*1 OF INTERNAL REVENUE COMMISSIONER SHAPIRO et ux. Argued 1975 Decided March 74-744. November

No. *2 White, Burger, J., Court, opinion delivered the which Brennan, Stewart, Marshall, Powell, J., JJ., joined. C. and Blackmun, Rehnquist, J., J., dissenting opinion, filed a in which joined, post, Stevens, J., p. part 634. took no in the consideration or decision of the case.

Acting Deputy Attorney Assistant General Baum ar- gued petitioner. the cause for On the brief were Attorney Solicitor Bork, General Assistant General Crampton, Stuart and Ernest Brown. A. Smith, J. respondents.

Nathan Lewin cause for argued the him With brief Herbert Miller, Jr., were J.

Martin D. Minsker.

Mr. opinion delivered the Justice White Court. presents

This case questions scope relating of Anti-Injunction Internal Revenue Code’s 26 Act, (a),1 U. S. C. 7421 in context summary § of a seizure taxpayer’s pursuant a assets jeopardy to a assessment. §§ 6861, 6213.

I Normally, may the Internal Revenue Service not by “assess” a tax or collect it, levying on or otherwise seizing taxpayer’s a taxpayer until assets, has had opportunity to exhaust his administrative an remedies, which opportunity include an to litigate liability his tax

1 (a) provides Title 26 U. S. C. 7421 in full: § “(a) Tax.

“Except (a) provided (c), 6212 as in sections and (a), and (a) (b) (1), purpose and restraining no suit for the the assess- any any by any ment or collection of tax shall be maintained in court person, person person against whether or not such is the whom such tax was assessed.”

fully in the Tax Court, 26 U. S. 6212, 6213;2 §§C. if the Internal Revenue does attempt Service to collect by tax levy or otherwise, before such exhaustion of in remedies violation of § collection is not pro- tected the Anti-Injunction Act may be restrained by a United States district court at the instance of the taxpayer. §§ 6213 (a), 7421 (a). The rule is otherwise when the proceeds Commissioner under § 6861 and finds that collection of a tax due and from owing a taxpayer will be “jeopardized delay” in In collection. such a case, the may Commissioner immediately assess the tax and, upon “notice and demand ... for payment thereof” followed by the taxpayer’s “failure or refusal to pay such

2Title 26 U. S. C. provides in part: § relevant “(a) general. In “If Secretary or his delegate determines that there is a de- ficiency respect any imposed tax by subtitles A or B chapter 42, he is authorized to send notice such deficiency to by certified mail or registered mail.”

Title 26 U. S. provides C. 6213 § part: relevant “(a) Time filing petition and restriction on assessment. 90 days, “Within days or 150 if the notice is person addressed to a outside the States of the Union and the Columbia, District of after notice deficiency authorized section 6212 (not is mailed counting Saturday, Sunday, or legal a holiday in the District of Columbia day), last the taxpayer may file petition with *4 the Tax Court for a of redetermination the deficiency. Except provided as otherwise in section 6861 no assessment a deficiency of respect in any of tax imposed by subtitle A or B or chapter 42 levy and no or proceeding in court its for collection made, shall be begun, prosecuted or until such notice has been mailed to the tax- payer, nor expiration until the 90-day of such or 150-day period, as the be, may nor, case if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Not- withstanding provisions the of section 7421 (a), making the of such assessment or the beginning of such proceeding levy or during the time prohibition such is in may force enjoined be by proceeding a in the proper court.” tax,” may immediately levy on taxpayer’s the assets. §§ 6331.3 When the Commissioner pro- follows this Anti-Injunction applies Act in full cedure, force and 3Title 26 provides U. S. C. 6331 in part: relevant § “(a) Authority Secretary of delegate. or any person any “If pay liable to neglects tax pay or to refuses days same within 10 after demand, notice and it be shall lawful for Secretary or his delegate (and to collect such tax such further sum as shall be expenses sufficient to cover the levy) by levy upon rights all property property (except to such property exempt as is 6334) under section belonging person to such or on which there is provided a lien in chapter this pay- for the ment may of such tax. Levy upon be made salary the accrued or wages any officer, of employee, official, or elected United States, Columbia, any District or agency instrumentality or of the United States or the of Columbia, District by serving a levy notice of (as employer (d)) defined in section officer, such employee, or elected If Secretary official. or his delegate makes finding collection tax is such in jeopardy, notice and demand payment for immediate of such tax may by be made Secretary delegate or his and, upon failure or pay refusal tax, such collection thereof levy shall be lawful regard without 10-day to the period provided in this section. “(b) sale property. Seizure and 'levy’ “The term as used in this title power includes the of dis- traint and by any seizure A levy means. only shall extend property possessed obligations existing at the time thereof. In any case which the Secretary or delegate may his levy upon property rights or to property, may he and sell such property seize rights property (whether personal, real or tangible or

