Trinacia Real Estate Co. v. Clarke
| Decision Date | 27 July 1929 |
| Citation | 34 F.2d 325 |
| Parties | TRINACIA REAL ESTATE CO., Inc., v. CLARKE, Collector of Internal Revenue. SALVO v. SAME. FALCONE v. SAME. |
| Court | U.S. District Court — Northern District of New York |
Rocco R. Calli, of Utica, N. Y. (Roscoe Irwin, of Albany, N. Y., of counsel), for complainants.
Oliver D. Burden, U. S. Atty., of Syracuse, N. Y. (B. Fitch Tompkins, Asst. U. S. Atty., of Syracuse, N. Y., of counsel), for defendant.
There are two matters before the court for determination, viz. The motions for injunctions pendente lite brought before the court by complaints in each suit and the motions of defendant to dismiss the bills. The facts are such that the motions in the three suits may be considered together. The facts, as shown by the complaints, may be summarized as follows:
On January 27, 1928, Josephine Falcone and Mary Falcone, as tenants in common, conveyed to Trinacia Real Estate Company, Inc., the real estate described in the bill of complaint. The deeds were duly recorded. They recite a good and valuable consideration, and for all purposes of the motions it must be assumed the company became the bona fide purchaser of the properties described. At the time of the conveyance, there were no liens on file against any of the parcels. The former owners of this real estate were Joseph Falcone and Salvator Falcone.
On August 18, 1925, they, as tenants in common, conveyed the real estate in question to the said Josephine Falcone and Mary Falcone by deed which was duly recorded. At the time of the sale of the said parcels by the said Josephine Falcone and Mary Falcone to Trinacia Real Estate Company, Inc., January 27, 1928, the said Trinacia Real Estate Company, Inc., made, executed, and delivered to the said Josephine Falcone and Mary Falcone four bonds and four purchase-money mortgages, one for the sum of $2,000, one for the sum of $4,000, one for the sum of $2,000, and another for the sum of $12,000. On said 27th day of January, 1928, Josephine Falcone and Mary Falcone, for value, sold and assigned three of said bonds and mortgages, viz. one for $2,000, one for $4,000, and one for $2,000, to Luigi Salvo, complainant in one of the suits, and for value sold and assigned the fourth mortgage, the one for $12,000, to Antonio Falcone, the complainant in one of the suits. Mary Falcone, one of the grantors, is the wife of Joseph Falcone.
On or about March 29, 1928, the United States Commissioner of Internal Revenue, by letter, gave notice to Joseph Falcone and wife of the assessment of $12,092.39 for tax, penalty, and interest for the year 1926. From this assessment the said Falcone and wife appealed to the United States Board of Tax Appeals, which appeal was pending and undetermined at the time of the submission of these motions, and the court has not any knowledge that this status has yet been changed. The papers in the case do not state the nature of the assessment, but from all facts and circumstances it seems safe to assume that the Commissioner made a jeopardy assessment.
On June 23, 1928, a deputy collector in and for said twenty-first district caused to be served upon the complainant in each of the three suits a paper, which, in substance, stated that, by virtue of warrants of distraint issued to him by the collector of internal revenue of the twenty-first district of New York against each of said complainants, he had levied and seized the property in said paper described, which are the parcels of real estate described in the deeds above mentioned, and in addition to said real estate the four mortgages above mentioned, and that he would sell the same at public sale on July 24, 1928. The paper further stated: "This levy is made on account of income tax assessed against each of you as transferors of Joseph Falcone and wife, each in the amount of $112,178.17 and penalties due for the year 1926, viz.:
Penalty .......................... $72,249 10
Tax .............................. 36,138 47
Interest ......................... 3,790 60
Notice of sale under said alleged levy was duly advertised.
On or about June 25, 1928, each of the above-named complainants received from the Commissioner of Internal Revenue a letter, bearing date June 23, 1928, in the following form:
The first part of the attached statement reads as follows:
Thereafter, and on July 19, 1928, each of the complainants filed a complaint in equity setting forth the facts above stated, together with allegations tending to show irreparable injury, and praying, among other things, that pending the determination of the suit the defendant be restrained from proceeding with said sale. On July 20th, restraining orders were issued returnable July 30th, which, by...
To continue reading
Request your trial
-
Shelton v. Gill
...of exceptional circumstances. Likewise, transferees have been granted injunctive relief against the Collector in Trinacia Real Estate Co. v. Clarke, D.C. N.D.N.Y., 34 F.2d 325, and Rosenthal v. Allen, D.C.M.D.Ga., 75 F.Supp. 879. Relief was denied for want of equity in Felland v. Wilkinson,......
-
Shambaugh v. Scofield, 10298.
...Cf. Hubbard Inv. Co. v. Brast, 4 Cir., 59 F.2d 709; Long v. Rasmussen, D.C., 281 F. 236; Pool v. Walsh, 9 Cir., 282 F. 620; Trinacia Co. v. Clarke, D.C., 34 F.2d 325; Lion Co. v. Anderson, 10 Cir., 62 F.2d 325. 2 "* * * No suit for the purpose of restraining the assessment or collection of ......
-
Filipowicz v. Rothensies
...is sought." Id., 281 F. at page 238. In accord, see Lion Coal Co. v. Anderson, 10 Cir., 1932, 62 F.2d 325, 328; Trinacia Real Estate Co. v. Clark, D.C., 1929, 34 F.2d 325, 328; Owensboro Ditcher & Grader Co. v. Lucas, D.C., 1927, 18 F.2d 798, Compare Cannon v. Nicholas, 10 Cir., 1935, 80 F.......
-
Long v. Kelly, 224-E.
...&c., D.C., 281 F. 236; Owensboro Ditcher & Grader Co. v. Lucas, Collector, &c., D.C., 18 F.2d 798, 802; Trinacia Real Estate Co., Inc. v. Clarke, Collector, &c., D.C., 34 F.2d 325, 328; Regents of University System of Georgia v. Page, 5 Cir., 81 F.2d 577; Allen, Collector, &c., v. Regents o......