United States v. Bess Bess v. United States

• Decision Date: 09 June 1958
• Docket Number: 410,Nos. 395,s. 395
• Citation: 2 L.Ed.2d 1135,357 U.S. 51,78 S.Ct. 1054
• Parties: UNITED STATES of America, Petitioner, v. Molly G. BESS. Molly G. BESS, Petitioner, v. UNITED STATES of America
• Court: U.S. Supreme Court

357 U.S. 51

78 S.Ct. 1054

2 L.Ed.2d 1135

UNITED STATES of America, Petitioner,

v Molly G. BESS.

Molly G. BESS, Petitioner,

v. UNITED STATES of America.

Nos. 395, 410.

Argued April 7, 1958.

Decided June 9, 1958.

Mr. John F. Davis, Washington, D.C., for the United States.

Mr. Morris J. Oppenheim, Newark, N.J., for respondent.

Mr. Justice BRENNAN delivered the opinion of the Court.

The United States filed this civil action in the District Court for the District of New Jersey to recover, in equity, from the beneficiary of life insurance policies the amount of federal income taxes owed by the insured at the time of his death.

Herman Bess died a resident of Monmouth County, New Jersey, on June 29, 1950. His wife, Molly G. Bess, was the beneficiary of eight insurance policies on his life from which she received $63,576.95 in proceeds. The cash surrender value of these policies at his death was $3,362.53. Seven of the policies were issued to Mr. Bess from 1934 to 1937 and the eighth, a group policy, in 1950. He retained the right until death to change the beneficiary, to draw down or borrow against the cash surrender value and to assign the policies, except that under the group insurance policy he retained only the right to change the beneficiary. Mr. Bess paid all premiums and it is conceded that none was paid in fraud of his creditors.

The federal income taxes were owing for the several years from 1945 to 1949. The assets of Mr. Bess' estate were applied to payment of the amounts owing for 1948 and 1949, but a total of $8,874.57 remained owing for 1945, 1946 and 1947 when the estate was adjudged insol- vent by the Monmouth County Court in 1952. The amounts owing were $4,159.31 for 1945, $3,789.32 for 1946, and $925.94 for 1947.

The District Court held Mrs. Bess liable for the total taxes owing of $8,874.57. 134 F.Supp. 467. The Court of Appeals for the Third Circuit reduced the judgment to the amount of the total cash surrender value of the policies of $3,362.53. 243 F.2d 675. We granted certiorari on the Government's petition and Mrs. Bess' cross-petition, 355 U.S. 861, 78 S.Ct. 98, 2 L.Ed.2d 67, and set the case for argument with Commissioner v. Stern, 357 U.S. 39, 78 S.Ct. 1047. The Government seeks in No. 395 the reinstatement of the District Court's judgment in the full amount of the taxes owing. Mrs. Bess seeks in No. 410 the reversal of the Court of Appeals judgment in the amount of the cash surrender value.

I.

As in Commissioner v. Stern, the Government argues that Mrs. Bess, as beneficiary of her husband's life-insurance policies, is liable for his unpaid federal income taxes.¹ We held today in the Stern case that recovery of unpaid federal income taxes from a beneficiary of insurance, in the absence of a lien, can be sustained only to the extent that state law imposes such liability in favor of other creditors of the insured. Under New Jersey law the beneficiary of a policy of life insurance is entitled to its proceeds against all creditors except to the extent of the amount of any premiums for the insurance paid in fraud of creditors. N.J.Stat.Ann., 1939, § 17:34—29; Slurszberg v. Prudential Ins. Co., 15 N.J.Misc. 423, 192 A. 451; Middlesex County Welfare Board v. Motolinsky, 134 N.J.Eq. 323, 35 A.2d 463. If in the instant case no lien were involved, our holding in Commissioner v. Stern would require an affirmance in No. 395 and a reversal in No. 410, since it is conceded that Mr. Bess did not pay any premiums in fraud of his creditors.

II.

However, the Government contends that it is also seeking in this action to enforce, as to the 1945 and 1946 deficiencies, liens perfected under § 3670 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3670 against the property of Mr. Bess in his lifetime. Section 3670 provides that 'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount * * * shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.' 53 Stat. 448. On July 30, 1948, and again on August 9, 1948, before Mr. Bess died, notice and demand were made upon him for payment of the deficiencies formally consented to by him as owing for 1945 and 1946. He made periodic payments on the amount owing for 1945, reducing that amount from $11,514 to $4,713.59 before his death. This balance was further reduced to $4,159.31 by a payment of $554.28 from his estate pursuant to an order of the Monmouth County Court. However, no payment on account of the $3,789.32 owing for 1946 was made either in his lifetime or after his death.

