United States v. FRANKLIN FEDERAL SAVINGS. & LOAN ASS'N

• Decision Date: 30 April 1956
• Docket Number: Civ. A. No. 4476.
• Citation: 140 F. Supp. 286
• Parties: UNITED STATES of America, Plaintiff, v. FRANKLIN FEDERAL SAVINGS AND LOAN ASSOCIATION, Sidney Kirschner, Roberta Kirschner, Defendants, Luzerne Lumber Company, Inc., Intervening Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

140 F. Supp. 286

UNITED STATES of America, Plaintiff, v. FRANKLIN FEDERAL SAVINGS AND LOAN ASSOCIATION, Sidney Kirschner, Roberta Kirschner, Defendants Luzerne Lumber Company, Inc., Intervening Defendant.

Civ. A. No. 4476.

United States District Court M. D. Pennsylvania.

April 30, 1956.

J. Julius Levy, U. S. Atty., Scranton, Pa., for plaintiff.

Joseph J. Savitz, Wilkes-Barre, Pa., for defendants.

Al. J. Kane, Wilkes-Barre, Pa., for intervening defendant.

WATSON, District Judge.

In this action the government requests judgment against the defendants, the Franklin Federal Savings and Loan Association and Sidney Kirschner and Roberta Kirschner, in the amount of $2,736 with interest from July 11, 1952. The government's claim is based upon Section 3710 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3710, which provides:

"(a) Requirement. Any person in possession of property, or rights to property, subject to distraint, upon which a levy has been made, shall, upon demand by the collector or deputy collector making such levy, surrender such property or rights to such collector or deputy, unless such property or right is, at the time of such demand, subject to an attachment or execution under any judicial process.

"(b) Penalty for violation. Any person who fails or refuses to so surrender any of such property or rights shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the taxes (including penalties and interest) for the collection of which such levy has been made, together with costs and interest from the date of such levy."

The Commissioner of Internal Revenue duly assessed certain taxes against one Lewis H. Dixon and assessment lists containing these assessments were received by the Collector of Internal Revenue. On May 22, 1952, a warrant for distraint for the collection of taxes assessed against Dixon was issued, and on June 11, 1952, notices of lien and levy were served on the defendants, the Franklin Federal Savings and Loan Association and Sidney and Roberta Kirschner, who were indebted to Dixon in the sum of $2,736. The defendants contend that on May 22, 1952, when the warrant for distraint was issued, they were not indebted to Dixon for the reason that on January 11, 1952 Dixon assigned credits in the sum of $2,700 against the Franklin Federal Savings and Loan Association and the Kirschners to the Luzerne Lumber Company, Inc.

On March 31, 1954, an order was entered by this Court permitting the Luzerne Lumber Company, Inc. to intervene as a defendant. On the same date the intervening defendant filed its motion for summary judgment, which is now before the Court for disposition.

Paragraphs 8 and 9 of intervening defendant's motion for summary judgment admit that the sum of $2,736 is still in the possession of the Franklin Federal Savings and Loan Association, and had not been turned over to the intervening defendant, Luzerne Lumber Company, Inc., on June 11, 1952, when notice of lien and levy was served on the association and the Kirschners. Attached to the intervening defendant's motion, and identified as "Intervening Defendant's Exhibit #1", is a photostatic copy of the assignment dated January 11, 1952. It should be noted that the assignment states that Lewis H. Dixon, "in consideration of the sum of $2700.00 now justly due and owing by me to the Luzerne Lumber Company * * * for lumber and building materials furnished to and used by me in the erection and construction of that certain dwelling or building for Sidney Kirschner and Roberta Kirschner * * * and for better securing of the said sum to the said Luzerne Lumber Company * * *" assigns to the Luzerne Lumber Company the sum of $2700.00 "to be paid out of the balance now due and owing to me" by the Kirschners "for carpenter labor and materials furnished by me" to the Kirschners. This instrument of assignment clearly indicates by its language that the assignment was not made for any present consideration but for the securing of the payment of a preexisting indebtedness between Dixon and the Luzerne Lumber Company, for lumber and building materials previously sold by the Luzerne Lumber Company to the taxpayer Dixon on credit.

At the hearing on the motion for summary judgment, the United States Attorney presented pertinent assessment lists, showing the dates on which the assessments against Dixon were made by the Commissioner of Internal Revenue, the dates on which the assessment lists were received by the Collector of Internal...