intangible).” Title 26 U. S. provides C. 6861 § part: relevant “(a) Authority for Making. “If the Secretary or his delegate believes that the assessment or collection deficiency, of a defined section jeopar- bewill by delay,

dized shall, he notwithstanding provisions of section (a), immediately deficiency assess such (together with all inter- est, amounts, additional and additions to provided the tax *5 purpose

“no suit for the of or restraining assessment any by collection of any tax shall be court maintained person.” any (a). §

In 6, this found, the Commissioner on December case, that the imminent departure respondent of Samuel Shapiro (hereinafter Shapiro respondent) for Israel probable and the him departure with assets in his New York bank accounts safe-deposit boxes jeopardized the collection income taxes claimed to be due and owing him for by years 1970 and tax 1971. Accordingly, he respondent assessed income taxes against in the amount $92,726.41 for years the tax 1970 and 1971. On the same day, he filed against respondent liens and served levy notices of upon various banks in New York State in respondent which maintained accounts or had safe-deposit boxes. These notices of levy effectively froze the money in the $35,- totaling about accounts — 000—and the contents of safe-deposit boxes.

At that respondent time Shapiro was under final order of extradition to Israel, for trial on criminal fra”d issued charges, by the United States District Court the Southern District of New York, and was scheduled to leave for Israel on December 1973—three days later. That date had set been as a result of an agreement be- tween Shapiro and the State of pursuant Israel to which he had petition withdrawn a for writ of certiorari seeking by review this Court of the affirmance the extradition order of Appeals for the Circuit, Second law), and notice and demand shall be Secretary made or his delegate payment for the thereof. “(b) Deficiency Letters. “If jeopardy any assessment made respect before notice in of the tax to which jeopardy assessment relates has been mailed (a), under section 6212 Secretary then the delegate or his shall mail a notice under such days within subsection making after the the assessment.”

Shapiro Ferrandina, 478 F. 2d 894 and the (1973), State Israel had him agreed grant speedy a trial when he arrived Israel and to him $60,000 release on bail pending such trial.

Upon learning of the of levy, respondent notices ob- tained the consent postpone State of Israel to his extradition until date December 16, 1973; and then on December 13, 1973, he initiated the instant lawsuit. Claiming that he no taxes; owed that he could not liti- gate the issue with Internal Revenue Service while jail in Israel; jail that he would be in unless he Israel, could use the frozen $35,000 as bail and that money; the Internal Revenue deliberately Service had and in bad faith waited until December 1973, filing before its 6, levy notices of precisely in order place him in this predicament, respondent requested in his complaint an order his enjoining extradition until oppor- he had an tunity litigate question whether he owed the Internal any Revenue Service taxes in the or, alternative, an order directing the Internal Revenue Service to lift levy. notices of

Over the Government’s claim that the court lacked jurisdiction over the case reason of the Anti-Injunc- tion Act and because timing of an extradition is a matter within jurisdiction the exclusive of the Executive Branch, District granted a temporary restrain- ing order against extradition on December 13, set argument on the motion for preliminary injunction for December 1973, later postponed until December 21, 1973. Interrogatories were then served the Gov- ernment inter alia, into the inquiring, basis for the as- In sessments. partial, response to the inter- expedited, rogatories, the Government stated on December 19, 1973, that respondent yet was not entitled to know the basis for the assessments. Then on December 21,

1973, the Commissioner served counsel respondent with supplements to the responses to the interrogatories to which were appended notices of deficiency, see 26 U. S. §C. 6212. The notices of deficiency disclosed the 1970 assessment was based on unexplained cash bank deposits $18,000 and that the 1971 assess- ment was based on income in the amount $137,280 derived from respondent’s alleged activities as a dealer *7 in narcotics.4 On that date, the District Court dis- solved the temporary restraining order and granted the Commissioner’s motion to dismiss the complaint. The court concluded that the Anti-Injunction Act withdrew jurisdiction its to order the levies to be lifted, and that the timing of the validly extradition, ordered the United States District Court for the Southern District of New York under a treaty with Israel, was a matter within jurisdiction exclusive Department. State

