Mitchell v. Riddell

• Decision Date: 01 April 1969
• Docket Number: No. 22406.,22406.
• Citation: 402 F.2d 842
• Parties: Clinton H. MITCHELL and Clinton Mitchell Foundation, Appellants, v. R. A. RIDDELL, District Director of Internal Revenue, and United States of America, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

402 F.2d 842 (1968)

Clinton H. MITCHELL and Clinton Mitchell Foundation, Appellants, v. R. A. RIDDELL, District Director of Internal Revenue, and United States of America, Appellees.

No. 22406.

United States Court of Appeals Ninth Circuit.

October 24, 1968.

Rehearing Denied November 19, 1968.

Certiorari Denied April 1, 1969.

Clinton H. Mitchell (argued), Palm Springs, Cal., for appellants.

Gilbert E. Andrews, Jr. (argued), Asst. U. S. Atty., Mitchell Rogovin, Asst. Atty. Gen., Washington, D. C., Wm. Matthew Byrne, Jr., U. S. Atty., Jerry R. Stern, Asst. U. S. Atty., Los Angeles, Cal., Robert N. Anderson, Ann E. Belanger, Attys., Washington, D. C., for appellees.

Before JERTBERG and DUNIWAY, Circuit Judges, and TAYLOR,^* District Judge.

Certiorari Denied April 1, 1969. See 89 S.Ct. 1223.

JERTBERG, Circuit Judge:

Appellants, Clinton H. Mitchell and Clinton Mitchell Foundation (plaintiffs below), appeal from two orders of the District Court, one denying appellants' motion for a summary judgment, and the other granting the motion of appellees for dismissal of the action for lack of jurisdiction over the subject matter of the action.

On April 14, 1967, appellant, Clinton H. Mitchell, in pro per, filed a complaint in the district court, solely in his own name, against R. A. Riddell, a retired District Director of the Internal Revenue Service at Los Angeles. On August 25, 1967, on stipulation of counsel and approval of the district court, the appellant, Clinton Mitchell Foundation, was joined as a party-plaintiff on the ground that the Foundation was the real party in interest.

We have been unable to find in the record any order of the district court joining the United States of America as a party-defendant. In view of the provisions of 26 U.S.C. § 7422(f) (2),¹ we shall treat the United States of America as a party-defendant in this action, and as an appellee on this appeal. The United States of America makes no contention otherwise.

The complaint alleges that appellant, Clinton H. Mitchell, on January 1, 1963, established an inter vivos trust, retaining management in himself. The name or designation of the trust is not mentioned in the complaint.

The complaint further alleges that the trust instrument requires that the trust's entire net income, after specified life interests payable to Clinton H. Mitchell, be paid exclusively to, or for the use of, charitable purposes; that no tax deductions were claimed by Mitchell on his contributions to the trust; that in four years of operation, Mitchell has reported to the Internal Revenue Service over $17,000.00 given to charitable purposes and has claimed, under the reserved life interests, a total of only $1945.80; and that full reports of all operations of the trust have been duly filed.

The complaint purports to state two causes of action. In the first cause of action it is alleged that upon completion of the first year of operation of the trust, the Internal Revenue Service denied an application of Mitchell to have the trust declared a tax exempt organization, and requested that the trust report its income as a taxable organization; that in the intervening years the Internal Revenue Service persisted in its refusal to recognize the trust as a tax exempt organization and persisted in its demand that the trust report its income as a taxable organization; that because Mitchell is over seventy-two years, and time is "running out," and in order to clarify tax status of the trust, Mitchell

"did remit, on May 3, 1966, the sum of Ten Dollars to defendant, and included the statement that no tax was due for any time of operation, under the law, and calling for its refund, with reasons stated"; and

no reply to said demand has been made.

This cause of action prays the court to find "that defendant does owe him the refund of said ten dollars, as having been unlawfully demanded and accepted from plaintiff."

In the second cause of action plaintiff alleges that all income of the trust has been distributed as:

"— in the case of an estate or a trust — paid to or permanently set aside for — exclusively charitable purposes — pursuant to terms of the governing instrument — any amount, without limitation — shall be allowed as a deduction —.

