MacKenzie v. United States, 9299.
| Citation | 109 F.2d 540 |
| Decision Date | 05 February 1940 |
| Docket Number | No. 9299.,9299. |
| Parties | MacKENZIE v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Clyde C. Sherwood, of San Francisco, Cal., for appellant.
Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Warren F. Wattles, and Howard D. Pack, Sp. Assts. to Atty. Gen., and Frank J. Hennessy, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
Before WILBUR, HANEY, and STEPHENS, Circuit Judges.
Action instituted by the United States of America to enforce an asserted lien for income taxes on a bank deposit of the Oakland Paving Company in the Central National Bank of Oakland. Appellant is the assignee of one Thornsberry, a creditor of the Paving Company, and claims a prior lien with respect to said bank deposit.
On April 24, 1930, said Thornsberry brought suit against the Paving Company to recover upon a promissory note for $4,250.
assessed against the Paving Company income taxes and interest for the years 1921, 1922 and 1923 in the total amount of $11,773.27. This assessment was entered upon an assessment list which was received by the Collector of Internal Revenue in San Francisco, California on June 26, 1931. The Collector gave notice to the Paving Company, and demand for payment on June 29, 1931, but no part of said taxes and interest has been paid. The statutory period within which collection of these taxes can be made by the United States has been extended to December 31, 1941, by waivers duly executed by the Paving Company.
On September 4, 1931, a writ of attachment was issued in the Thornsberry action, and levied by the Sheriff upon the bank account of the Paving Company in the Bank. At that time the Paving Company had on deposit with the Bank the sum of $1,681.54.
On April 2, 1932, the Collector of Internal Revenue at San Francisco filed a notice of federal tax lien against the Paving Company in the sum of $11,773.27 with the Recorder of Alameda County, California, and with the Clerk of the United States District Court at San Francisco, California.
On May 28, 1932, Thornsberry recovered judgment against the Paving Company for $1,700 plus interest, and on the same day execution was issued and levied upon the Bank but was returned unsatisfied. Thornsberry subsequently assigned this judgment to one Hillerman, who in turn assigned it to appellant.
On June 25, 1937, the United States served notice of its tax lien on the Bank and made demand for payment. The Bank at all times refused to pay any monies to either the United States or MacKenzie or his predecessors in interest until the rights of all parties were finally determined. The Bank filed, in this proceeding, a bill of interpleader wherein it agreed to hold all deposits of the Paving Company until the rights of the respective parties were finally determined.
After hearing the District Court awarded the sum on deposit to the United States, and the present appeal followed.
The sole question for determination is, Does the prior tax lien of the United States prevail over an attachment where notice of the tax lien was filed after attachment was levied but before the attaching litigant obtained judgment?
The federal tax lien is entirely statutory, therefore its scope and effect are to be determined solely by the statute and the decisions interpreting it. The statute creating the lien is Section 3186 of the Revised Statutes, as amended, 26 U.S.C.A. §§ 1560, 1561, 1562, which read during the period involved herein:
The language of Section 3186 above quoted is somewhat ambiguous as to the precise time when the tax lien attaches. The first sentence provides that the tax shall be a lien in favor of the United States if the taxpayer "neglects or refuses to pay the...
To continue reading
Request your trial
-
Peoples Nat. Bank of Washington v. United States, C83-680R.
...a tax lien may attach. Bank of America Nat'l Trust & Savings Ass'n v. Mamakos, 509 F.2d 1217 (9th Cir. 1975); MacKenzie v. United States, 109 F.2d 540, 542 (9th Cir.1940). Peoples had the right to setoff the Redwines' account against payments due on the Redwines' promissory note. See Allied......
-
National Sur. Corp. v. Sharpe, 604
...705; United States v. Barndollar & Crosbie, 10 Cir., 166 F.2d 793; United States v. Sampsell, 9 Cir., 153 F.2d 731; MacKenzie v. United States, 9 Cir., 109 F.2d 540; United States v. Fisher, D.C., 93 F.Supp. 73; United States v. Caldwell, D.C., 74 F.Supp. 114; United States v. Record Pub. C......
-
United States v. McWilliams
...statutory * * * its scope and effect are to be determined solely by the statute and the decisions interpreting it." MacKenzie v. United States, 109 F.2d 540 (9th Cir. 1940). See also In re Halprin, 280 F.2d 407, 409-410 (3d Cir. 1960); Fidelity & Deposit Co. of Maryland v. New York City Hou......
-
US v. McCombs, 87-CV-1475L.
...to gain priority over government claimant's federal tax lien); aff'd, 806 F.2d 251, 254 (3d Cir1986); see also, MacKenzie v. United States, 109 F.2d 540, 542 (9th Cir. 1940) (legislative history of section 6323, as interpreted through a predecessor statute, reveals that burden of proof is o......