On December 1973, 26, after respondent had filed a notice of appeal, the Court of Appeals for the District of Columbia Circuit stayed the extradition reso- pending lution of that appeal.5 The stay was lifted by the Court 4 The relevant part of the deficiency notice for year 1970 provided: “It is you determined that unreported realized taxable income from unexplained bank deposits at the 1st City National Bank in $18,000.00.” amount of App. 135. The part relevant of the deficiency notice for year 1971 id., at 136: provided, “It you determined that realized unreported taxable income in the $137,280.00 amount of for the taxable year ended Decem- 31, ber 1971 your from activities as a dealer in narcotics, computed as follows: “Gross income from hashish $381,680.00 sales.

“Less: 244,400.00 costs. “Net $137,280.00” Income. 5 January On 3, 1974, respondent, armed with his deficiency Appeals May February 1974, on 1974. On Appeals the Court of affirmed the District Court's hold ing jurisdiction it had no order over the extradition respondent days was extradited several thereafter.6 The Court with Dis Appeals, disagreed however, trict Court it no jurisdiction had to consider the claim for from relief the levies and remanded further proceedings. Shapiro Secretary State, 162 U. S. App. C. 2d 527 (1974). D. F. 391, 499

The of Appeals Court held that an unresolved fact issue on existed the question whether this case falls within the narrow exception to Anti-Injunction Act this Court’s decision in Enochs v. Williams formulated Co., Packing (1962).7 U. As S. the court under- notice, filed the Tax Court for a deficiency. redetermination of the (a). 26 U. S. C. §6213 6 The extradition issue is therefore longer no in this case. Appeals rejected, it, the record before authority Phillips on the v. Commissioner, (1931), 283 U. S. 589 respondent’s claim that the assessment hearing absent a violated *8 noted, Due Process however, Clause. It respondent that if could establish on remand that his prevent extradition would him from litigating effectively before Court, the Tax then one of the predicates Phillips for the decision would lacking. be The court noted, resolve, also but did not dispute factual as to whether the levy conformity was in with the Shapiro statute. alleged, had for the first appeal, time on that no notice given had been himto demand pay made himof the taxes at the time the levies were served. required Such notice and demand are 6861, 26 U. S. C. § compliance necessary with which is (a), under if the Anti- §6213 Injunction apply. Act is to The Commissioner claimed that he had deficiency mailed a Shapiro 6, notice to on December 1973. It is clear that a demand has now payment been made for the tax assessed the levies are compliance now in with deficiency 6213. A notice of was served Shapiro’s § on attorney in the 21, District Court on December 1973. The Internal Revenue Service, conceding that it could not be sure whether original deficiency notice of was mailed or after before levy notices of served, were served new levy notices of 15, October 11 and stood the Williams Packing the Anti-Injunction decision, Act does not deprive the District jurisdiction restrain collection of a if (1) the tax, taxpayer shows “ex traordinary circumstances causing irreparable harm” which he has no “adequate remedy law,” at (2) it is apparent under that, the most liberal view of the law “ and the facts, the United States ‘cannot establish its ” claim.’ 162 U. App. S. D. atC., 396, F. at 2d, 632. The court found Shapiro had satisfied the first test: the money frozen in his New York banks was to be used as bail money Israel, and without it Shapiro would be incarcerated. Accordingly, his rem edy at e., law—i. his ability later to contest the validity of the assessment in the Tax Court or in a suit for a refund —was inadequate. As for the second test, court concluded that the District Court should not have dismissed the complaint without further inquiry into the factual foundation for the jeopardy assessment and that further proceedings were necessary before finally determining whether upon viewing the law and the facts most favorably to the Government there was “no factual foundation” for the Government’s claim that Shapiro was a tax-delinquent narcotics dealer during 1971 and thus no basis for the assessment. Accordingly, court remanded in order to “allow the District Court... to develop a record” and to determine in light of it whether the asserted deficiency was “so arbitrary and excessive” as to be an exaction in the guise of a tax.9 at Id., F. 2d, at 535. 1974. This moots question both the whether the IRS mailed a notice of deficiency to Shapiro on December 1973, and whether preceded the notice the levies. There can *9 question no be at this

point, therefore, that in these respects the levies are in technical compliance provisions with the of 6861. § 8 This standard, considered the Court of Appeals to be con-

