United States v. Goldblatt Bros.

• Decision Date: 16 June 1942
• Docket Number: No. 7797.,7797.
• Citation: 128 F.2d 576
• Parties: UNITED STATES v. GOLDBLATT BROS., Inc.
• Court: U.S. Court of Appeals — Seventh Circuit

128 F.2d 576 (1942)

UNITED STATES v. GOLDBLATT BROS., Inc.

No. 7797.

Circuit Court of Appeals, Seventh Circuit.

May 23, 1942.

Rehearing Denied June 16, 1942.

COPYRIGHT MATERIAL OMITTED

Nicholas J. Pritzker, Stanford Clinton, and Robert Marks, all of Chicago, Ill., for appellant.

A. A. Armstrong, of Washington, D. C., Samuel O. Clark, Jr., Ass't Atty. Gen., J. Louis Monarch and Joseph M. Jones, Sp. Ass'ts. Atty. Gen., and J. Albert Woll, U. S. Atty., of Chicago, Ill., for appellee.

Before MAJOR, KERNER, and MINTON, Circuit Judges.

KERNER, Circuit Judge.

The United States, claiming as a creditor under the Illinois Bulk Sales Law,¹ sued defendant as the purchaser of the major part of the assets of the New Dahl Corporation, to recover an indebtedness for unpaid taxes owing by New Dahl. There was a trial without a jury and the court made findings of fact, stated its conclusions of law thereon, and rendered judgment for the plaintiff. From that judgment, the defendant appeals.

Defendant is the owner of ten department stores located in Chicago and vicinity. Prior to November 22, 1937, New Dahl operated the shoe repair concessions in the stores. Defendant had no share in the ownership of these concessions and no voice in their management; the control was in Norman Dahlman and the members of his immediate family.

For quite sometime prior to November, 1937, New Dahl had been having financial difficulties, and in July of that year matters grew worse and creditors began to complain to the defendant about New Dahl's unpaid bills. Thereafter defendant's vice-president had a number of meetings with Dahlman concerning his corporation's financial troubles. Yet, the aggravation continued, and in November the pay checks of New Dahl to its employes "bounced." Finally, on November 22, 1937, in a sale which was not in the regular course of the business, New Dahl sold to the defendant the bulk of its assets — consisting of all of the physical assets, machinery and equipment which New Dahl had used in its business — and retained nothing but the accounts receivable owing to it by certain of its officers and by its subsidiary, the Crest Shoe Repair Company. These obligations were uncollectible.

At the time of the sale, the parties prepared the agreement and the affidavit required by the Illinois Bulk Sales Act. The affidavit was in the usual form and attached to it was the list of purportedly all of the New Dahl creditors as of the date of the sale. The Government's name appeared nowhere on that list. By the terms of the agreement, the defendant assumed to discharge all of the listed obligations of New Dahl in return for all of the assets, save the accounts receivable owed by the officers and the subsidiary.

The defendant sent to all the listed creditors the notice of sale required by the Bulk Sales Act; it sent none to the plaintiff, although on the date of the sale, New Dahl had the following federal tax liability, and the defendant had knowledge of the existence of the plaintiff as a creditor of New Dahl:

                  Year
                  1936 Income Tax ..................    717.58
                  1936 Social Security Taxes — Title
                         IX ........................    373.07
                  Nov
                  1937 Social Security Taxes — Title
                         VIII ......................     78.74
                  1937 Income Taxes ................  1,311.79
                  1937 Social Security Taxes — Title
                         IX ........................  1,733.58
                

Defendant discharged only the listed obligations by cash payments of $29,676.75, and on December 31, 1937, paid $39.44 to the Collector of Internal Revenue on account of New Dahl's November 1937 Title VIII Social Security taxes.

The plaintiff's complaint is that the defendant violated the Illinois Bulk Sales Act by failing to serve notice of the bulk sales transaction upon the plaintiff, who, the defendant knew, was a creditor of the bulk vendor. The claimed liability is statutory and is imposed to the extent that the bulk sales vendee has failed to comply with the Act.²

The defendant's initial argument against the trial court's judgment is that there was neither admissible nor sufficient evidence binding upon the defendant to establish that the Government was a New Dahl creditor for any amount.

