Vuin v. Burton, 15371.
Decision Date | 21 February 1964 |
Docket Number | No. 15371.,15371. |
Citation | 327 F.2d 967 |
Parties | Walter VUIN, Plaintiff-Appellant, v. Melvin J. BURTON, Director of Internal Revenue for Cleveland, Ohio District, Defendant-Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
Frank E. Steel, Akron, Ohio (Hershey, Browne, Wilson, Steel, Cook & Wolfe, Christopher T. Cherpas, Cherpas, Manos & Syracopoulos, Akron, Ohio, on the brief), for appellant.
Timothy Dyk, Dept. of Justice, Washington, D. C. , for appellee.
Before MILLER and EDWARDS, Circuit Judges, and BOYD, District Judge.
Plaintiff-Appellant Walter Vuin sought a permanent injunction from a Federal District Judge in the Northern District of Ohio, Eastern Division, to restrain the District Director of Internal Revenue from enforcing two gambling tax assessments totaling $21,092.25. His complaint is that the assessments were based upon numbers slips seized in a police raid on Vuin's home conducted under a search warrant, which Vuin contends was illegally issued and served.
Appellant Vuin argues that the assessments were void because based on an illegal search and seizure and that he will suffer irreparable injury unless the District Court enjoins their enforcement.
The facts upon which Appellant relies on appeal to this Court are set out thus in his Bill of Complaint:
Appellant's brief and argument suggest in effect that these paragraphs contain well-pleaded facts, which if taken as true on a motion to dismiss, required the District Judge and now require us, to hold that the assessments are illegal and void and to enjoin their collection.
The U. S. Attorney filed a motion to dismiss the action without hearing on the merits, relying on a Federal statute which prohibits an action to enjoin the assessment and collection of taxes.
U. S. District Judge Ben C. Green entered an order dismissing the action. In a memorandum opinion he based dismissal upon the prohibition against such suits contained in 26 U.S.C.A. § 7421(a), pointed to appellant's statutory remedy of payment of the tax and suit for refund, and held that his Bill of Complaint did not set forth such exceptional circumstances as to warrant the Court's assuming equitable jurisdiction of the case.
As a general rule the assessment of a tax is presumptively correct and the burden of proof as to illegality is on the taxpayer. Commissioner v. Hansen, 360 U.S. 446, 468, 79 S.Ct. 1270, 3 L.Ed.2d 1360; Helvering v. Taylor, 293 U.S. 507, 515, 55 S.Ct. 287, 79 L.Ed. 623; Harp v. Commissioner, 263 F.2d 139, 141 (6th Cir. 1959).
Basically this appeal involves still another construction of § 7421(a) of the Internal Revenue Code of 1954:
"Except as provided in sections 6212(a) and (c), and 6213(a), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." 26 U.S.C.A. § 7421(a).
This provision has been recently construed by the United States Supreme Court in Enochs v. Williams Packing and Navigation Co., Inc., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292. In it, Chief Justice Warren speaking for a unanimous court, set forth the test to be applied in these cases in the following words:
370 U.S. at 7, 82 S.Ct. at 1129, 8 L.Ed.2d 292. (Emphasis added.)
This test is, of course, in addition to otherwise existing equity jurisdiction in the District Court.
This court likewise has recently dealt with this provision, Licavoli v. Nixon, 312 F.2d 200 (6th Cir. 1963), where we relied upon language of the United States Supreme Court quoted above and stated that more than mere inadequacy of remedy is required to avoid the statutory prohibition.
More recently the Second Circuit in Botta v. Scanlon, 314 F.2d 392 (2nd Cir. 1963), the Williams Packing case, held that the taxpayer must first meet the requirement of showing that the United States cannot under any circumstances prevail. If this is not shown, the District Court is without jurisdiction to consider any other aspect of the case.
In Williams Packing, Licavoli and Botta, injunctive relief was denied the taxpayer because he failed to set forth facts showing that the assessment was only "in the guise of a tax." Miller v....
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