II The Government argues the order of Court Appeals was erroneous because it placed a burden on the Government to prove a factual basis for its assess- sistent with Enochs v. Williams Packing was based on cases decided by other Courts of Appeals, primarily Pizzarello v. States, United (CA2 F. 2d 1969), Lucia States, United 474 F. 2d 565 (CA5 1973) (en banc). 9 Subsequent to the time of the Court of Appeals’ order and prior argument of this case before Court, this things several have concededly occurred arguable relevance to this First, lawsuit. respondent Shapiro has been extradited, the State of Israel has reduced the amount of his bail and he has been able to meet it. Accordingly, he is not —as the Court Appeals assumed he would be—incarcerated a result of the fact put levies have the money in the New York beyond banks his reach. Second, the District interpreted the Court of Appeals’ order in this case require the Government to come proof forward with sufficient to establish a factual foundation for the tax assessment and to negative a finding that the assessment "entirely excessive, arbi trary, capricious, and without factual foundation.” The Govern ment then made an effort at compliance with the District Court’s order, consisting of the filing of an affidavit the revenue agent who investigated respondent’s income tax liabilities. The affidavit states that the basis for the assessments is as follows: “a. There was no record that Shapiro Samuel had filed an in- come tax return for 1970. “b. That Samuel Shapiro had filed an tax income return for 1971 reporting no tax liability upon $1,600 based adjusted gross income, consisting $2,600 miscellaneous income from private tutor- ing and net short-term losses from commodity $1,450 transactions of (limited $1,000 in computing adjusted gross income). “c. That deposits were credited to two accounts in the name of Samuel Shapiro at the First City National Bank, York, New Nos.: 04993564 and 05008773, in $18,000 amounts in $36,- 735 in 1971. “d. That . . . Shapiro Samuel paid in $3,000 excess of in currency purchase anof automobile. “e. That information available to the Internal Revenue Service

625 ment instead requiring taxpayer prove to that “under no circumstances could the Government ulti- mately prevail.” Enochs Packing v. Williams Co., early indicated that Shapiro $40,000 in paid 1973 Samuel over for a purchased $60,000. home for over “f. That supplied information to the Internal Revenue indi- Service cated that Shapiro Samuel smuggling had been into the United States substance, substantial illegal hashish, amounts of an every days six Israel, from presumably States, for resale within the United supported also Shapiro conclusion that Samuel dealing was hashish, during 1971. “g. That included in deposits the 1971 bank subpara- referred to in (c) above, graph money were transfers from an individual since selling hashish, convicted of who stated that the transfers were for supplied hashish Shapiro to him Samuel as follows: 19,1971. “April $2,000 “April 23,1971. 2,300 “May 6, 2,000 1971. “May 11, 1,500 1971. “June 1,500 1971. “August 18, 5,600 1971. “h. That information available to the Internal Revenue Service in- dicated practice trafficking known hashish was to deal in (kilograms), equal pounds; full kilos 2.2 during to 1971 the price $1,360 $1,980 $2,992 retail per of hashish was to pound, or $4,356 kilo; per and that the wholesale ap- cost to a dealer would proximate $2,350 per kilo; practice and that the common in hashish dealing payment parts was receive two first for cost and —the profit. the second for

"i. That on the basis of the information set in subparagraphs forth g. above, agent] revenue during h. concluded that [the Shapiro dealing week, Samuel was in at least per kilos of hashish profit $137,280, and that his taxable therefrom computed was follows:

“Selling price. $7,340 4,700 “Cost . “Weekly 2,640 profit. (52 profit weeks).$137,280

“1971 that since 7. The further S., argues U. at Government wholly prove and still has failed had Government plead specific establishing even facts that the *11 Appeals can under no circumstances Court prevail, the should affirmed initial dismissal have the District Court’s contrary and its decision to the should be reversed. Respondent argues the other hand that unless the to obligation Government has some disclose the factual assessments, discovery basis for its either in to response request exception or on direct order of the court, in Enochs v. Williams junction provided the Anti-In Act Co., Packing su-pra, is meaningless. The can never know, the Government tells him, what unless

“j. unexplained deposits $18,000 during That 1970 should be deemed to be taxable income.” hearing by 12, 1974,