The record discloses that the Government used the filed returns of the New Dahl Corporation to establish the latter's tax liability. The defendant's objection to the evidence is that it is hearsay and not the best evidence.

We believe that the trial court properly admitted the tax returns, not only as evidence of the assessed tax liability for 1936, but also of the 1937 tax obligations. It must be remembered that the returns were introduced to establish the primary liability of New Dahl, and not the primary liability of the defendant. The defendant's liability, if any, would not be for unpaid taxes as such, but would be the statutory liability of a bulk vendor to an aggrieved creditor of the bulk vendee. Clearly the tax returns were competent evidence of the taxpayer's liability for taxes, cf. Tameling v. Commissioner, 2 Cir., 43 F.2d 814-816, and established a prima facie liability. If the returns were an inaccurate statement or computation of New Dahl's tax obligations, the defendant had the burden of so proving. The returns were also substantial evidence, for the other evidence in the case is not such as to weaken the Government's prima facie case.

The defendant next contends that in so far as the 1937 Income and Title IX Social Security taxes are concerned, the Government was not a New Dahl creditor within the meaning of the Act, because those items of liability were neither liquidated and certain, nor presently due and owing.

The argument misinterprets not only the nature of the tax liabilities, but also the extent of the statute's applicability. To be sure, the Bulk Sales Act "is in derogation of the common law and penal in nature, and must therefore be strictly construed," Coon v. Doss, 361 Ill. 515, 520, 198 N.E. 341, 343, 102 A.L.R. 561, but strict construction does not further require the reading of limitations into the statute. The word creditor used in the statute has a broad meaning — sufficiently broad to include creditors of every class without limitations, Winthrop, etc., Co. v. Kournetas, 265 Ill.App. 535, 538, 539. It is not restricted to those creditors whose claims, at the time of the sale, were liquidated as to the amount. The statute makes this clear by providing for the listing of "the amounts owing to each creditor as near as may be ascertained."

The amount of the 1937 Title IX tax could have been exactly determined on the date of the sale, since it was merely based upon a percentage of New Dahl's payroll. In the case of the income tax, some 40 days remained in the vendor's tax year, but the very nature of the instant transaction made it most unlikely that the vendor would continue in business. Absent even this special circumstance, a reliable approximation of the liability could have been prepared and sent to the Government as part of the notice required by the statute.

Nor is the word "creditor" limited in the statute to those whose claims are presently due and owing. If such were the case, a merchandise creditor would not be a bulk vendor's creditor, within the meaning of the Act, unless the bill was due at or before the date of sale. It is significant that the statute contains only the word "owing." That word was not used in the limited sense of a liability that has become due and payable; it was to cover a liability in contra-distinction to a contingent claim which depended upon the occurrence of another event before liability was established. It is true a contingent claim for damages for breach of contract or for a tort is not covered by the Bulk Sales Act, Superior Plating Works v. Art Metal Crafts Co., 218 Ill. App. 148, but the tax items here involved are debts, cf. Shepard v. Commissioner, 7 Cir., 101 F.2d 595, 598, and are within the Act, notwithstanding they were not payable until after the date of the sale.

The defendant further argues that even if the Government was a creditor on the date of the sale, the defendant is not liable under the provisions of the Bulk Sales Act. The contention is that the defendant did not have actual knowledge of the tax claims.

It was the defendant's duty under the statute to send "* * * a notice in writing to each of the creditors of the vendor named in the said statement list attached to affidavit or of whom the said vendee shall have knowledge * * *."

The trial court found as a fact that on November 17, 1937, the defendant, through its authorized agents, had actual notice of the plaintiff's claims. Our reading of the record shows no reason for us to upset the lower court's finding as not supported by the evidence. We attach no importance to the fact that defendant gained the knowledge prior to the sale and that the notice was to agents other than the ones who actually closed the deal.

We must not lose sight of the fact that the...