Essex v. Vinal

• Decision Date: 06 June 1974
• Docket Number: No. 73-1709 to 73-1711.,73-1709 to 73-1711.
• Citation: 499 F.2d 226
• Parties: Syntha ESSEX, Administratrix, dbn, cta of the Estate of Harry E. Judd, Deceased, Appellant, v. Richard P. VINAL et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

499 F.2d 226 (1974)

Syntha ESSEX, Administratrix, dbn, cta of the Estate of Harry E. Judd, Deceased, Appellant, v. Richard P. VINAL et al., Appellees.

Nos. 73-1709 to 73-1711.

United States Court of Appeals, Eighth Circuit.

Submitted March 15, 1974.

Decided June 6, 1974.

Rehearings and Rehearings Denied July 17, 1974.

Harry H. Foulks, Omaha, Neb., for appellant.

William H. Brown, Atty., Tax Div., Dept. of Justice, Washington, D. C., for appellee.

Before GIBSON, BRIGHT and STEPHENSON, Circuit Judges.

Rehearings and Rehearings En Banc Denied July 17, 1974.

GIBSON, Circuit Judge.

These consolidated cases present a somewhat novel question for our review. The plaintiff, administratrix of the estate of Harry E. Judd, who died September 8, 1965, claims that estate taxes paid by the estate were not "taxes" but rather "deposits" as these taxes had not allegedly been assessed. These cases come before us from the District Court's¹ grant of the United States' Motion to Dismiss for lack of subject matter jurisdiction.²

In order to understand plaintiff's contentions, the background details of this litigation must be set forth. The decedent, Harry E. Judd, died September 8, 1965. Int.Rev.Code of 1954, § 6075 and Treas.Reg. § 20.6075-1 (1958) in effect at the time of decedent's death required an estate tax return to be filed within 15 months after the date of death. On December 8, 1966 (the last day of the 15-month period), the estate made a $55,000 payment and requested an extension of time to file the estate tax return. This payment was assessed December 16, 1966. On January 9, 1967, the estate tax return was filed with a payment of the remaining tax shown as due on the return, $5,132.21, together with interest of $26.52. The above amount was assessed January 13, 1967. As a result of audit, a deficiency of $13,372.40 was determined by IRS. Statutory notice of deficiency was mailed March 10, 1969. After expiration of the 90-day period for seeking Tax Court review, the deficiency was assessed August 1, 1969. This amount, together with interest of $2,192.34, was paid September 15, 1969.

A claim for refund of the above amounts was made to the Commissioner September 14, 1970. On December 13, 1970, this claim was disallowed. As to the $55,000 and the $5,158.73 payments, the reason for denial was that the statute of limitations in Int.Rev.Code of 1954, § 6511³ had expired. The refund claim for the $13,372.40 deficiency was also denied by the Commissioner and a suit for refund of this payment, for which a timely refund claim had been made, is presently pending in federal district court. The plaintiff also, prior to the instant action, filed a suit in the district court for a writ of mandamus to compel the Internal Revenue Service to release its assessment records. Upon voluntary compliance this suit was dismissed by the District Court. The dismissal was affirmed on appeal under Local Rule 14. Essex v. Walters, 475 F.2d 1407 (8th Cir.), cert. denied, 412 U.S. 919, 93 S.Ct. 2732, 37 L.Ed.2d 144 (1973).

Plaintiff then brought the instant suits, styled as class actions, requesting recovery of some $28 million in toto. Her claim in each suit is identical. She alleges that each of the three payments was a deposit to be used to satisfy any tax liability assessed, but since no tax liability was assessed, these monies are being illegally retained by the Service. The District Court concluded that these suits were actually suits against the United States, that there had been no waiver of sovereign immunity, and thus it was without jurisdiction.

The decision in this case requires determination of three questions: (1) whether the suit is actually a suit against the United States; (2) whether the monies were actually a deposit or were paid as taxes; and (3) if the monies were paid as taxes, and the suit is actually against the United States whether sovereign immunity has been waived.

Plaintiff argues that this is not a suit against the sovereign because the actions of the defendants⁴ were ultra vires their statutory authority and thus fall into the first exception regarding the permissibility of maintaining suits against government officials restated in Dugan v. Rank, 372 U.S. 609, 621-622, 83 S.Ct. 999, 1007, 10 L.Ed.2d 15 (1963):

Those exceptions are (1) action by officers beyond their statutory powers and (2) even though within the scope of their authority, the powers themselves or the manner in which they are exercised are constitutionally void.

