Moyer v. Mathas
Decision Date | 06 April 1972 |
Docket Number | 71-2588.,No. 71-2587,71-2587 |
Citation | 458 F.2d 431 |
Parties | Martin H. MOYER, Plaintiff-Appellant, v. Jess MATHAS, Clerk of the Circuit Court of Volusia County, Florida, Defendants-Appellees. Martin H. MOYER, Plaintiff-Appellant, v. A. J. O'DONNELL, Jr., District Director of Internal Revenue for the District of Florida and United States of America, Defendants-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
William R. Frazier, Jacksonville, Fla., for plaintiff-appellant.
John R. Godbee, Jr., Deland, Fla., Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Atty., Tax Div., Dept. of Justice, Washington, D. C., John D. Roberts, Asst. U. S. Atty., Jacksonville, Fla., Gilbert E. Andrews, Richard Farber, Attys., Fred B. Ugast, Acting Asst. Atty. Gen., Crombie J. D. Garrett, Atty., Tax Div., Dept. of Justice, Washington, D. C., for defendants-appellees; John L. Briggs, U. S. Atty., of counsel.
Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.
In October of 1949 the United States made assessments of federal income tax, penalties, and interest against Maggie P. Tookes, and filed notices of federal tax lien with the Clerk of the Circuit Court of Volusia County, Florida. The taxpayer, Maggie Tookes, paid only a portion of the assessments, and in October of 1955, almost six years after the assessments were made, the government filed suit against the taxpayer in the United States District Court for the Southern District of New York to reduce the assessments to judgment. While this litigation was pending, the taxpayer in 1958 conveyed various parcels of real estate, owned by her in 1949 and located in Volusia County, Florida, to plaintiff, Martin H. Moyer. The government finally secured a default judgment against the taxpayer in 1962 in the amount of $106,000, which represented the assessed tax liability and interest to the date of judgment. During the several years in which Moyer owned the Volusia County realty obtained from Maggie Tookes, he became delinquent in the payment of the local property taxes. This delinquency was eventually rectified in 1969, when the Clerk of the Circuit Court of Volusia County, Florida, conducted two tax deed sales in connection with Moyer's real property. On July 7, 1969, the Volusia County Clerk, Jess Mathas, sold a portion of the land that the plaintiff had acquired from Maggie Tookes. The base bid for this acreage was fixed at approximately $4,600, and the sale produced a surplus in the amount of $16,400. The day after this sale the federal government caused notices of levy to be issued to Mathas, and the clerk thereupon paid over the surplusage to the government. Then, on December 1, 1969, Jess Mathas held another tax deed sale involving additional portions of land which the plaintiff had procured from Maggie Tookes. The base bid for this realty amounted to some $6,900, and the sale produced an overage of almost $29,000. Again the government sought these monies by serving a notice of levy on the Volusia County Clerk. Several days subsequent to this second tax deed sale, and while Jess Mathas still possessed the $29,000 surplus, Moyer instituted in a federal district court a suit against Mathas and the United States, seeking an injunction requiring the defendant Mathas to pay over the surplus funds to Moyer. Several months later the plaintiff instituted another suit against the United States, seeking recovery of the surplus which the government had received from the first tax deed sale. Pursuant to 26 U.S.C.A. § 7403,1 the government counterclaimed in both actions, seeking foreclosure of its 1949 tax lien. The district court consolidated the two cases, and on the basis of the above stipulated facts the trial court held that the government was entitled to the surplus funds arising out of the tax deed sales of the Volusia County realty, D.C., 332 F.Supp. 357. On appeal, the plaintiff asserts that the district court erred in two respects. First, Moyer contends that the trial judge erroneously concluded that the 1949 tax lien had not expired, and second, the plaintiff asserts that the lower court incorrectly held that Moyer could not collaterally attack the validity of the 1949 tax assessments made against Maggie Tookes. We affirm the judgment of the district court.
The Internal Revenue Code of 1954 provides that if a taxpayer neglects or refuses to pay a tax that has been demanded of him, the amount of the tax becomes a lien in favor of the government upon all of the taxpayer's property. 26 U.S.C.A. § 6321. In the case of income taxes, the lien created by section 6321 arises at the time the tax assessment is made and continues "until the liability for the amount so assessed (or a judgment against the taxpayer arising out of such liability) is satisfied or becomes unenforceable by reason of lapse of time." 26 U.S.C.A. § 6322. The plaintiff in the instant case contends that the government's 1949 tax lien expired because Maggie Tookes' tax liability became "unenforceable by reason of lapse of time." The only statutory analogue we have found which gives substance to the phrase "lapse of time" is embodied in section 6502(a) of the Code. That section provides:
26 U.S.C.A. § 6502(a). In the instant case there is no question that the assessments against Maggie Tookes were timely made under 26 U.S.C.A. § 6501. However, the plaintiff asserts that section 6502(a) barred the government's foreclosure suits in this case because such suits were not brought within six years after the assessment of the tax. To pursue his argument it is necessary that the plaintiff assert that the phrase "proceeding in court" in section 6502(a) refers only to a foreclosure proceeding. However, this court has held that the limitation provisions of section 6502(a) are satisfied if the government institutes, within six years after the assessment of the tax, a suit for an in personam judgment against the taxpayer. See Hector v. United States, 5 Cir. 1958, 255 F.2d 84. Of course, since our decision in Hector, the statutory mold of the tax lien provisions has been recast by congressional action. Each of the adversaries in this case argue with fervor and considerable passion that the Federal Tax Lien Act of 1966, Pub.L. No. 89719, 80 Stat. 1125, gives him support and solace. We have read the Act and scrutinized its legislative history. And having followed every stitch in its Mother Hubbard hem, we unraveled no thread that binds either...
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