Czieslik v. Burnet

• Decision Date: 20 January 1932
• Docket Number: No. 5778.,5778.
• Citation: 57 F.2d 715
• Parties: CZIESLIK v. BURNET, Commissioner of Internal Revenue, et al.
• Court: U.S. District Court — Eastern District of New York

57 F.2d 715 (1932)

CZIESLIK v. BURNET, Commissioner of Internal Revenue, et al.

No. 5778.

District Court, E. D. New York.

January 20, 1932.

John J. McGinniss, of Brooklyn, N. Y., for plaintiff.

Howard W. Ameli, U. S. Atty., by Albert D. Smith, Asst. U. S. Atty., both of Brooklyn, N. Y., for defendants.

CAMPBELL, District Judge.

This is a motion made by the defendants to dismiss the complaint herein on the ground that the court is without jurisdiction of the subject-matter or of the parties to this proceeding, and for such other and further relief as to the court may seem just and proper.

The plaintiff alleges that a paper purporting to be a lien for an income tax, in favor of the United States of America against him, was filed on May 8, 1928, in the office of the clerk of this court, by one Hugh G. Neary, as deputy collector of internal revenue for the First district of New York, claiming to so act as deputy in charge under Warren G. Price, collector, in the sum of $2,002,969.04, grouping four years (1918, 1919, 1920, 1921).

The plaintiff further alleges that said lien was improperly filed, in that the years 1918, 1919, 1920, and 1921, were grouped into one statement in said lien, and not showing any specific amount for any particular year, and that no such tax was properly and legally levied, and that there was no lien of which notice could be filed, setting forth specific reasons he assigns in support of his contention, and that said lien is null and void, and that the said defendants David Burnet, as Commissioner of Internal Revenue, and Walter E. Corwin, as collector of internal revenue, First district of New York, have continued the lien and refused to cancel the same, to the great and manifest injury of the plaintiff, and that plaintiff has no adequate remedy at law.

The plaintiff further alleges that David H. Blair was at the time of the filing of said lien Commissioner of Internal Revenue, and has since been succeeded as such Commissioner by the defendant David Burnet, and that Warren G. Price was at the time of the filing of said lien collector of internal revenue, First district of New York, and has since been succeeded as such collector by the defendant Walter E. Corwin.

The law with reference to when the lien shall arise and as to filing the same is found in title 26, section 115, U. S. Code (26 USCA § 115), originally section 3186 Revised Statutes, and so much thereof as is necessary for consideration herein reads as follows:

"§ 115. Lien for taxes. (a) If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person. Unless another date is specifically fixed by law, the lien shall arise at the time the assessment list was received by the collector and shall continue until the liability for such amount is satisfied or become unenforceable by reason of lapse of time.

"(b) Such lien shall not be valid as against any mortgagee, purchaser, or judgment creditor until notice thereof has been filed by the collector — * * *

"(2) In the office of the clerk of the United States District Court for the judicial district in which the property subject to the lien is situated, whenever the State or Territory has not by law provided for the filing of such notice; or * * *

"(c) Subject to such regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe, the collector of internal revenue charged with an assessment in respect of any tax —

"(1) May issue a certificate of release of the lien if the collector finds that the liability for the amount assessed, together with all interest in respect thereof, has been satisfied or has become unenforceable; * * *

"(3) May issue a certificate of partial discharge of any part of the property subject to the lien if the collector finds that the fair market value of that part of such property remaining subject to the lien is at least double the amount of the liability remaining unsatisfied in respect of such tax and the amount of all prior liens upon such property."

The lien so filed is the property of the United States of America, not subject to disposition of the collector of internal revenue. Maryland Casualty Co. v. Charleston Lead Works (D. C.) 24 F.(2d) 836, 838.

The lien so filed is the property of the United States of America, and neither of the defendants has any interest therein, and no determination can be had in an action to which the United States is not a party. Maryland Casualty Co. v. Charleston Lead Works, supra; Stafford Mills v. White (D. C.) 41 F.(2d) 58.

The United States of America is a sovereign and cannot be sued without its consent (State of Louisiana v. McAdoo, 234 U. S. 627, 34 S. Ct. 938, 58 L. Ed. 1506), and a waiver by the United States of America of sovereign immunity from suit must be strictly construed. U. S. v. Michel, 282 U. S. 656, 51 S. Ct. 284, 75 L. Ed. 598.

The action at bar is in effect an action to remove a lien, and the United States has not consented to be sued to remove a lien nor to compel the taking of steps for the...