Central Bank of Tampa v. US, 92-1389-CIV-T-17B.

• Decision Date: 06 October 1993
• Docket Number: No. 92-1389-CIV-T-17B.,92-1389-CIV-T-17B.
• Parties: CENTRAL BANK OF TAMPA, a State Chartered Banking Institution, Plaintiff, v. UNITED STATES of America; America Cruising Yacht Corporation; Ted Irwin; Irwin Yacht and Marine Corporation; Kirk Whalen; John Swisher, Defendants.
• Court: U.S. District Court — Middle District of Florida

833 F. Supp. 892

CENTRAL BANK OF TAMPA, a State Chartered Banking Institution, Plaintiff, v. UNITED STATES of America; America Cruising Yacht Corporation; Ted Irwin; Irwin Yacht and Marine Corporation; Kirk Whalen; John Swisher, Defendants.

No. 92-1389-CIV-T-17B.

United States District Court, M.D. Florida, Tampa Division.

October 6, 1993.

Paul Gerard McDuffee, II, Law Offices of Paul G. McDuffee, II, Tampa, FL, for plaintiff.

Michael A. Cauley, U.S. Attys. Office, M.D. FL, Tampa, FL, David N. Geier, U.S. Justice Dept., Tax Div., Washington, DC, for defendant U.S.

Dennis Jay Levine, Cramer, Haber, McDonald & LeVine, P.A., Tampa, FL, for defendant America Cruising Yacht Corp.

John Edwin Swisher, Dillinger & Swisher, P.A., St. Petersburg, FL, for defendants Ted Irwin and Irwin Yacht & Marine.

Robert Casassa, Langford, Hill, Mitchell, Trybus & Whalen, P.A., Tampa, FL, for defendant Kirk Whalen.

John Edwin Swisher, pro se.

ORDER ON MOTION FOR SUMMARY JUDGMENT

KOVACHEVICH, District Judge.

This cause is before the Court on motion for summary judgment filed by Defendants Ted Irwin, Irwin Yacht and Marine Corporation and John Swisher. The present action for interpleader, commenced in state court, was removed to this Court by Defendant, the United States.

Federal Rule of Civil Procedure 56(c) provides that the trial judge shall grant summary judgment if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). This circuit clearly holds that summary judgment should only be entered when the moving party has sustained its burden of showing the absence of a genuine issue as to any material fact when all the evidence is viewed in the light most favorable to the non-moving party. Sweat v. The Miller Brewing Co., 708 F.2d 655 (11th Cir.1983). Any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-7 (5th Cir.1979), quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969).

When a properly supported motion for summary judgment is made, the nonmoving party must show specific facts which indicate there is a genuine issue for trial. Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Specifically, the Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986),

In our view the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322, 106 S.Ct. at 2552.

Accordingly, the non-moving party must go beyond the pleadings and offer specific facts through affidavits, depositions, answers to interrogatories, or admissions on file which show there is a genuine issue for trial. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. The evidence offered by the non-moving party in response to a motion for summary judgment must establish the existence of a genuine issue of material fact by the substantive evidentiary standard of proof that would apply at the trial on the merits. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

Applying the standard set out above, this Court finds that, although there appears to be no genuine issue of material fact, the motion for summary judgment must be denied as a matter of law.

FACTS:

On January 14, 1992, the case of Ted Irwin and Irwin Yacht and Marine Corporation v. America Cruising Yacht Corporation, Case No. 92-272-17 was filed in the Sixth Judicial Circuit in and for Pinellas County, Florida. The plaintiffs in that action requested injunctive relief, eviction, and damages in the amount of $18,000.00 per month for unpaid rent on rental property, as well as royalties due for vessels sold by America Cruising Yacht Corporation. Prior to final disposition of the case, the plaintiffs in that action filed an Emergency Petition on January 21, 1992 seeking an order enjoining the transfer of two vessels owned by America Cruising Yacht Corporation. On January 28, 1992, the state circuit court entered an order granting the Emergency Petition and enjoining the transfer of two vessels owned by America Cruising Yacht Corporation.

The plaintiff then filed a Motion to Deposit Money into the Registry of the Court on February 24, 1992. The motion was directed toward various cashier's checks purchased by America Cruising Yacht Corporation that were made payable to either Ted Irwin or Irwin Yacht and Marine Corporation. At the time the motion was filed these checks were in the possession of the attorney for America Cruising Yacht Corporation. On April 1, 1991, upon oral motion of America Cruising Yacht Corporation, an Order was entered by the state court releasing one of the vessels and requiring counsel for America Cruising Yacht Corporation therein to hold the $52,000.00 in cashier's checks made payable to Ted Irwin and Irwin Yacht and Marine Corporation.

