Kornberg v. Tomlinson, 63-459-Civ-CF.
Decision Date | 09 January 1964 |
Docket Number | No. 63-459-Civ-CF.,63-459-Civ-CF. |
Citation | 225 F. Supp. 70 |
Parties | David KORNBERG, Jr. and Mary Potoksky Kornberg, his wife, Plaintiffs, v. Laurie W. TOMLINSON, District Director of Internal Revenue for the State of Florida, Defendant. |
Court | U.S. District Court — Southern District of Florida |
Herbert A. Warren, Jr., Carr & Warren, Miami, Fla., for plaintiffs.
Lavinia Redd, Asst. U. S. Atty., Wm. A. Meadows, Jr., U. S. Atty., for defendant.
This cause having come before the Court upon the defendant's Motion to Dismiss, and the Court having heard argument, and otherwise being duly advised, vised, the Court finds and rules as follows:
1. The complaint in this action asks injunctive relief against the defendant tax collector and makes the following pertinent allegations:
The complaint concludes with a prayer for an injunction enjoining the defendant from collecting or attempting to collect any sums from the plaintiffs as claimed deficiencies for the years 1959 and 1960.
2. A general prohibition against suits restraining the assessment or collection of taxes is provided in 26 U.S.C. § 7421 (a). An exception to this prohibition is provided for cases in which a "Ninety Day Letter" is required under 26 U.S.C. § 6213(a) and where such notice is not given before collection procedures are initiated.
3. To sustain the complaint for injunction in this case, plaintiffs must show that they are exempt from the statutory bar against tax injunctions. However, they do not accomplish this merely by alleging that they have failed to receive the "Ninety Day Letter" under 26 U.S.C. § 6213(a), unless they also establish that such procedure was required in their case.
4. The "Ninety Day Letter" requirement does not apply where the taxpayer has been adjudicated a bankrupt. In such cases, 26 U.S.C. § 6871(a) provides:
"Upon the adjudication of bankruptcy * * * any deficiency * * * shall, despite the restrictions imposed by section 6213(a) upon assessments, be immediately assessed * * *."
In the present case, it has been alleged, in effect, that the plaintiffs were adjudicated to be bankrupts. Thus, it is apparent that the immediate-assessment procedure under Section 6871(a) would apply to plaintiffs, and not the "Ninety-Day" procedure of Section 6213(a). It therefore follows that this complaint for injunction is not excepted from the statutory bar of 26 U.S.C. § 7421(a).
5. Plaintiffs contend further, however, that a bankrupt taxpayer loses his right to a ...
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King v. Comm'r of Internal Revenue , Docket No. 2093-67.
...339 (C.A. 5, 1964); Cohen v. Gross, 316 F.2d 521 (C.A. 3, 1963); John V. Prather, supra. The respondent argues that Kornberg v. Tomlinson, 225 F.Supp. 70 (S.D. Fla. 1964), affirmed per curiam 341 F.2d 300 (C.A. 5, 1965), supports his position. In that case, the court held that the taxpayer ......
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Abel v. Campbell
...property, any portion of the claim that has not been satisfied out of the bankrupt estate." 316 F.2d at 523. Kornberg v. Tomlinson, S.D.Fla.1964, 225 F.Supp. 70, follows Cohen v. Gross. Kornberg rests on Section 6871 alone; although the Government's claim against a bankrupt was not even pre......
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Orenduff v. Comm'r of Internal Revenue, Docket No
...deficiencies handled under the ‘immediate’ assessment procedures provided for by subsection (a). Respondent cites Kornberg v. Tomlinson, 225 F.Supp. 70 (S.D. Fla. 1964), affirmed per curiam 341 F.2d 300 (C.A. 5, 1965), for the proposition that he need not make an assessment or file a claim ......
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Kornberg v. Tomlinson
...dismissing a complaint seeking an injunction against the District Director of Internal Revenue. The opinion of the trial court appears at 225 F.Supp. 70. We have carefully read the brief but comprehensive opinion of the trial court. We agree and adopt all of the opinion except the paragraph......