United States v. Hodes

• Decision Date: 08 February 1966
• Docket Number: No. 95,Docket 29784.,95
• Citation: 355 F.2d 746
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Charles HODES, Bess Berkowitz, Mid-City Park View Apartments, Inc., and Jefferson County Savings Bank, Defendants-Appellees, Dale Kaiser, Evalyn Kaiser, 330 East 77th Street Corp., 77 Holding Corporation, 330 East 77th Street Associates, Sterling Investment Corp. and Sea-Ways Shipping Corporation, Defendants.
• Court: U.S. Court of Appeals — Second Circuit

355 F.2d 746 (1966)

UNITED STATES of America, Plaintiff-Appellant, v. Charles HODES, Bess Berkowitz, Mid-City Park View Apartments, Inc., and Jefferson County Savings Bank, Defendants-Appellees Dale Kaiser, Evalyn Kaiser, 330 East 77th Street Corp., 77 Holding Corporation, 330 East 77th Street Associates, Sterling Investment Corp. and Sea-Ways Shipping Corporation, Defendants.

No. 95, Docket 29784.

United States Court of Appeals Second Circuit.

Argued October 8, 1965.

Decided February 8, 1966.

Dawnald R. Henderson, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., for Southern Dist. of New York, and Arthur S. Olick, Asst. U. S. Atty., New York City, on the brief), for plaintiff-appellant.

Martin Schlesinger, New York City, for appellee Mid-City Park View Apartments, Inc.

Samuel Kirschenbaum, Dreyer & Traub, Brooklyn, N. Y., for appellees Charles Hodes, Bess Berkowitz and Jefferson County Savings Bank.

Before LUMBARD, Chief Judge, and WATERMAN and HAYS, Circuit Judges.

LUMBARD, Chief Judge.

The United States appeals from an order of the District Court for the Southern District of New York which denied its motion for summary judgment and granted summary judgment to Charles Hodes, Bess Berkowitz, Mid-City Park View Apartments, Inc., and Jefferson County Savings Bank, the appellees. The question presented is whether federal tax assessment liens are enforceable against New York County real property which was formerly owned by the taxpayer, Dale Kaiser. Notice of the liens was filed in the appropriate New York registry, but the liens have lapsed unless extended by a 1958 federal judgment against the taxpayer. Appellees are the property's present owner and two mortgagees; their interests were perfected after the notice of lien was filed but before the judgment was docketed as required by New York law. The judgment below is reversed with instructions to enter summary judgment for the United States.

The facts are undisputed. From June 21, 1949 to October 17, 1951, the District Director of Internal Revenue made federal withholding tax assessments totaling $5,751.18 against Kaiser. The bulk of these assessments remain unsatisfied. To protect the government's lien "upon all property and rights to property, whether real or personal, belonging to" Kaiser,¹ the United States filed a Notice of Lien with the Register of the City of New York in New York County on July 19, 1955.²

In November 1957, Kaiser purchased the realty in question, which is located in New York County. In February 1958, the government brought suit in the District Court for the Southern District of New York to reduce the aforesaid assessments to judgment; this suit was timely because Kaiser had signed a series of tax collection waiver agreements in 1956 and 1957 extending the period in which the assessments could be collected until December 31, 1959. I.R.C. § 6502(a). In May 1958, judgment was entered for the government in the amount of $8,642.25 (including interest), of which $8,511.90 remains unsatisfied.

In July 1959, after the property had been transferred to a corporation wholly owned by Kaiser and his wife, appellee Jefferson County Savings Bank acquired a first mortgage interest. The mortgage was immediately recorded. In January 1961, after a series of mesne conveyances, appellees Hodes and Berkowitz acquired a second mortgage interest, which mortgage was also recorded. On May 1, 1962, the property was conveyed to appellee Mid-City Park View Apartments, Inc., the present record holder. The government does not question the bona fides of any of these transactions.

During this period, the District Director had slept at his guns. In August 1959, an additional waiver agreement was signed with Kaiser extending the period of collection to December 31, 1961. But no further action was taken until February 1963 when the government's 1958 judgment was docketed with the Clerk of New York County.

Under New York law, a federal judgment must be docketed with the office of the clerk of a county before it obtains the status of a judgment lien on the judgment debtor's real property in that county. C.P.L.R. § 5018(b). Since Congress has made this statute applicable in determining the rights of a federal judgment creditor, 28 U.S.C. § 1962, the government's rights to the property in question arising out of its 1958 judgment are subordinate to those of appellees, who obtained their respective mortgage interests and title before the judgment was docketed. See C.P.L.R. § 5203(a). Therefore, in December 1964, the government instituted this action to foreclose against this property its assessment liens, notice of which had been properly filed in 1955.

