Evans v. Ross
| Decision Date | 01 May 1964 |
| Docket Number | Civ. A. No. 8165. |
| Citation | 230 F. Supp. 795 |
| Parties | Harry T. EVANS v. A. C. ROSS, District Director of Internal Revenue for the District of Georgia. |
| Court | U.S. District Court — Northern District of Georgia |
Rogers & Feldman, Atlanta, Ga., for plaintiff.
Charles L. Goodson, U. S. Atty., Slaton Clemmons, Asst. U. S. Atty., Atlanta, Ga., for defendant.
On March 16, 1964, the defendant in the above-styled case moved this Court to enter an order dissolving the injunction granted on December 14, 1962, and which was continued by this Court's order of February 8, 1963, in that the injunctive relief granted is in violation of the provisions of Section 7421 (a) of the Internal Revenue Code of 1954. The defendant also moves to dismiss the complaint for the reason that the complaint fails to state a claim upon which relief can be granted; the complaint seeks a declaratory judgment with regard to a federal tax, such remedy not being available to the plaintiff pursuant to the provisions of Section 2201 of Title 28, United States Code; and there is no jurisdiction in this Court to entertain this suit and grant the relief requested.
The plaintiff herein contends that the restraining order now in effect was entered into by consent of the parties at the request of the United States Attorney, and that this Court, by order of February 8, 1963, has already ruled on the question of jurisdiction.
A hearing was had on these motions on April 7, 1964, in Atlanta, at which time this Court reached the conclusion that no exceptional and extraordinary circumstances are involved in this case, with the result that the relief prayed for in the complaint is unavailable to the plaintiff under Section 2201, Title 28, of the United States Code. Therefore, this Court lacks jurisdiction to act in the matter.
The plaintiff filed this suit to enjoin the District Director of Internal Revenue from completing a distraint sale of personal property belonging to the plaintiff, to prevent the Director from any further collection activities involving this tax, and to quash the assessment and strike it from the record. On December 14, 1962, an agreed order was entered by which the temporary restraining order was extended until further order of this Court and by which the plaintiff's personal property was returned to him upon his posting an appropriate bond.
On February 8, 1963, this Court entered its further order denying the defendant's motion to dismiss and continuing the temporary restraining order in full force and effect.
Section 7421 of the Internal Revenue Code of 1954 states that a suit to enjoin the assessment or collection of a federal tax shall not be maintained in any court. In some cases, a judicial exception has been recognized to this statutory prohibition, but only in the rare case where there are present both exceptional and...
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