At a held the District Court on November (which respondent submitted two affidavits had filed in the been Court) denying Tax that he was or ever had been a dealer in nar- Respondent’s cotics. affidavits further stated that his 1971 income Respondent tax return was correct. also submitted an affidavit of Laub, Switzerland, Rachel a resident of which stated that at re- request 1970, $50,000 spondent’s safekeeping she held him in for approximately gold in cash and 18 to 20 kilos of bars. That affidavit respondent’s request, further stated that at she transmitted the cash ($32,000 proceeds gold to him in and the of the sale bars $35,000) Finally, respectively. 1971 and the District tentatively must, Judge has ruled that if the court Government relief, deny injunctive ex- is to submit its informant camera granting Following the court. amination Court’s certiorari, (1975), petition for a writ of U. S. 923 Government’s proceedings place no further have taken below. proceedings the District Court on remand and the before are, course, just us at this time. events described not before

other Ap- proceedings occurred after the decision of the Court of These However, appear agree parties peals which review. we described, them be- and we mention these events have occurred question they proceedings of what must relevant cause are following eventually the District Court our decision be conducted case. in this

basis for the assessment is and thus can never show that certainly Government will prevail. be unable to We agree Shapiro. with

In Enochs v. Williams Packing Co., the Court supra, held that injunction an bemay obtained against the col- lection of any (1) tax if it is “clear that under no cir- cumstances could the Government ultimately prevail” (2) “equity jurisdiction” otherwise e., i. exists, taxpayer shows that he would suffer irrepa- otherwise rable injury. 370 U. atS., 7. The Court also said that question “the of whether the Government has a chance of ultimately prevailing to be determined on the basis of the information available to it at the time of the suit,” ibid. The Government’s claim that *12 Appeals placed on it burden justifying its as- sessment and thereby erroneously applied the Williams Packing rule is wrong. Williams Packing did not hold the taxpayer’s burden of persuading the District Court that the Government will under no circumstances prevail must be accomplished any without disclosure of by information the Government. It says instead that question will be resolved basis of the informa- tion available to the Government at the time the suit. Since it is absolutely impossible to determine what infor- mation is available to the Government at the time of the suit, unless Government discloses such information the District pursuant to appropriate procedures, it is obvious that Court Williams Packing intended some by disclosure the Government. Although the Gov- ernment casts its argument in terms of “burden of proof,” Appeals Court of did not place any technical burden of producing evidence on the Government and it would appear to matter little whether the Government discloses such information because it is said to have the burden of producing evidence on question or whether it discloses such evidence responding to a discovery motion made or interrogatories served the taxpayer— in which case the burden of producing evidence may be said to have rested with taxpayer. Thus the Court of Appeals cannot be said to have erred in declining to specify precise manner in which the relevant facts would be revealed on remand. In either under event, Williams Packing the facts are relevant those the Gov- ernment’s possession they must somehow be obtain- able from the Government.10

The Government argues, however, that unless the tax- payer required is plead specific facts if which, true, would establish that the Government cannot ultimately prevail, then the Anti-Injunction Act is eviscerated. Any taxpayer can allege in conclusory fashion that he owes no tax and, therefore, under the Court of Appeals’ any taxpayer decision, may in effect force the Govern- ment to justify its assessment in a United States District thereby interfering with a “collateral objective” Court — of the Act, Enochs v. Williams Packing Co., supra, at 7-8, e., protect i. the collector from tax litigation outside of the statutory provided scheme by Congress. As the Government’s argument itself implicitly con- cedes, the primary purpose of Act is not inter- fered with, since the collection of taxes will not be re- strained unless the District Court persuaded from the evidence eventually adduced that the Government will *13 under no circumstances prevail. We do not understand the Court of Appeals to departed have from this stand- 10We believe that it is consistent with Packing Williams place to of producing burden evidence with the taxpayer, and require, to if the insists, Government that facts its sole possession be ob tained through discovery. However, nothing say we here should prevent the Government voluntarily from and immediately disclosing the basis for its assessment, which, if sufficient, would terminate dis covery proceedings justify judgment for the Government. to have removed Packing, or in Williams

