United States v. White Bear Brewing Co.
Citation | 227 F.2d 359 |
Decision Date | 18 November 1955 |
Docket Number | No. 11431.,11431. |
Parties | The UNITED STATES of America, Plaintiff-Appellant, v. WHITE BEAR BREWING CO., Inc., and Chicago Title and Trust Company as Trustee, et al., Defendants-Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Robert Tieken, U. S. Atty., Chicago, Ill., H. Brian Holland, Asst. Atty. Gen., Joseph F. Goetten, U. S. Dept. of Justice, Ellis N. Slack, Hilbert P. Zarky, Stanley P. Wagman, Special Assts. to the Atty. Gen., for the United States.
William H. Avery, Jr., Kenneth F. Burgess, Chicago, Ill., Edward P. Saltiel, Chicago, Ill., for appellee. George Ragland, Jr., Walter J. Cummings, Jr., Henry A. Preston, Chicago, Ill., for White Bear Brewing Co., and Chicago Title and Trust Co., as Trustee, defendants-appellees, Sidley, Austin, Burgess & Smith, Chicago, Ill., of counsel.
Before DUFFY, Chief Judge, and FINNEGAN and LINDLEY, Circuit Judges.
Defendant White Bear Brewing Co., Inc., is the record title-holder of property which the government, as plaintiff, by its action, filed below, would have sold, and the proceeds distributed. Chicago Title and Trust Company is a co-defendant in its capacity under defendant's purchase-money mortgage in trust deed form.
Defendant filed a motion to dismiss the government's complaint, and as the district judge cogently summarized this aspect of the record: Both parties filed briefs. By his final decree, supported by a memorandum of opinion, the trial judge allowed fendants' motion to dismiss the complaint. That decree is now before us. No question of the taxpayer's solvency is involved.
Absent material issues of fact, we can present a sequential listing of events which will bring into sharp relief significance of certain timing:
According to the "Statement"2 (mentioned in the District Judge's memorandum) sponsored by the government, in its brief opposing defendants' motion to dismiss, notices were filed of liens for the assessments itemized in its complaint amounting to $16,217.46 and, it appears, another notice of lien, in the amount of $7,922.01 was filed on April 28, 1949. But after examining the government's complaint, filed below, we find this latter notice of lien unmentioned, while the total amount claimed, in that pleading, was $16,217.46 plus interest. However, a marginal note in the plaintiff's brief suggests an explanation:3
Mirrored against the backdrop of dates and facts, we have already shown, plaintiff sought the following relief below:4
"That all persons having lien upon or claiming any interest in the property or rights to property hereinabove described be required to submit their claims; that the merits of all claims to and liens upon the property be finally determined; that the defendants and all persons claiming under them or any of them subsequent to the commencement of this action be barred and foreclosed of all right, title and interest, or lien and claim to the property and all part thereof; that the lien of this plaintiff for its taxes assessed be established and enforced against property described in its complaint; that the property be ordered sold in accordance with the law and the practice of this Court and that the fund resulting from such sale be ordered distributed according to the findings of the Court, in accordance with the rights and interests of the parties defendant in this suit and the United States." (Italics added.)
Because there are several cases (See: Appendix I) which on first blush seem to dispose of this appeal, adversely to defendants, we think dissecting the two liens asserted, will be revealing.
Section 3670 of the Internal Revenue Code of 19395 creates the lien pressed by the government in this appeal:
"If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition...
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