Appellees contend that the assessment liens merged into the government's 1958 judgment; since the government is therefore relegated to its rights under the judgment, its interest is subordinate under New York law to the appellee's rights. Judge Metzner decided against the government on a narrower ground. He held that while the judgment, if docketed, would have extended the life of the liens, the government cannot prevail here because the appellees are entitled to the same protection against an undocketed judgment as against an undocketed lien. We disagree.

There is no specific time limitation on the life of an assessment lien; under I.R.C. § 6322,³ the lien, once valid, survives so long as the underlying liability for the tax is enforceable. Under I.R.C. § 6502(a), the tax assessed may be collected by levy or by a proceeding in court which is begun within six years of the assessment or prior to the expiration of a timely tax collection waiver agreement. This being so, a tax collection waiver agreement or the institution of a suit to enforce the lien or the tax liability extends the life of an assessment lien beyond the normal six-year period. See United States v. Ettelson, 159 F.2d 193 (7 Cir. 1947); United States v. Herman, 186 F.Supp. 98 (S.D.N.Y.1960); United States v. Diamond, 142 F.Supp. 441 (S.D.N.Y.1956). And a number of courts have held that the lien is also extended by a judgment against the taxpayer. See Investment & Sec. Co. v. United States, 140 F.2d 894 (9 Cir. 1944); United States v. Birns, 223 F.Supp. 94 (N.D.Ohio 1963); United States v. Saslavsky, 160 F.Supp. 883 (S.D.N.Y.1957).

From these cases and the statutory language, it seems clear that tax assessment liens, unlike most liens under state law, continue to exist independently of the suit or judgment which has extended their existence. See Plumb, Federal Tax Collection and Lien Problems, 13 Tax L.Rev. 247, 250-51 (1958). The assessment lien does not merge into the judgment, as would an attachment lien, for example; the judgment is merely one way in which the underlying tax liability remains enforceable, and therefore the judgment serves merely as a measuring rod for the life of the lien. Thus, in United States v. Birns, supra, the government had obtained a judgment and had docketed it as required under Ohio law. However, under Ohio law even a prior docketed judgment could not have gained priority over the particular mortgagee in question. Nevertheless, the court held that the government's assessment lien retained independent force when extended by the judgment; since the priority of an assessment lien is a matter of federal law, see United States v. Acri, 348 U.S. 211, 75 S.Ct. 239, 99 L.Ed. 264 (1954), the government prevailed.

Although permitting the government to foreclose its assessment liens against this property may lessen the Commissioner's incentive to docket federal judgments as required by 28 U.S.C. § 1962, we think that our decision is consistent with the intent of Congress. The purpose behind I.R.C. § 6323(a) (1), which requires the filing of a Notice of Lien, was to meet the harsh effect of cases holding that a secret tax lien was good against a subsequent bona fide purchaser. Compare United States v. Snyder, 149 U.S. 210, 13 S.Ct. 846, 37 L.Ed. 705 (1893). On the other hand, 28 U.S.C. § 1962, which requires the docketing of a federal judgment according to state law, merely conforms with the congressional policy that the execution of federal judgments shall be done according to state law. See Fed.R.Civ.Proc. 69(a). There is no indication that Congress intended through Section 1962 to disturb its statutory scheme for the effective collection of taxes, a scheme which on its face gives no indication that an assessment lien is to merge into the judgment obtained in a suit to collect the underlying assessment.⁴

In arriving at this interpretation of these statutes, we are not unmindful of the equities involved. The dissenting opinion of Judge Hays implies that our decision may create a trap for the unwary if a long-outstanding assessment lien is extended on the basis of an undocketed federal judgment. We disagree. We believe that the circumstances which flow from our result are not inequitable. In the first place, a contrary decision requiring the government to docket its judgment would not significantly ease the burdens on a title searcher. There is no requirement that a notice of tax collection waiver agreement or of the institution of an action to collect the assessment be filed. Therefore, one who discovers an assessment lien more than six years old cannot assume it has lapsed if no judgment has been docketed. In this case, for instance, the unfiled waiver agreements admittedly extended the period of collection, and hence the liens, four-to-six years beyond the normal six-year period.

More important, there is no question in this case of a purchaser receiving no notice of the government's possible rights. The Notice of Lien is filed alphabetically according to the taxpayer's name with the appropriate county official, cf. United States v. Herman, supra, and a proper title search will uncover any such liens outstanding as well as any docketed federal judgments. The Commissioner has statutory authority,...