United States v. Fisher

• Decision Date: 07 September 1948
• Docket Number: Civ. No. 26263.
• Parties: UNITED STATES v. FISHER et al. GLEASON, Sheriff v. UNITED STATES et al.
• Court: U.S. District Court — Northern District of California

93 F. Supp. 73

UNITED STATES v. FISHER et al.

GLEASON, Sheriff v. UNITED STATES et al.

Civ. No. 26263.

United States District Court N. D. California, S. D.

September 7, 1948.

Frank J. Hennessy, U. S. Atty., San Francisco, Cal., for plaintiff.

G. V. Curtis, San Francisco, Cal., for defendants.

LEMMON, District Judge.

This suit was brought by plaintiff to recover certain unpaid federal insurance contribution taxes and to collect certain withholding taxes assessed against defendants R. F. Fisher, W. F. Minehan and A. G. Magnuson, doing business as East Bay Ship Service, hereinafter called "taxpayers". The California Employment Stabilization Commission seeks to enforce liens for delinquent unemployment insurance contributions, and the Rix Company seeks to enforce a lien of attachment and execution. The fund upon which these asserted liens are sought to be impressed was derived from money owing to taxpayers from the Curtola Company, arising out of transactions between them as contractor and subcontractor. This fund amounts to $14,513.24 and is impounded in the registry of the court pending the outcome of this action.

The parties hereto in their briefs agree that the statement of facts contained in plaintiff's brief is fair and the following is a brief summary thereof.

On October 5, 1945, defendant, the Rix Company, Inc., brought action against taxpayers in the Superior Court of the State of California to recover $3,566.40 with interest and costs. On the same day a writ of attachment was issued and was levied upon Curtola Company on October 6, 1945. October 20, 1945 the sum of $3,566.40 was received by the Sheriff of Alameda County, California, from Curtola Company in obedience to the writ. March 8, 1946 the Superior Court of the State of California, in and for the City and County of San Francisco, entered its judgment in that action in favor of the Rix Company, Inc., against taxpayers for the sum of $3,566.40 with interests and costs. On March 13, 1946 a writ of execution was issued in that action for the sum of $3,601.90 and was levied by the Sheriff, who then declined to pay the Rix Company the $3,566.40 because of intervening claims thereto of plaintiff and the State of California hereinafter set forth. The lien of the writ of attachment had never been released or discharged prior to the levy of the writ of execution.

December 14, 1945, certificate No. 0270 in the amount of $5,748.06 and certificate No. 0271 in the amount of $233.52 for delinquent unemployment insurance contributions were issued by the California Employment Stabilization Commission against taxpayers. On the same day the Commission issued warrants Nos. 053 and 054 against taxpayers. The warrants were delivered to the Sheriff of Alameda County on December 17, 1945 with instructions to levy on all accounts receivable in the hands of Curtola Company and belonging to taxpayers. The certificates were recorded and the warrants levied on the same day.

The Commissioner of Internal Revenue December 20, 1945 assessed federal withholding taxes for the 3rd quarter of 1945 against taxpayers in the sum of $9,517.02, after allowing a credit for the 4th quarter of 1945 in the sum of $1,019.10. The assessment list covering the total of these sums was received in the office of the Collector of Internal Revenue at San Francisco, California, December 26, 1945, and the Collector issued Notice of Demand December 28, 1945.

January 15, 1946 Commissioner of Internal Revenue assessed federal insurance contribution taxes against taxpayers for the 3rd quarter of 1945 in the sum of $257.78, after a credit allowance. On July 12, 1946 the Commissioner made a similar assessment in the amount of $10.81, after credit allowance. January 24, 1946 the assessment list for the 3rd quarter of 1945 taxes was received by the Collector of Internal Revenue in San Francisco, California, who issued Notice of Demands to taxpayers on the same date.

Again, March 29, 1946 the Commissioner assessed federal insurance contribution taxes against the taxpayers in the sum of $275.05; the assessment list therefor was received in San Francisco April 10, 1946 and Notice and Demand issued the same day.

California Employment Stabilization Commission issued on February 4th, 1946 certificate No. 0455 for delinquent unemployment insurance contributions for the 4th quarter of 1945 in the amount of $559.48; said certificate was recorded in Alameda County February 9, 1946, and a warrant, No. 069, was delivered to the Sheriff who levied on the funds owing taxpayers by Curtola Company February 13, 1946. On December 11, 1946 warrants Nos. 053-A and 054-A were delivered to the Sheriff of Alameda County with instructions to levy on the fund then in his possession (the money heretofore received from Curtola Company as taxpayers' money), and said warrants were levied.

The interested parties hereto stipulated that the $14,513.24 in question here was due and owing the taxpayers by Curtola Company on October 5, 1945, the date the Rix Company sued taxpayers in the Superior Court.

The questions involved are: (1) Have liens been created on said fund in favor of each of the three claimants, the United States for unpaid withholding and social security taxes, the State of California for unemployment taxes and the claim of the Rix Company created by attachment and later by judgment and execution; (2) The priority of said liens to the fund heretofore owing by Curtola Company to taxpayers and now in the registry of this court.

The liens considered herein are all of statutory origin, and, unless a preference is specifically granted by statute, priority would be governed entirely by the time of their creation. California Civil Code, Sec. 2897.

By statute the United States is given a lien on all property and rights to property belonging to a taxpayer who has not paid after demand a tax due it. 26 U.S.C.A. § 3670. The lien arises at the time the assessment list is received by the Collector of Internal Revenue unless a specific date is set by law, 26 U.S.C.A. § 3671, and no specific date is set by statute as to the tax liens claimed by plaintiff.

The claim of lien made by The Rix Company sets forth the proposition that when it obtained an execution and levy upon the money due taxpayers from Curtola Co. a lien was perfected in its favor and that this lien related back as a matter of time to the date the attachment was levied.

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