Merlin v. Sanders, 4724.
| Decision Date | 17 August 1956 |
| Docket Number | No. 4724.,4724. |
| Citation | 144 F. Supp. 541 |
| Parties | Libbie MERLIN, Plaintiff, v. P. K. SANDERS, Acting District Director of Internal Revenue, Defendant. |
| Court | U.S. District Court — Northern District of Georgia |
L. E. McNatt, Atlanta, Ga., for plaintiff.
James W. Dorsey, U. S. Atty., Atlanta, Ga., for defendant.
Former opinion filed is vacated, upon motion to reconsider.
Plaintiff brought action against the District Director of Internal Revenue seeking injunction against proceedings by the latter to collect a certain assessment against the plaintiff. This Court does not construe the action as being one for declaratory judgment, but rather for injunctive relief.
The complaint in Paragraph Four alleges the "defendant on October 6, 1953 issued his Form No. 21 demanding the sum of $594.49 from defendant because of an assessment alleged to have been made against plaintiff on her 1949 income tax return." This allegation, except in regard to the amount involved, was admitted by defendant and defendant also admitted Paragraph Five of the complaint which alleged that no notice of deficiency required by 26 U.S.C.A. § 272 was issued by defendant.
Essentially plaintiff seeks to enjoin collection of the assessment because of failure of the Director to issue said ninety-day notice.
The United States intervened in the case seeking judgment against the plaintiff based on the following allegations:
In her income tax return for the year 1948 plaintiff claimed that her 1948 taxes had been overpaid by $487.08 and that said sum, plus interest, was refunded to plaintiff on April 16, 1949. That plaintiff, in her tax return for the year 1949, claimed the sum of $1,752.70 as payments on her 1949 estimated tax to be applied toward her 1949 taxes, and that one of the components of this $1,752.70 was a claimed credit of $487.08 representing an overpayment of 1948 taxes, alleging that this $487.08 is the same sum that had previously been refunded to plaintiff on April 16, 1949. That on April 18, 1950 plaintiff had been paid $1,401.33, representing the total overpayment of 1949 taxes claimed on plaintiff's 1949 return, and that this claimed overpayment resulted in part from the claim of credit for overpayment of 1948 taxes in the sum of $487.08 which had been refunded. It is alleged that part of the refund of $1,401.33 was induced by misrepresentation of plaintiff in her 1949 return that she was entitled to a credit of $487.08 as aforesaid.
Intervenor asked judgment against plaintiff in the sum of $487.08 plus interest. This intervention was allowed subject to objection.
In it's answer the defendant contended that notice of deficiency pursuant to 26 U.S.C.A. § 272, was not required, that this action could not be maintained to enjoin collection of same, being prohibited by 26...
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...interpretation of the five-year provision under § 6532(b) that would not be subsumed by §§ 6501(c)(1) and (2). Citing Merlin v. Sanders, 144 F.Supp. 541, 543 (D.Ga.1956), aff'd, 243 F.2d 821 (5th Cir. 1957) for the proposition that § 6532(b) does not require willfulness, the court speculate......
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...F.2d 461; Ventura Consolidated Oil Fields v. Rogan, 9 Cir., 86 F.2d 149; Steiner v. Reisimer, D.C. Wis., 148 F.Supp. 192; Merlin v. Sanders, D.C.Ga., 144 F.Supp. 541, affirmed 5 Cir., 243 F.2d 821; Hastings & Co. v. Smith, D.C.Pa., 122 F.Supp. 3 It is true that the assessment and lien were ......
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Black Prince Distillery, Inc. v. United States
...of a material fact"; however, they have not been so construed. Section 6532(b) does not require willfulness. Merlin v. Sanders, 144 F.Supp. 541, 543 (D.Ga. 1956), aff'd 243 F.2d 821 (5th Cir.1957). Thus, it is conceivable that an action by the IRS to recover an erroneous refund induced by a......
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