United States v. Bernstein

• Decision Date: 22 November 1926
• Docket Number: No. 292,292
• Citation: 16 F.2d 233
• Parties: UNITED STATES v. BERNSTEIN.
• Court: U.S. Court of Appeals — Eighth Circuit

16 F.2d 233 (1926)

UNITED STATES v. BERNSTEIN.

No. 292, Orig.

Circuit Court of Appeals, Eighth Circuit.

November 22, 1926.

Ambrose C. Epperson, Asst. U. S. Atty., of Omaha, Neb. (James C. Kinsler, U. S. Atty., Andrew C. Scott, Asst. U. S. Atty., and George A. Keyser, Asst. U. S. Atty., all of Omaha, Neb., on the brief), for the United States.

Herman Aye, of Omaha, Neb. (J. D. Cranny, of Omaha, Neb., on the brief), for respondent.

Before KENYON and VAN VALKENBURGH, Circuit Judges, and CANT, District Judge.

VAN VALKENBURGH, Circuit Judge.

The respondent was adjudged a bankrupt in the District Court for the District of Nebraska, October 28, 1924, and the matter was duly referred to the referee in bankruptcy at Omaha. January 10, 1925, the collector of internal revenue for the district of Nebraska filed the claim of the United States against said bankrupt for income taxes in the sum of $4,605.36. February 26th the duly appointed trustee reported to the referee that he had set off $500 in lieu of homestead as exempt to the bankrupt. June 22, 1925, the United States filed exceptions to this report of the trustee. Thereafter, upon hearing, the referee in bankruptcy entered an order disapproving said allowance and refusing to set the same aside as exempt. On review in the District Court the order of the referee was overruled, and the report of the trustee ratified and approved. It is to revise this action of the court that this proceeding is instituted.

The contention of the government is that under the bankruptcy law federal taxes must be paid before exemptions are set aside to the bankrupt, and, in this connection, that under the laws of Nebraska there are no exemptions from taxes, state or national. It is conceded that section 9035 of the Compiled Statutes of Nebraska 1922 provides that all heads of families who have neither lands, town lots, nor houses subject to exemptions as a homestead under the laws of that state, shall have exempt from forced sale on execution the sum of $500 in personal property, except wages; but it is urged that said section 9035 must be read in connection with section 9038, which provides that "nothing in this article shall be considered as exempting any real or personal property from levy and sale for taxes."

Respondent relies upon section 6a of the Bankruptcy Act (Comp. St. § 9590), which reads: "This act shall not affect the allowance to bankrupts of the exemptions which are prescribed by the state laws in force at the time of the filing of the petition in the state wherein they have had their domicile for the six months or the greater portion thereof immediately preceding the filing of the petition" — and contends that the proviso of section 9038 of the Nebraska Statutes which provides that property set aside under section 9035 shall not be exempt from levy and sale for taxes, applies only to state and local taxes, and not to those due the United States. It is further urged by counsel for respondent that, when the United States filed its claim for taxes, whether required to do so or not, it laid aside its sovereign character, became a party to the proceeding, and is bound by the rules applicable thereto; that under General Order XVII the referee had neither power nor jurisdiction to review the action and report of the trustee setting apart the exemption of $500, unless and until exceptions to the determination of the trustee were filed within 20 days after the filing of the report.

Section 9038 of the Statutes of Nebraska has received no interpretation at the hands of the Supreme Court of that state to which our attention has been called, and, for reasons hereinafter stated, we find it unnecessary to anticipate construction by that court. In our judgment, the conceded priority of the claim of the United States for taxes due, in absence of valid exemption under state law, is not decisive of this controversy.

By section 1 of the Bankruptcy Act (Comp. St. § 9585) the term "creditor" shall "include any one who owns a demand or claim provable in bankruptcy." The term "debt" shall "include any debt, demand, or claim provable in bankruptcy." Collier on Bankruptcy, vol. 1, pp. 1, 2.

Section 63a of the Act (Comp. St. § 9647), under the heading "Debts Which May Be Proved," includes:

"(1) A fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not. * * *"

(4) Claims "founded upon an open account or upon a contract express or implied. * * *"

Section 64 (Comp. St. § 9648) under the heading "Debts Which Have Priority," provides:

"The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality in advance of the payment of dividends to creditors, * * * and in case any question arises as to the amount or legality of any such tax the same shall be heard and determined by the court."

Commenting upon this section Mr. Collier says:

"In the case of income taxes, it seems that notice to the taxing power is necessary, or at least a proper condition precedent to any action by the trustee, and that after the government has received notice it must file a claim for taxes if it desires to share in the estate; that it cannot stand by, after it has been granted permission to file its claim and expect to subsequently collect the tax from the bankrupt or his trustee" — citing Matter of Anderson (C. C. A. 2) 279 F. 525. Collier on Bankruptcy, vol. 2, pp. 1447, 1448.

General Order No. XVII of the Supreme Court provides that the trustee shall make report to the court of his action setting aside exemptions to the bankrupt, and that any creditor may take exceptions to the determination of the trustee within 20 days after the filing of the report. It is undoubtedly held that taxes are not debts in the ordinary sense. New Jersey v. Anderson, 203 U. S. 483-492, 27 S. Ct. 137, 51 L. Ed. 284; Lane County v. Oregon, 7 Wall. 71, 19 L. Ed. 101; Meriwether v. Garrett, 102 U. S. 472-513, 26 L. Ed. 197; Hecox v. Teller County (C. C. A. 2) 198 F. 634, 117 C. C. A. 338. Whether they are such under the Bankruptcy Act for some purposes and to the extent of constituting a demand or claim provable in bankruptcy is another question. The District Court for the District of Delaware (In re United Button Co., 140 F. 495, 502, 503) considers this phase of the matter. It says:

"A tax is not strictly a debt. It lacks the nature of a debt in that, though for a sum certain, it is not founded upon any agreement or assent of the person or persons against whom it is assessed, but is a burden for public purposes imposed in invitum. As an obligation or duty created by statute to pay money, however, it is quasi contractual. * * * Keener, in his work on Quasi Contracts, p. 16, states that `a statutory obligation which does not rest upon the consent of the parties, is clearly quasi contractual in its nature.' * * * Thus the taxes enumerated in section 17 Comp. St. § 9601, `legally due and owing by the bankrupt,' by section 64 are directed to be paid out of the estate, by section 17 are recognized as `provable debts,' and are demands of a quasi contractual nature. While strict or...