McCann v. United States, 37744.

• Citation: 248 F. Supp. 585
• Decision Date: 29 December 1965
• Docket Number: No. 37744.,37744.
• Parties: Helen V. McCANN v. UNITED STATES of America and Kenneth O. Hook, District Director of Internal Revenue.
• Court: U.S. District Court — Eastern District of Pennsylvania

248 F. Supp. 585

Helen V. McCANN v. UNITED STATES of America and Kenneth O. Hook, District Director of Internal Revenue.

No. 37744.

United States District Court E. D. Pennsylvania.

December 29, 1965.

Leonard B. Rosenthal, Robert M. Taylor, Philadelphia, Pa., for plaintiff.

Drew J. T. O'Keefe, U. S. Atty., Sidney Salkin, Asst. U. S. Atty., Philadelphia, Pa., John G. Penn, Dept. of Justice, Washington, D. C., for defendants.

JOSEPH S. LORD, III, District Judge.

The plaintiff, Helen McCann, has filed a complaint praying that certain tax assessments and liens levied by the defendants against her property be declared void, be cancelled, set aside and stricken, and further praying that the defendants be enjoined from seizing and levying upon her personal property, foreclosing upon her real property or levying upon her wages. Jurisdiction is based upon section 1340 of Title 28 U.S.C. Plaintiff alleges that her action is permissible under Title 28 U.S.C. § 2410.¹ The defendants have moved to dismiss.

Plaintiff alleges in her complaint that she is married to John McCann and that she is the sole owner of premises located at 46 W. Southampton Street, Philadelphia, Pennsylvania. She states that her husband was engaged in the roofing business and that he became delinquent in the payment of federal withholding taxes, Federal Unemployment Tax Act taxes, and Federal Insurance Contribution Act taxes in 1957. The plaintiff contends that sometime during the year 1957, two revenue officers from the Internal Revenue Service demanded payment of the outstanding taxes due from her husband and that they informed her husband that if the taxes were not paid he could no longer remain in business. It is alleged, however, that the two revenue officers did advise plaintiff and her husband that if the plaintiff signed as the owner and operator of the business, the business could continue. Based upon that advice, the plaintiff agreed to sign as owner. Thereafter, she applied for an identification number with both the federal government and the Pennsylvania Unemployment Compensation Fund. Her husband has continued in business up to the present time. The plaintiff filed employer's tax returns as the operator of the roofing business from 1957 until about July, 1962, at which time she relinquished her employer's identification number. At that time, her husband applied for an employer's identification number in his name alone. By 1960, her husband was again delinquent in the payment of his taxes. Assessments for the outstanding taxes were made against the plaintiff and her husband. Notices of federal tax lien were filed against the plaintiff and her husband in the office of the prothonotary of the courts for the County of Philadelphia on various dates beginning on or about October 19, 1960. The plaintiff alleges that she advised the District Director that she was not the proper party for the assessment of the taxes and that she was not in the roofing business during the years in question. She requested, therefore, that the assessment be declared void and that the public liens be withdrawn. The District Director has failed to comply with her request.

The basis for the government's motion to dismiss is that section 2410 does not apply to actions of this sort and that the United States has not thereby or otherwise waived its sovereign immunity. It is now well settled that section 2410 does not provide a vehicle for a taxpayer to question the validity of a tax assessment or lien. Quinn v. Hook, 231 F.Supp. 718 (E.D.Pa.1964), aff'd 341 F.2d 920 (C.A.3, 1965); Falik v. United States, 343 F.2d 38 (C.A.2, 1965); Broadwell v. United States, 234 F.Supp. 17 (E.D.N.C.1964), aff'd 343 F.2d 470 (C.A.4, 1965); Floyd v. United States, 241 F.Supp. 996, 997 (W.D.S.C.1965).

Recognizing the authority and impact of these cases, plaintiff argues that she is not, in fact, a "taxpayer" but that her husband is the taxpayer and hence that she may invoke the provisions of section 2410. This approach, however, is merely an indirect method of questioning the validity of a tax lien levied against what is admittedly the property of the plaintiff, and though indirect, it is nonetheless an attack on the validity of the assessment by one against whom a lien has been levied. The government asserts that plaintiff is, in fact, the taxpayer, and not without reason. The plaintiff admittedly applied for an identification number with both the federal government and the Pennsylvania Unemployment Compensation Fund. She admittedly filed employer's tax returns as the operator of the roofing business from 1957 until about July 1962. The liens were for 1960 taxes, obviously embracing the period during which the plaintiff held herself out as the operator of the roofing business. Thus, by stating that she is not the taxpayer, the plaintiff merely argues the conclusion that she wishes to have reached in this law suit, — that the lien is not valid.

As we have said, where the government asserts that a given individual is the taxpayer and levies against the property of that person, section 2410 cannot be construed as waiving the government's immunity in a suit to question the validity of that lien. Plaintiff's case is significantly similar to Floyd v. United States, 241 F.Supp. 996 (W.D.S.C.1965). There, the plaintiff alleged that the government erroneously claimed that he and his wife owned and operated a certain supper club as partners and that as a partner the plaintiff was liable for the payment of certain cabaret taxes, penalties and interest. He further alleged that certain real property owned by the plaintiff individually had been seized by the defendant for the purpose of selling the property for the payment of the taxes due. Plaintiff alleged that his wife had always been the sole owner of the supper club, that he had never...