(Sec. 642, Internal Revenue Code.)"

The prayer under the second cause of action is that the trust operations described in the complaint

"be found within the tax exempt description of IRC Sec. 642, * * *, and/or any other applicable laws; and that defendant be found indebted to plaintiff in amount of said ten dollars, plus interest, for over-payment of income tac (sic) unlawfully demanded and accepted."

The record discloses that on September 29, 1967, the parties entered into a stipulation which, after reciting that the plaintiffs had brought the instant action for a refund of Federal taxes in the amount of ten and no/100 dollars ($10.00), "which amount is not, and never has been, the subject matter of an assessment against the plaintiffs, either individually or jointly," and that "the defendant has agreed to refund to plaintiff Clinton Mitchell the said sum of ten and no/100 dollars ($10.00), receipt of which amount is hereby acknowledged by said plaintiff," provided:

"1. Plaintiff Clinton Mitchell has been refunded the amount of ten and no/100 dollars ($10.00) referred to above;

"2. Plaintiffs and defendant agree that the acceptance of said amount by Clinton H. Mitchell shall not be construed to preclude a later assertion that the Clinton Mitchell Foundation is a tax-exempt organization;

"3. Plaintiffs and defendant agree that payment of said amount by defendant shall not be deemed to constitute an admission that the Clinton Mitchell Foundation is a tax-exempt organization."

By later written stipulation, Mitchell waived claim to the payment of any interest on said sum of $10.00.

Prior to the return of said sum of $10.00, plaintiffs filed a "Motion for Summary Judgment and Mandate," in which they prayed that the "charitable foundation be held tax-exempt," and "that such condition continue to apply during such time as they remain in compliance with pertinent and applicable codes and laws."

Prior to the filing of plaintiffs' motion, the appellees had moved for dismissal of the action upon the ground, inter alia, that the court lacks jurisdiction of the subject matter of the action.

The district court denied plaintiffs' motion for summary judgment, stating among other things:

"First of all, the record is clear that plaintiffs, since the filing of this action, have received from the United States of America the sum of Ten Dollars ($10.00) and that plaintiffs have waived any statutory interest thereon. Therefore the Court need only determine whether or not this Court has jurisdiction of the remaining subject matter of the action.

Aside from the claim of plaintiffs for Ten Dollars ($10.00), which claim has been satisfied by the voluntary payment by United States of America to plaintiffs, plaintiffs seek declaratory relief decreeing that plaintiff Foundation is a tax-exempt Foundation. It appears from the stipulation of the parties on file herein, and from admissions of the individual plaintiff in open court, and from other documents and records in the case, that no assessment for income taxes has been levied against plaintiff Foundation.

"Inasmuch as plaintiffs are here seeking to secure declaratory relief with respect to taxes, something not permitted by Section 2201 of Title 28, United States Code, their motion for summary judgment must be denied."

In the order of the district court granting appellees' motion to dismiss the action, it is stated, among other things, that:

"It further appears from the record of the proceedings of the hearing on the motion to dismiss herein * * * that the sole relief which they plaintiffs seek now that payment of the Ten Dollars has been accomplished is the decree establishing that the plaintiff Foundation is a tax-exempt organization. It further affirmatively appears that plaintiffs do not intend to amend their complaint to allege that there has been any tax assessment by the United States against plaintiff Foundation, and they do not intend to amend their complaint to allege that there has been any payment by them or either of them, complete or partial, of any tax assessment against plaintiff Foundation by the United States. * * *

"It is clear that this action should be dismissed for lack of jurisdiction in the Court over the subject matter of the action where, as here, there is no longer pending before the Court the right of plaintiffs to recover the Ten Dollars ($10.00) heretofore voluntarily paid by plaintiffs to the Internal Revenue Service plus interest thereon. Plaintiffs have received such Ten Dollar sum and have waived interest thereon.

"Title 28, United States Code, Section 2201, makes clear that there is no jurisdiction in this Court to declare the rights and other legal relations of plaintiffs or either of them with respect to federal taxes. * * *"

Appellants'...