Mulcahy v. United States, No. 24052.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation388 F.2d 300
PartiesDaniel J. MULCAHY and Lessie Mulcahy, Appellants, v. UNITED STATES of America et al., Appellees.
Decision Date10 January 1968
Docket NumberNo. 24052.

388 F.2d 300 (1968)

Daniel J. MULCAHY and Lessie Mulcahy, Appellants,
v.
UNITED STATES of America et al., Appellees.

No. 24052.

United States Court of Appeals Fifth Circuit.

January 10, 1968.


388 F.2d 301

Daniel J. Mulcahy, pro se.

Morton L. Susman, U. S. Atty., Houston, Tex., Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Crombie J. D. Garrett, Willy Norwind, Attys., Dept. of Justice, Washington, D. C., for appellees.

Before JONES, WISDOM and THORNBERRY, Circuit Judges.

PER CURIAM:

This suit represents the Mulcahys' second attempt to avoid the "pay now, litigate later" polcy1 of the federal revenue laws. The Internal Revenue Service made a penalty assessment against Daniel Mulcahy in the amount of $4,610.76, representing withholding taxes collected by the Houston Steel Drum Company, which the company failed to pay over to the United States. Mulcahy was an officer and counsel of the delinquent company. The Mulcahys alleged that the making of the assessment without first granting the taxpayer an opportunity for a conference and the subsequent enforcement of the tax liens securing payment of the assessment have resulted in the deprivation of the Mulcahys' property rights without due process of law. The Mulcahys sued to enjoin the government from filing the tax liens arising therefrom. The district court dismissed the suit, holding it barred by section 7421(a) of the Internal Revenue Code — prohibiting suits "for the purpose of restraining the assessment of collection of any tax" — and by section 2201 of 28 U.S.C. — providing for declaratory judgments "except with respect to Federal taxes". Mulcahy v. United States, S.D.Tex.1964, 237 F. Supp. 656. The federal tax lien arising from the assessment was then secured by the filing of notice in Harris County, Texas, and execution in part was had by

388 F.2d 302
seizure of a joint bank account of the Mulcahys.2

The Mulcahys have now sued (1) to enjoin collection of the penalty as having been illegally assessed, (2) for return of the money seized by levy, and (3) to quiet title to personal property by cancellation of the federal tax lien notice. The opinion below is reported at 251 F.Supp. 785.

(1) As to the suit to enjoin collection of the penalty, involving identical jurisdictional issues to those considered in the prior suit by the Mulcahys, the district court below held the prior judgment res judicata. These issues are again raised on appeal, but as we agree with the district court we find...

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12 practice notes
  • Yannicelli v. Nash, Civ. A. No. 1253-71.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 24, 1973
    ...of filing an administrative refund claim prior to a judicial suit for the return of money seized by levy. Mulcahy v. United States, 388 F.2d 300 (5 Cir. Another prerequisite of § 1346 is that full payment of an income tax assessment is a jurisdictional condition precedent to maintenance of ......
  • Williams v. United States, Civ. No. LV-2025.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • November 15, 1973
    ...case. See United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025 (1931); Mulcahy v. United States, 388 F.2d 300 (5th Cir. 1968); Dixie Margarine Co. v. Schaefer, 139 F. 2d 221 (6th Cir. 1943), cert denied 321 U.S. 791, 64 S.Ct. 789, 88 L.Ed. 1081 (1943); McM......
  • Lonsdale v. U.S., No. 90-2113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 20, 1990
    ...v. United States, 819 F.2d 144 (6th Cir.1987); Laino v. United States, 633 F.2d 626, 633 n. 8 (2d Cir.1980); Mulcahy v. United States, 388 F.2d 300 (5th Cir.1968); Falik v. United States, 343 F.2d 38 (2d Cir.1965); Pipola v. Chicco, 274 F.2d 909, 913-914 (2d Cir.1960); Quinn v. Hook, 231 F.......
  • Lychuk v. Comm'r of Internal Revenue, No. 11794–99
    • United States
    • United States Tax Court
    • May 31, 2001
    ...involved, Deputy v. du Pont, 308 U.S. at 495, it must be realized and exhausted in the year of payment, see Stevens v. Commissioner, 388 F.2d at 300. Although an employer's payment of salaries and benefits similar to the ones at issue will usually generate for the employer benefits that wil......
  • Request a trial to view additional results
12 cases
  • Yannicelli v. Nash, Civ. A. No. 1253-71.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • January 24, 1973
    ...of filing an administrative refund claim prior to a judicial suit for the return of money seized by levy. Mulcahy v. United States, 388 F.2d 300 (5 Cir. Another prerequisite of § 1346 is that full payment of an income tax assessment is a jurisdictional condition precedent to maintenance of ......
  • Williams v. United States, Civ. No. LV-2025.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • November 15, 1973
    ...instant case. See United States v. Felt & Tarrant Mfg. Co., 283 U.S. 269, 51 S.Ct. 376, 75 L.Ed. 1025 (1931); Mulcahy v. United States, 388 F.2d 300 (5th Cir. 1968); Dixie Margarine Co. v. Schaefer, 139 F. 2d 221 (6th Cir. 1943), cert denied 321 U.S. 791, 64 S.Ct. 789, 88 L.Ed. 1081 (1943);......
  • Lonsdale v. U.S., No. 90-2113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 20, 1990
    ...v. United States, 819 F.2d 144 (6th Cir.1987); Laino v. United States, 633 F.2d 626, 633 n. 8 (2d Cir.1980); Mulcahy v. United States, 388 F.2d 300 (5th Cir.1968); Falik v. United States, 343 F.2d 38 (2d Cir.1965); Pipola v. Chicco, 274 F.2d 909, 913-914 (2d Cir.1960); Quinn v. Hook, 231 F.......
  • Lychuk v. Comm'r of Internal Revenue, No. 11794–99
    • United States
    • United States Tax Court
    • May 31, 2001
    ...involved, Deputy v. du Pont, 308 U.S. at 495, it must be realized and exhausted in the year of payment, see Stevens v. Commissioner, 388 F.2d at 300. Although an employer's payment of salaries and benefits similar to the ones at issue will usually generate for the employer benefits that wil......
  • Request a trial to view additional results

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