We do not need to decide whether or not these acts were ultra vires for "the existence of a right to sue the officer is not the issue in this case * * * but the issue here is whether this particular suit is not also, in effect, a suit against the sovereign." Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687, 69 S.Ct. 1457, 1460, 93 L.Ed. 1628 (1949). We hold that it is. This is not a suit to recover damages for an agent's personal actions, rather it requests the return of monies deposited in the United States Treasury. The relief sought is, in fact, relief against the United States for alleged wrongs committed by its subordinate officials and as such is barred, absent an effective waiver.

Since the sovereign may not be sued, it must also appear that the action to be restrained or directed is not action of the sovereign. The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet that requirement.

Larson v. Domestic & Foreign Commerce Corp., supra at 693.

Thus, before determining whether there has been any waiver of immunity in these cases, the character of the monies paid must be determined. Plaintiff asserts that the decisions in Rosenman v. United States, 323 U.S. 658, 65 S.Ct. 536, 89 L.Ed. 535 (1945), and Brafman v. United States, 384 F.2d 863 (5th Cir. 1967), require a conclusion that these monies are deposits rather than payments of taxes.

It is clear that the monies paid were not intended as deposits but as taxes. The initial $55,000 payment was made on the due date for filing the estate tax return at the same time that an extension of time for filing was requested. The payment of $5,132.21 plus interest of $26.52 made January 9, 1967, was made as a payment of the remainder of tax due as shown on the return filed the same date. And the last payment of $13,372.40 plus interest of $2,192.34 in response to a statutory notice of deficiency was obviously intended as a payment of tax.

The Service treated these payments as taxes and not as deposits. The advance payment of $55,000 December 8, 1966, was assessed December 16, 1966, pursuant to the authority contained in Int. Rev.Code of 1954, § 6213(b) (3); Treas. Reg. § 301.6213-1(b) (3) (1954); and Rev.Proc. 64-13⁵ allowing advance payments to be assessed upon receipt. The later payments also were assessed as taxes instead of being held as deposits by the Service.

The plaintiff's legal argument boils down to the contention that these assessments made were void because Treas. Reg. § 301.6203-1 (1961) was not complied with. Int.Rev.Code of 1954, § 6203 specifies that an assessment

shall be made by recording the liability of the taxpayer in the office of the Secretary or his delegate in accordance with rules or regulations prescribed by the Secretary or his delegate.

Treas.Reg. § 301.6203-1 provides in pertinent part:

Method of Assessment.—The district director and the director of the regional service center shall appoint one or more assessment officers. The district director shall also appoint assessment officers in a Service Center servicing his district. The assessment shall be made by an assessment officer signing the summary record of assessment. (emphasis supplied).

The asserted noncompliance with the regulation is the allegation that those officers who signed the assessment certificates were not in fact "assessment officers." Accepting arguendo that this is so, we find nothing in Rosenman or Brafman to support the plaintiff's legal contention that the assessments are thus void and the payments converted to deposits subject to recovery in the instant suit.

In Rosenman, the Commissioner's claim was that the date of a $120,000 advance payment should govern the running of the statute of limitations for filing a claim for refund. This contention was rejected because the payment had been held in a special suspense account and was not considered as "payment" until the amount of tax due was actually assessed by Internal Revenue. There is no doubt that had the deposit been assessed upon receipt as was done in the present case, it would have been considered "payment" at that time.

Brafman is closer to plaintiff's position. In Brafman, the Commissioner in 1962 attempted to impose transferee liability for estate taxes upon a beneficiary of the estate of a decedent who died in 1951. This liability was predicated upon an assessment certificate prepared August 1, 1956, after a Tax Court decision in favor of the Government. The Brafman court began with the proposition that there could be no transferee liability if there was no assessment within the statutory period, which in Brafman terminated September 28, 1957. The assessment certificate of August 1, 1956, was unsigned. Treas.Reg. § 301.6203-1, supra, was interpreted to require signature on the assessment certificate. An unsigned certificate was determined to be wholly void, thus there was no assessment upon which to base transferee liability.

So far as our research has disclosed, plaintiff presents an argument of first impression. Arguably, it would be permissible to interpret Treas.Reg. § 301.6203-1 to void a signed assessment if not signed by an authorized assessment officer. However, we think such an approach is totally unwarranted. The distinction, as we see it, between Brafman and the present case is that Brafman involved the facial invalidity of the assessment; any person familiar with the...