Katsh v. Rafferty

• Decision Date: 06 January 1926
• Docket Number: No. 2689.,2689.
• Citation: 12 F.2d 450
• Parties: KATSH v. RAFFERTY, Collector of Internal Revenue.
• Court: U.S. District Court — Eastern District of New York

12 F.2d 450 (1926)

KATSH v. RAFFERTY, Collector of Internal Revenue.

No. 2689.

District Court, E. D. New York.

January 6, 1926.

Harry L. Kreeger, of New York City, for petitioner.

William A. DeGroot, U. S. Atty., of Brooklyn, N. Y., and Guy O. Walzer, Asst. U. S. Atty., of New York City.

CAMPBELL, District Judge.

This is a motion for an order striking out the defendant's answer, on the grounds that it is sham and frivolous, and interposed in bad faith, and for a writ of mandamus directing and compelling John T. Rafferty, United States collector of internal revenue for the First district of New York, to cancel and withdraw a certain letter written by the said John T. Rafferty to the Fidelity & Deposit Company of Maryland, on the 18th day of June, 1924, which said letter purports to assert a lien and to seize and levy upon the proceeds of an insurance policy issued by the Fidelity & Deposit Company of Maryland to Rose Gross, and for such other, further, and different relief as to the court may seem just and proper in the premises.

The defendant, on the return day of this motion, obtained leave to serve, and has served, an amended answer, which directly raises issues of fact, and is in no sense sham or frivolous; therefore no further consideration need be paid to that branch of the motion. The letter which plaintiff seeks to have canceled and withdrawn reads as follows:

"Treasury Department, Internal Revenue Service.

"Brooklyn, N. Y. C., June 18, 1924.

"Fidelity & Deposit Co., 107 Liberty Street, New York, N. Y. — Gentlemen: You are hereby notified that there is now due, owing, and unpaid by A. R. Gross and Rose Gross to the United States of America internal revenue taxes in the amount of $50,653.25. You are hereby further notified that all properties and rights, titles, and interest to claim offered by A. R. Gross and Rose Gross, in connection with the theft of jewelry, are hereby seized and levied upon for the payment of the aforesaid taxes, together with interest and penalties.

"Respectfully, Signed "John T. Rafferty "GE:HA Collector."

The defendant claims that an income tax is due and owing from A. R. Gross and Rose Gross for the calendar year 1920 in the sum of $16,688.38, and for the calendar year 1921 in the sum of $33,964.89, and that the same has not been paid. The return for 1920 was filed by A. R. Gross, and purported to be a joint return for husband and wife, and the return for 1921 was filed by the defendant, after examining the said Rose Gross and A. R. Gross, and, although the return was against the name of A. R. Gross, it was stated in answer to the question therein contained that it was a joint return of husband and wife. The name of Rose Gross subsequently was placed formally upon the assessment list.

The said Rose Gross contends that she never had any taxable income, and that the assessment list of the office of the collector of internal revenue of the First New York district, at Brooklyn, makes no mention of her in any manner whatsoever; that no notice of assessment was ever sent to her, nor was any demand for payment made at any time; and that at no time subsequent to the assessment of taxes against Albert R. Gross has said Albert R. Gross turned over to her any property or assets of any nature whatsoever.

Rose Gross has filed a claim with and instituted legal action against the Fidelity & Deposit Company of Maryland, in the Supreme Court of the state of New York, to recover on a policy of insurance for jewelry belonging to said Rose Gross, which had been stolen. Negotiations have been had, and the said company has made a definite offer of settlement pending the outcome of this motion. An assignment of the settlement to the extent of $1,000 has been made to the plaintiff. The said Rose Gross contends that said assignment was made in good faith and for an actual indebtedness.

From the contentions of the parties it is clear that there are issues as to the origin of the tax, nature of the tax, and the validity of the assessment list, and no clear legal right to a mandamus is shown, even if one could be granted, as asked for herein, and no mandamus, either in the alternative or peremptory form, will be granted, unless a petitioner shows a clear legal right to the same. Cullen v. N. Y. Telephone Co., 106 App. Div. 250, 94 N. Y. S. 290; Bayard v. United States ex rel. White, 127 U. S. 246, 250, 8 S. Ct. 1223, 32 L. Ed. 116; Ex parte Hughes, 114 U. S. 147, 5 S. Ct. 823, 29 L. Ed. 134.

This proceeding is instituted for the purpose of securing a writ of mandamus, and although there is a prayer for such other, further, or different relief as to the court may seem just and proper, nevertheless the petitioner must establish the right to mandamus as such or else fail altogether in this proceeding. People v. Cady, 2 Hun (N. Y.)...