Givan v. Cripe
| Decision Date | 09 February 1951 |
| Docket Number | No. 10275.,10275. |
| Parties | GIVAN v. CRIPE et al. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Merlin M. Dunbar, Lucien L. Dunbar, Indianapolis, Ind., for appellant.
Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, S. Walter Shine, Assts. to Atty. Gen., Matthew E. Welsh, U. S. Atty., Indianapolis, Ind.
A. F. Prescott, Homer R. Miller, Sp. Assts. to the Atty. Gen., for appellees.
Before KERNER, FINNEGAN, and LINDLEY, Circuit Judges.
Plaintiff, the receiver of the taxpayer corporation, appeals from the dismissal of his petition "to enjoin and restrain unlawful acts of defendants" who are the Collector of Internal Revenue for the District of Indiana and a bank in which the taxpayer maintained a checking account and a safe deposit box. We shall refer to these defendants as the Collector and the Bank.
The unlawful acts sought to be restrained relate to steps taken by the Collector for the purpose of collecting income and excess profits taxes in the total sum of $156,302. According to the petition, written notice of assessment of the taxes and demand for immediate payment thereof was delivered personally to the taxpayer on February 17, 1950, and, on the same day, notice of levy was served on the Bank, which notice and attempted levy it alleges were in violation of §§ 3690 and 3692 of the Internal Revenue Code, 26 U.S.C.A. §§ 3690, 3692.
On February 18, plaintiff was appointed by the Superior Court of Marion County, Indiana, receiver of the taxpayer to take charge of taxpayer's property and assets including all checking accounts and safe deposit boxes, and to operate the taxpayer for the purpose of filling all orders on hand. And he obtained leave of that court to file the petition or complaint here involved.
In this petition he alleged that the Collector threatened to issue a warrant of distraint against the corporation's checking account and safe deposit box and to sell the contents if the same were surrendered to him; that if the Collector were permitted to pursue his illegal acts this plaintiff would not be able to carry out the orders of the state court which had jurisdiction of the assets and property of the corporation; that the plaintiff could not operate said corporation without the monies on deposit and the property in the box; that his failure to finish work in process and on order would result in such materials and labor theretofore expended thereon becoming worthless; and that the loss would be irreparable. He therefore prayed that the Collector be required to release the money on deposit and the safe deposit box and that the Bank be required to turn them over to him; that the notice of levy be quashed; and that the Collector be "perpetually enjoined and restrained from in any manner attempting to enforce the collection of the demands * * * and from in any manner so attempting to levy upon the money on deposit and to sell the contents of the safe deposit box * * * and for such other and proper relief to which the plaintiff may be entitled."
The Bank filed answer stating that it had refused to deliver the property to plaintiff in obedience to the notice of levy. The Collector filed motion to dismiss on the ground that the complaint failed to state any grounds upon which any relief could be granted as against him. The court sustained the motion and dismissed the action as to him. The appeal is from that order of dismissal.
The notice of levy is not attached to the petition, and the petition does not state the year or years for which the taxes were assessed. However, plaintiff states in his brief that they were for the years 1942 and 1943, and the Collector calls our attention to the fact that review had been had by the Tax Court which rendered its decision on October 24, 1949. 13 T.C. 636. The principal question there presented was whether the income for the years involved was due in any material part to the development of patents, formulae and manufacturing processes in prior years rather than to an increased wartime demand for the taxpayer's products, and the court determined the issues adversely to the taxpayer. Since there was no petition for review filed in this court, that decision became final ninety days thereafter.
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Ra ex rel. Lewis v. Internal Revenue Serv.
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