Shaw v. United States, Civ. A. No. 5617.

CourtUnited States District Courts. 2nd Circuit. District of Vermont
Writing for the CourtLEDDY
Citation321 F. Supp. 1267
Decision Date15 April 1970
Docket NumberCiv. A. No. 5617.
PartiesGilbert SHAW and Gloria E. Shaw v. UNITED STATES.

321 F. Supp. 1267

Gilbert SHAW and Gloria E. Shaw
v.
UNITED STATES.

Civ. A. No. 5617.

United States District Court, D. Vermont.

April 15, 1970.


321 F. Supp. 1268

Gilbert Shaw and Gloria E. Shaw, pro se.

Norman Cohen, Asst. U. S. Atty., Rutland, Vt., for defendant.

OPINION AND ORDER

LEDDY, Chief Judge.

On June 30, 1969, the plaintiffs, pro se, filed a civil action in this Court against the United States entitled: To Quiet Title to Plaintiff's Property by Removing Treasury Department Tax Lien. In the complaint, the plaintiffs asked to have the cloud on their title to property removed by invalidating a tax lien, and for injunctive relief restraining the Government from collecting the specific tax in issue. It appears from the complaint that for a period of time (1958-1963), the plaintiffs had certain foreign royalty income treated as capital gains. However, it is alleged that in 1964 and thereafter, this same income was classified as ordinary income which thereby denied the plaintiffs the more favorable tax treatment. According to the complaint, there is no basis in law or fact for this subsequent change in treatment by the Internal Revenue Service. On August 21, 1969, the defendant filed a motion to dismiss on the ground that this Court lacks jurisdiction over the person of the defendant because of the doctrine of sovereign immunity and on the alternate theory that the complaint fails to state a claim upon which relief can be granted.

Hearing was held on March 23, 1970, and memoranda submitted.

Starting with the premise that the United States is immune from suit unless it has specifically consented thereto, Dalehite v. United States, 346 U.S. 15, 30, 73 S.Ct. 956, 97 L.Ed. 1427 (1953); United States v. Shaw, 309 U.S. 495, 500-501, 60 S.Ct. 659, 84 L.Ed. 888 (1940), the issue becomes whether in this type of federal tax case there has been a consent. At first blush, 28 U.S. C.A. § 2410(a) (1965) seems to waive immunity and to allow the plaintiffs to pursue their action in this Court. That section reads:

Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in any state court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien.

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4 practice notes
  • Lonsdale v. U.S., No. 90-2113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 20, 1990
    ...aff'd, 343 F.2d 470 (4th Cir.1965), cert. denied, 382 U.S. 825, 86 S.Ct. 57, 15 L.Ed.2d 70 (1965); Shaw v. United States, 321 F.Supp. 1267 (D.Vt.1970), aff'd, 71-1 U.S.T.C., para. 9220 (2d Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1378, 28 L.Ed.2d 650 (1971). The bulk of the complaint......
  • Stapleton v. $2,438,110, No. 19287.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 25, 1972
    ...an approach narrowly construing this provision. See e. g., Falik v. United States, 343 F.2d 38 (2d Cir. 1965), Shaw v. United States, 321 F.Supp. 1267, 1269 (D.Vt.1970), Johnson Service Co. v. H. S. Kaiser Co., 324 F.Supp. 745 (N.D.Ill. 4 One of the difficulties with this case is that both ......
  • Gush v. Bunker, Civ. A. No. C-72-55.
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • February 28, 1972
    ...I. Sovereign Immunity "The United States is immune from suit unless it has specifically consented thereto. . . ." Shaw v. United States, 321 F.Supp. 1267, 1268 (D.Vt., 1970); see also, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L. Ed. 1427 (1953); United States v. Shaw, 309 U.......
  • Hunt v. Board of Education of County of Kanawha, Civ. A. No. 70-225.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • January 18, 1971
    ...discussion or instruction. It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred 321 F. Supp. 1267 position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definite......
4 cases
  • Lonsdale v. U.S., No. 90-2113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 20, 1990
    ...aff'd, 343 F.2d 470 (4th Cir.1965), cert. denied, 382 U.S. 825, 86 S.Ct. 57, 15 L.Ed.2d 70 (1965); Shaw v. United States, 321 F.Supp. 1267 (D.Vt.1970), aff'd, 71-1 U.S.T.C., para. 9220 (2d Cir.1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1378, 28 L.Ed.2d 650 (1971). The bulk of the complaint......
  • Stapleton v. $2,438,110, No. 19287.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • January 25, 1972
    ...an approach narrowly construing this provision. See e. g., Falik v. United States, 343 F.2d 38 (2d Cir. 1965), Shaw v. United States, 321 F.Supp. 1267, 1269 (D.Vt.1970), Johnson Service Co. v. H. S. Kaiser Co., 324 F.Supp. 745 (N.D.Ill. 4 One of the difficulties with this case is that both ......
  • Gush v. Bunker, Civ. A. No. C-72-55.
    • United States
    • United States District Courts. 6th Circuit. Western District of Tennessee
    • February 28, 1972
    ...I. Sovereign Immunity "The United States is immune from suit unless it has specifically consented thereto. . . ." Shaw v. United States, 321 F.Supp. 1267, 1268 (D.Vt., 1970); see also, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L. Ed. 1427 (1953); United States v. Shaw, 309 U.......
  • Hunt v. Board of Education of County of Kanawha, Civ. A. No. 70-225.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • January 18, 1971
    ...discussion or instruction. It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred 321 F. Supp. 1267 position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definite......

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