United States v. Allen
| Decision Date | 25 February 1964 |
| Docket Number | No. 20607.,20607. |
| Citation | 328 F.2d 377 |
| Parties | UNITED STATES of America, Appellant, v. Scott W. ALLEN, Jr., et al., Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Tax Div., Dept. of Justice, Washington, D. C., Charles L. Goodson, U. S. Atty., Slaton Clemmons, Asst. U. S. Atty., Atlanta, Ga., Joseph Kovner, George F. Lynch, Attys., Tax Div., Dept. of Justice, Washington, D. C., Meyer Rothwacks, Atty., Dept. of Justice, Washington, D. C., for appellant.
Harold Karp, Newell Edenfield, Edenfield, Heyman & Sizemore, Atlanta, Ga., for appellees.
Before TUTTLE, Chief Judge, JONES, Circuit Judge, and JOHNSON, District Judge.
The Internal Revenue Service of the United States made assessments against the appellee, Scott W. Allen, Jr., and Frances Allen, his wife, for $270,066.13, and against the appellee individually for $155,819.92, plus interest. Scott W. Allen, Jr., was a beneficiary of the estate of his mother in the amount of $40,000.00, or more. The Fulton National Bank of Atlanta, Georgia, is the executor of the mother's estate. On June 9, 1960, a bill of complaint for the appointment of a receiver of the assets of Scott W. Allen, Jr., was filed in the Superior Court of Fulton County, Georgia. On May 17, 1961, the District Director of Internal Revenue caused a Notice of Levy to be served on the Fulton National Bank demanding the surrender of all property belonging to the Allens, and this was followed by a further and more specific demand on November 8, 1963. The Fulton County Superior Court, on January 29, 1962, appointed Thomas E. Moran as Receiver of the assets of Scott W. Allen, Jr., in the proceeding which had been commenced on June 9, 1960. The United States, on November 28, 1962, brought suit against the Allens, against Moran as Receiver, and against the Fulton National Bank, as Executor. By its complaint the United States sought personal judgments against the Allens, asserted a lien on the funds held by the Fulton National Bank, and prayed for the foreclosure of the lien against the defendants. The court entered a temporary restraining order enjoining the bank from making any transfer of the fund held by it until the further order of the court.
Moran, as Receiver, answered and asserted that the fund in the possession of the Bank came into the constructive custody of the Receiver upon the filing of the receivership bill which was prior to the levy of the United States. Moran, the Receiver, filed a motion asking that the complaint be dismissed as to him, that the restraining order be dissolved, and that the Bank turn over to him the fund in its possession. The court entered an order in which it was stated that the court was "of the opinion that the appointment of a receiver in the state court proceeding, whenever such appointment was made, relates back to the filing of the original bill and that the assets in question were, therefore, already in the constructive custody of the state court when the Government's levy attached." The court adjudged (1) that as between it and the state court, the state court had jurisdiction to administer the fund of Scott W. Allen held by the Fulton Bank, (2) that it had jurisdiction to proceed with the case to determine the amount of the Government's claim against Scott W. Allen, and to foreclose its lien against him, (3) that the priorities of Allen's creditors, including the Government, were to be determined by the state court. The order dismissed the action as to the Receiver and provided for its continuance for the stated purposes against the other defendants. The order was entered on February 6, 1963. On March 13, 1963, another order was entered which amended the earlier order by adding thereto the following, "The application of the United States for preliminary injunction is hereby denied and the restraining order heretofore granted in said...
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S.E.C. v. Wencke
...243 U.S. 655, 37 S.Ct. 480, 61 L.Ed. 948 (1916), appeal dismissed, 245 U.S. 634, 38 S.Ct. 133, 62 L.Ed. 522 (1917); United States v. Allen, 328 F.2d 377 (5th Cir. 1964). "Courts have been anxious to prevent direct interference without forcing one tribunal to be overly cautious about the pos......
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City of Dallas, Texas v. United States, 23160.
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