Holland v. Nix, 14918.
| Decision Date | 23 June 1954 |
| Docket Number | No. 14918.,14918. |
| Citation | 214 F.2d 317 |
| Parties | HOLLAND v. NIX. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Elmer J. Kelsey, Sp. Asst. Atty. Gen., H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, Fred Rita, Sp. Assts. Atty. Gen., James W. Dorsey, U. S. Atty., Charles D. Read, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellant.
Hal Lindsay, Atlanta, Ga., Shirley C. Boykin, Carrollton, Ga., for appellee.
Before HOLMES and STRUM, Circuit Judges, and THOMAS, District Judge.
Cecil Nix, appellee here, plaintiff below, sought and obtained from the district court a judgment against appellant, enjoining him from enforcing against any funds or properties of appellee certain assessments and warrants of distraint.
The assessments in question had been made against Nix by Holland as Director of Internal Revenue for the District of Georgia, upon the theory that Nix was "a transferee of a transferee" from his son-in-law, one Robert L. Archer, who owed the government considerable sums of money in taxes. At the time Nix filed his complaint, the government had levied on various properties owned by Nix, including his home and bank account, for the purpose of collecting the assessments made against Nix as transferee. The theory of the government was that Archer, to avoid payment of the assessments against him, had transferred certain properties to his wife, who, in turn, had transferred them to her father, Nix.
When the complaint came on for hearing on the order to show cause and on the motion of the government to dismiss for want of jurisdiction,1 the attorneys for the government stated in open court at the start of the hearing that it would be shown the transactions in question were fraudulent; however, the government introduced no testimony of any kind.
Upon full hearing, the evidence showed without dispute that over a long period of time prior to the issuance of the assessment against Archer, he had become indebted to the plaintiff Nix on account of various loans and other lawful, though, on the part of Archer, not commendable transactions. Certain written acknowledgments of this indebtedness had been given to Nix by Archer and his wife. Later, in some instances, Archer did make certain conveyances to his wife, who, in turn, made conveyances to her father, the plaintiff; but the district judge found these were executed, delivered, and recorded in good faith to secure an indebtedness incurred and acknowledged in writing long before any notice had been given to plaintiff of the claims by the government against Archer. Some of these conveyances purported to be warranty deeds, though it appeared from the evidence that they were not sales but had been given to secure loans. Since possession was not given pursuant to the deeds, it was permissible under Georgia law to show by parol testimony that the deeds were given as security. This testimony was produced and not denied.
There was no testimony to controvert the plaintiff's contention that he had taken these various deeds from his daughter in good faith to secure the indebtedness due him from his daughter and son-in-law; nor was it controverted that the security taken by the plaintiff was inadequate to repay him some $7,800 plus interest, which plaintiff claimed was still due and unpaid. The evidence further showed that the plaintiff himself did not owe the government any taxes whatsoever on his own account, though the lien against him as "transferee of a transferee" was in the sum of $33,714.10.
Prior to the hearing, the Director had filed his motion to dismiss plaintiff's case, which motion the trial court overruled at the hearing on May 13, 1953. At this hearing the Director did not, as has been stated, put on any testimony, but stood on his motion to dismiss. The Director's sole defense was based upon Section 3653 of the Internal Revenue Code, to the effect that no suit shall...
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Martin v. Andrews
...have destroyed intangible assets for which there could be no reimbursement.11 In Shelton v. Gill, 4 Cir., 202 F.2d 503, and Holland v. Nix, 5 Cir., 214 F.2d 317, the injunction suit was not brought by or on behalf of a taxpayer. In four cases cited by appellant,12 the exaction sought to be ......
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