Long v. Rasmussen

Citation281 F. 236
Decision Date29 May 1922
Docket Number97.
PartiesLONG v. RASMUSSEN, Collector of Internal Revenue, et al.
CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)

George F. Shelton, J. Bruce Kremer, L. P. Sanders, and Alf C Kremer, all of Butte, Mont., for plaintiff.

John L Slattery, U.S. Dist. Atty., of Helena, Mont., for defendants.

BOURQUIN District Judge.

Plaintiff alleges she owns and is entitled to possession of certain property distrained by defendant collector of internal revenue, to make certain 'distilled spirits taxes and penalties' assessed against one Wise, and she seeks to enjoin threatened sale and to recover possession.

The evidence in her behalf is that the property is the furnishings of a resort or hotel conducted by her, excepting an automatic organ is owned by her, and was in her possession when distrained by defendant. This is proof of plaintiff's ownership and right of possession, and imposes upon defendant the burden to justify the seizure by a preponderance of the evidence that Wise owns the property.

To that end he presents ambiguous circumstances only, viz. that Wise or his wife has some interest in the hotel building; that during plaintiff's tenancy of the building Wise once gave his address as at that hotel, had installed the automatic organ, and made payments upon it, and in 1917-1921 presented to the assessor of local taxes lists of property for taxation to Wise, including the hotel building and furnishings, which taxes were paid by him. These lists were admitted, subject to the anomalous objection that they be 'taken only for what they are worth.'

Being res inter alios acta, the better rule is that generally they are not competent evidence in actions involving title and ownership of property, and to which the list maker is not a party. In any event, the burden has not been sustained by defendant, and the finding is that at time of seizure and now plaintiff was and is owner and entitled to possession of the property. To dispose briefly of various suggestions, rather than contentions, the seizure threatening disruption of plaintiff's going business, infliction of uncertain damages, and irreparable injury, equity has jurisdiction even as in like circumstances of wrongful attachment or execution, for that law affords no adequate remedy. See Watson v. Sutherland, 5 Wall. 79, 18 L.Ed. 580.

The suit is not against the United States, but is against an individual who, as an officer of the United States in discharge of a discretionless ministerial duty, upon plaintiff's property is committing without authority contrary to his duty, and in violation of the due process of the Constitution and the revenue laws of the United States, positive acts of trespass for which he is personally liable. See Philadelphia Co. v. Stimson, 223 U.S. 620, 32 Sup.Ct. 340, 56 L.Ed. 570; Belknap v. Schild, 161 U.S. 18, 16 Sup.Ct. 443, 40 L.Ed. 599; U.S. v. Lee, 106 U.S. 219, 1 Sup.Ct. 240, 27 L.Ed. 171; Magruder v. Association, 219 F. 78, 135 C.C.A. 524. Congress has no power grant, and has not assumed to grant, authority to the defendant collector to distrain the property of one person to make the taxes of another. Perhaps it could, were the property in possession of the taxpayer, which is not this case. See Sears v. Cottrell, 5 Mich. 253.

Section 3224, R.S. (Comp. St. Sec. 5947), that 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court,' applies to taxpayers only, and who, thus deprived of one remedy, are given another by section 3226, R.S. (Comp. St. Sec. 5949), viz. an action to recover after taxes paid and repayment denied by the Commissioner. Nor are they limited to this statutory denied by the Commissioner. Nor are they limited to this statutory remedy, but, after taxes paid, they may have trespass or other action against the collector. See Erskine v. Hohnbach, 14 Wall. 616, 20 L.Ed. 745; De Lima v. Bidwell, 182 U.S. 179, 21 Sup.Ct. 743, 45 L.Ed. 1041; Pacific Co. v. U.S., 187 U.S. 453, 23 Sup.Ct. 154, 47 L.Ed. 253.

The revenue laws are a code or system in regulation of tax assessment and collection. They relate to taxpayers, and not to nontaxpayers. The latter are without their scope. No procedure is prescribed for nontaxpayers, and no attempt is made to annul any of their rights and...

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  • Logan Planing Mill Co. v. Fidelity and Casualty Co. of NY
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 20 December 1962
    ...was granted and the motion to dismiss was denied. Section 7421 was formerly Section 3224, and relates to taxpayers only. In Long v. Rasmussen, D.C.Mont., 281 F. 236, the Court stated, in speaking of Section "The Revenue Laws are a code or system in regulation of tax assessment and collectio......
  • Gordon v. United States
    • United States
    • Court of Federal Claims
    • 6 May 1981
    ...1948); Tomlinson v. Smith, 128 F.2d 808, 811 (7th Cir. 1942); Rothensies v. Ullman, 110 F.2d 590, 592 (3d Cir. 1940); Long v. Rasmussen, 281 F. 236, 238 (D.C.Mont.1922). 11 ABA Final Report, Legislative History, 12 Id. See also Phillips v. United States, 346 F.2d 999, 1000 (2d Cir. 1965); F......
  • U.S. v. Weintraub, 77-3273
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 19 December 1979
    ...v. Latham, 306 F.2d 45 (2d Cir. 1962); Seattle Ass'n of Credit Men v. United States, 240 F.2d 906 (9th Cir. 1957); Long v. Rasmussen, 281 F. 236, 238 (D.C.Mont.1922). See Glenn v. American Surety Co., 160 F.2d 977, 981 (6th Cir. 1947). The ultimate issue which would have been decided in any......
  • Bartell v. Riddell
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • 5 February 1962
    ...and not to nontaxpayers.'" (Stuart v. Chinese Chamber of Commerce of Phoenix, supra, 168 F.2d, at page 712, quoting Long v. Rasmussen, 281 F. 236, 238 (D.C.Mont.1922).) Here, as in the Stuart case, the plaintiff is not a taxpayer protesting or attempting to reclaim an illegally assessed or ......
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