First. As to the tax lien theory, Mrs. Bess contends that the Government did not assert this basis for recovery before the District Court and therefore should not be heard to assert that theory in this Court. But the essential facts pertinent to a decision on the merits of the tax lien theory were stipulated in the District Court. Moreover, the issue was fully briefed and argued both in the Court of Appeals and in this Court. We therefore see no basis for any inference of prejudice in the circumstances, and accordingly proceed to a determination of the question.

Second. Mrs. Bess argues that in any event no lien attached to any property of Mr. Bess since a lien does not attach under § 3670 unless and until the delinquent taxpayer 'neglects or refuses to pay the same after demand.' She urges that the facts stipulated as to the payments on account of 1945 taxes made by Mr. Bess in his lifetime prove that he did not neglect or refuse to pay taxes after demand. Since, in the view we take of this case, the liability of Mrs. Bess is limited to the cash surrender value of $3,362.53, it suffices that whatever may be the case as to the 1945 taxes the requisite neglect or refusal was plainly established as to the 1946 delinquency of $3,789.32, for it is admitted that Mr. Bess neither paid nor attempted to pay anything on account of those taxes.

Third. We must now decide whether Mr. Bess possessed in his lifetime, within the meaning of § 3670, any 'property' or 'rights to property' in the insurance policies to which the perfected lien for the 1946 taxes might attach. Since § 3670 creates no property rights but merely attaches consequences, federally defined, to rights created under state law, Fidelity & Deposit Co. v. New York City Housing Authority, 2 Cir., 241 F.2d 142, 144, we must look first to Mr. Bess' right in the policies as defined by state law.

(a) It is not questioned that the rights of the insured are measured by the policy contract as enforced by New Jersey law. Manifestly the insured could not enjoy the possession of the proceeds in his lifetime. His right to change the beneficiary, even to designate his estate to receive the proceeds, gives him no right to receive the proceeds while he lives. Cf. Rowen v. Commissioner, 2 Cir., 215 F.2d 641, 644. It would be anomalous to view as 'property' subject to lien proceeds never within the insured's reach to enjoy, and which are reducible to possession by another only upon the insured's death when his right to change the beneficiary comes to an end. We therefore do not believe that Mr. Bess had 'property' or 'rights to property' in the proceeds, within the meaning of § 3670, to which the federal tax lien might attach. Cannon v. Nicholas, 10 Cir., 80 F.2d 934; see United States v. Burgo, 3 Cir., 175 F.2d 196. This conclusion is in harmony with the decision in Everett v. Judson, 228 U.S. 474, 33 S.Ct. 568, 57 L.Ed. 927, that the cash surrender value of a policy on the life of a bankrupt is the extent of the property which is vested in the trustee under § 70a of the Bankruptcy Act, 11 U.S.C.A. § 110.

(b) The cash surrender value of the policy, however, stands on a different footing. The insured has the right under the policy contract to compel the insurer to pay him this sum upon surrender of the policy. This right may be borrowed against, assigned or pledged. Slurszberg v. Prudential Ins. Co., supra. Thus Mr. Bess 'possessed just prior to his death, a chose in action in the amount stated (i.e., the cash surrender value) which he could have collected from the insurance companies in accordance with the terms of the policies.' 243 F.2d 675, 678. It is therefore clear that Mr. Bess had 'property' or 'rights to property,' within the meaning of § 3670, in the cash surrender value. United States v. Hoper, 7 Cir., 242 F.2d 468; Knox v. Great West Life Assurance Co., 6 Cir., 212 F.2d 784; United States v. Royce Shoe Co., D.C., 137 F.Supp. 786; Smith v. Donnelly, D.C., 65 F.Supp. 415; United States v. Aetna Life Ins. Co., D.C., 46 F.Supp. 30.

But it is contended that under state law the insured's property right represented by the cash surrender value is not subject to creditors' liens, whether asserted by a private creditor, Slurszberg v. Prudential Ins. Co., supra, or by a state agency, Middlesex County Welfare Board v. Motolinsky, supra. However, once it has been deter- mined that state law creates sufficient interests in the insured to satisfy the requirements of § 3670, state law is inoperative to prevent the attachment of liens created by federal statutes in favor of the United States. Such state laws 'are not laws for the United States * * * unless they have been made such by Congress itself.' Fink v. O'Neil, 106 U.S. 272, 276, 1 S.Ct. 325, 328, 27 L.Ed. 196; cf. Commissioner v. Tower, 327 U.S. 280, 66 S.Ct. 532, 90 L.Ed. 670.² The provisions of the Internal Revenue Act creating liens upon taxpayer's property for unpaid income taxes, unlike § 6 of the Bankruptcy Act, 30 Stat. 548, as amended, 11 U.S.C. § 24, 11 U.S.C.A. § 24, do not specifically provide for recognition of such state laws. The fact that in § 3691, 26 U.S.C.A. § 3691, Congress provided specific exemptions from distraint is evidence that Congress did not intend to recognize further exemptions which would prevent attachment of liens under § 3670. Knox v....