On September 31, 1991 and December 31, 1991, prior to the initiation of the action in state court, a duly authorized delegate of the Secretary of the Treasury assessed federal income taxes against Defendant, America Cruising Yacht Corporation in the amount of $38,542.76 and $40,589.76, respectively. On April 9, 1992, a Notice of Levy from the Department of Treasury-Internal Revenue Service was received by Kirk Whalen, counsel for the defendant in the state action. A Notice of Federal Tax Lien outlining those tax liabilities was filed in the public records for Pinellas County, Florida, on August 7, 1992.

Counsel for America Cruising Yacht Corporation, who was ordered by the court to hold the cashier's checks, filed a Motion to Release Funds, which was denied on July 23, 1992. Prior to rendering that order denying the Motion to Release Funds, the state court ordered the funds held to be deposited in a joint account with counsel for the plaintiff. The funds were deposited with Central Bank of Tampa.

On October 21, 1992, as part of the final judgment in the case, the state court ordered that the money held in the joint account, be released to plaintiffs Ted Irwin and Irwin Yacht and Marine Corporation. In that order, the state court also declared that the funds did not belong to the defendant, America Cruising Yacht Corporation at the time that the Notice of Levy was received by defendant's attorney.

The present action for interpleader was commenced by Central Bank of Tampa due to the competing claims to the funds deposited with the bank. The action was removed from state court, and is now before this court, upon motion by Defendant, United States.

DISCUSSION:

Under Sections 6321 and 6322 of the Internal Revenue Code, 26 U.S.C. § 6321, § 6322, (hereinafter "the Code") the United States obtains a perfected lien upon all property of the taxpayer from the date of assessment. Capuano v. United States, 955 F.2d 1427, 1429 (11th Cir.1992). However, federal tax liens are not self-executing, and affirmative action is required by the Internal Revenue Service in order to enforce the collection of the unpaid taxes. United States v. National Bank of Commerce, 472 U.S. 713, 719, 105 S.Ct. 2919, 2924, 86 L.Ed.2d 565 (1985). Additionally, federal tax liens do not have automatic priority over all other liens, as such priority is determined by the common law principle that "the first in time is the first in right." United States By and Through Internal Revenue Service v. McDermott, ___ U.S. ___, ___, 113 S.Ct. 1526, 1528, 123 L.Ed.2d 128 (1993). Therefore, affirmative action is also required in order for a tax lien to have priority over a choate lien that may come into existence after the perfection of the tax lien. United States v. Jenison, 484 F.Supp. 747, 755 (1980).

Sections 6323(a) and (f) of the Code indicate that a lien imposed by Section 6321 of the Code will not be valid against any purchaser, holder of security interest, mechanic's lienor, or judgment lien creditor until notice of the lien is filed in the state in which the property subject to the lien is situated. A creditor that achieves the status of a judgment lien creditor before the filing of the government's notice of tax lien has priority over the United States regarding the property subject to the judgment lien, even if the tax assessment which perfected the tax lien occurred before the judgment was rendered. Jenison, 484 F.Supp. at 755. However, once a notice of tax lien is filed in the proper forum, the tax lien takes priority over subsequent judgment lien creditors. Id.

In the present action, the United States filed the required Notice of Tax Lien on August 7, 1992. The judgment rendered by the state court in favor of interpled Defendants Ted Irwin and Irwin Yacht and Marine Corporation was not entered until October 21, 1992. Clearly, the judgment occurred after the date that the federal tax lien had obtained priority over judgment liens or other choate liens. As a result, the tax lien held by the United States superseded any interest that Ted Irwin and Irwin Yacht and Marine Corporation gained in property held by America Cruising Yacht Corporation at the time of the judgment rendered by the state court. However, due to the complexity of the factual situation this finding does not entirely resolve the matter.

One remaining question centers around the state court's order, prior to entry of final judgment, requiring the funds in dispute to be held and then deposited in a joint account pending the outcome of the case. There is also some question surrounding the ownership of the cashier's checks at the time that the federal tax lien was assessed and perfected. However, neither of these questions raises a factual issue, and both are...