in 1936. By its terms, that sum is to be paid Mrs. Cannon if her husband dies before 1936, otherwise to him. The other is a straight life policy for $10,000 with Mrs. Cannon the beneficiary. Right is reserved in Cannon to revoke and change the beneficiary in both policies.² The record does not disclose the loan or cash value of the $2,000 policy, but it must nearly equal the face, for it matures in a few months. The loan or cash value of the $10,000 policy, now in its ninth year, is nearly $7,000.

Mrs. Cannon contends that, under the Colorado decisions, she is the owner of these policies, and that her property cannot be subjected to the payment of her husband's taxes. The Supreme Court of the United States, in the Community Property and other cases, has held that state law determines the ownership of property subject to its jurisdiction, and that a wife's property cannot be taken for her husband's taxes. Poe v. Seaborn, 282 U.S. 101, 51 S.Ct. 58, 75 L.Ed. 239; Hoeper v. Tax Commission, 284 U.S. 206, 52 S.Ct. 120, 76 L.Ed. 248; Helvering v. City Bank Farmers Trust Company, arguendo, 56 S. Ct. 70, 88 L.Ed. ___.

The Supreme Court has also held, Chase Nat. Bank v. United States, 278 U. S. 327, 49 S.Ct. 126, 73 L.Ed. 405, 63 A. L.R. 388, that many of the legal incidents of ownership are vested in the insured under a policy payable to another upon his death, where the right is reserved in him to revoke the beneficiary, and among those incidents enumerates the power to pledge the policy for a loan and to dispose of the proceeds for his own benefit during his life. Mr. Cannon has the power to borrow substantial sums upon these policies and to use the proceeds for his own benefit, and that without surrendering the right to keep his insurance in force by paying premiums.³

Since the notice advertised for sale the entire policies, and not whatever interests therein belonged to the taxpayer, our task is to ascertain whether under Colorado law Mrs. Cannon was vested with any of the incidents of ownership.

In Hendrie & Bolthoff Mfg. Co. v. Platt, 13 Colo.App. 15, 56 P. 209, 211, creditors undertook to reach the proceeds of several policies on the life of their debtor, after his death and after his beneficiary had received the proceeds. Two of the policies had endowment features. The opinion does not state that the insured reserved the right to change the beneficiary. There was then no Colorado statute exempting insurance money from debts. After an exhaustive review of the cases, it was held that creditors could not reach life insurance money, the court saying that the fund arose from the beneficiary's insurable interest in the life of her husband; that it did not exist until death; that public policy required that widows and children should not be left destitute; that "the moment it is issued, its ownership vests in the beneficiary," "the title thereto had become vested in her," that until the maturity of an endowment policy "her title was as absolute as if the insurance had been upon any other plan."

In National Bank of Commerce v. Appel Clothing Co., 35 Colo. 149, 83 P. 965, 966, 4 L.R.A.(N.S.) 456, 117 Am.St.Rep. 186, a creditor undertook to reach the surrender value of an endowment policy, with right reserved to change the beneficiary, before the maturity of the endowment or the death of the insured. There was no allegation of insolvency, or that the insured was indebted when the policy was issued. Without deciding the rule applicable in such state of the case, the court held that the beneficiary...