Sciannameo v. Dath
Decision Date | 09 April 1974 |
Docket Number | No. 73 C 1842.,73 C 1842. |
Citation | 373 F. Supp. 1120 |
Parties | Joseph SCIANNAMEO, Plaintiff, v. Robert J. DATH, District Director, Internal Revenue Service, Defendant. |
Court | U.S. District Court — Eastern District of New York |
Thomas G. Moringiello, for plaintiff.
Edward John Boyd, V, Acting U. S. Atty., Eastern District of New York, for defendant by Carl I. Stewart, Asst. U. S. Atty.
This is an action brought, pursuant to the Fifth Amendment to the Constitution of the United States, declaring that the acts of the defendant be declared unconstitutional, and also that the lien upon his property be removed. The plaintiff further moves for an injunction restraining the District Director from enforcing the lien.
On December 15, 1972, the plaintiff was arrested and on his person was found gambling slips totaling $2,000.00. Thereafter, he was assessed on November 28, 1973 with the statutory excise tax on wagers for the months of March through December, 1972. The assessment totaled $62,249.15. On the same day the assessment was calculated, the District Director filed a notice of lien in the office of the Clerk of Kings County. The Government calculated the tax due on the basis of a projection since the plaintiff failed to maintain a daily record of wagers, pursuant to 26 U.S.C. § 4403. The projection was ascertained from the policy slips found on the person of the plaintiff when arrested on December 15, 1972, and upon a prior gambling arrest during March, 1972. The tax was computed by multiplying the number of days commencing March 1, 1972 to December 31, 1972 by the amount of policy slips found upon the person of the plaintiff at the time of the arrests.
At the outset, Plaintiff's position that the procedure used to enforce the wagering tax, 26 U.S.C. § 4401, is unconstitutional, is untenable. In Hamilton v. United States, D.C., 309 F.Supp. 468, affirmed, 2 Cir., 429 F.2d 427, certiorari denied 401 U.S. 913, 91 S.Ct. 881, 27 L.Ed.2d 812, the Court held in part commencing at page 471:
It is well settled that there is a strong policy against injunctive relief for the collection of taxes. In Enochs v. Williams Packing Co., 370 U.S. 1, 82 S. Ct. 1125, 8 L.Ed.2d 292, the holding was that such relief is generally denied, pursuant to 26 U.S.C. § 7421. The Court will rarely grant equitable relief. However, such relief may be granted if a plaintiff can show (1) that "under no circumstances could the Government ultimately prevail," and (2) that "equity jurisdiction otherwise exists."
The Court in Enochs, supra, held in part commencing at page 7, 82 S.Ct. at p. 1129:
The plaintiff has heavily relied upon Pizzarello v. United States, 2 Cir., 408 F.2d 579, in which the court granted the injunction. However, in that case it was found that the evidence was illegally seized and under no circumstances could the Government succeed.
In Hamilton v. United States, supra, the Court held in part at pages 472-473 of 309 F.Supp.:
...
To continue reading
Request your trial