ard enunciated that de- which burden, ultimate taxpayer from the District persuading of him, to appears place cision “collateral Moreover, met. it has been that con- than was more no Act is undercut of the objective” himself Packing. templated Williams his establishing that facts prove plead must still inadequate suit is refund or in a remedy in the Tax Court by an errone- might be caused any injury that repair to liability. tax asserted or collection of an ous assessment litigate required is not then, Even Government statutory scheme liability outside fully taxpayer’s litigate simply required It is by Congress. provided in fact. basis has a its assessment question whether correctly Appeals of the Court that Our conclusion re- Court and the District judgment reversed the by the fact is fortified proceedings manded further the Government permit toAct construing that allegation good-faith on the mere property hold seize and prob- constitutional serious unpaid tax would raise of an it is asserted one, this where such as cases, lems is jeopardy to a assessment pursuant seizure assets recently and This Court has injury. irreparable causing injury irreparable least where at repeatedly that, held pending final property deprivation from may result Process the Due of the adjudication rights of the parties, property taken party whose requires Clause predeprivation kind for some opportunity be an given hearing at which some show- prompt post-deprivation must be validity deprivation of the probable ing respondent’s prop- seized Here the Government made.11 11 Goldberg Kelly, (1970) (temporary U. S. v. very may recipient payments deprive of “the of welfare deprivation Family Finance waits”); Sniadach he to live while means which (1969) (temporary deprivation Corp., 341-342 395 U. S. *14 630

erty and contends that it absolutely has obligation no prove that any the seizure has basis fact no matter how severe or irreparable injury taxpayer no matter how inadequate his remedy eventual in the Tax Court.12 in Phillips

It is true Commissioner, v. 283 S. U. wages may wage-earning “drive a family to the wall”); North Georgia Finishing, Di-Chem, Inc. Inc., v. 601, (1975) 419 U. S. 608 (“probability of irreparable injury” preseizure sufficient to warrant probable-validity hearing); Pugh, see also Gerstein v. 420 103 U. S. (1975) (incarceration preceded by probable-cause must be finding or promptly by probable-cause followed hearing); Regional cf. Rail Reorganization Cases, 102, Act (1974) (no 419 U. probable- S. 156 hearing required cause complainant where eventually will be “made any whole” inadequacy in compensation property). for confiscated that, We have often resolving noted a claimed violation procedural process, due weighing a careful respective interests required, Lopez, Goss v. 565, (1975); 419 U. S. and we have noted that the Government’s collecting interest the revenues is an important one, Shevin, Fuentes v. 407 U. (1972). S. This interest is clearly justify sufficient to taxpayer’s seizure of a assets preseizure hearing, without a Shevin, supra, Fuentes v. and to re any subject move need to the Commissioner to burden an inquiry into the basis for his assessment allegations absent factual irreparable injury taxpayer. Phillips Commissioner, (1931). 283 U. However, S. 595-597 very it is doubtful the need to collect the revenues is justify a sufficient reason to causing irreparable seizure injury prompt post-seizure without a inquiry any kind into the Commissioner’s basis for his claim. taxpayer The has right no proceeding start a before the Tax days following Court for 60 jeopardy a may seizure: the IRS under days the statute wait 60 deficiency before it issues the which notice gives his “ticket to the Tax Court.” 26 U. S. C. 6861. § quickly record does not indicate how hearing on the merits can be Preliminary obtained there. relief is not there available. Nothing today, course, prevent we hold would the Government providing from administrative or an other forum outside the Art. judicial system Ill preliminary inquiry for whatever is to made be jeopardy levy. as to the basis for a assessment *15 constitutional against sustained this Court (1931), for statutory by Congress created the scheme

challenge both disputes the in so litigation doing of tax referred provisions to the the Anti-In- jeopardy assessment junction id., Phillips at 596 n. 6. the case However, Act, jeopardy itself did not involve a and the tax- assessment payer’s assets not could have been taken or frozen in that case until he had either his right to, waived had, adjudication a full and liability final of his the tax before (then Tax Court the Board of Appeals). Tax The tax- payer’s claim in simply statutory that case was that a permit scheme which would the tax to be assessed and prior any judicial collected of his determination liabil- ity by way of refund a suit or review Board of the — Appeals’ Tax decision—was unconstitutional.13 Thus, Phillips insofar as may be said to have the con- sustained stitutionality Anti-Injunction applied the as to a Act, jeopardy assessment and consequent levy on taxpayer’s a assets without prompt opportunity for final resolution question of his liability by the Tax it did Court, only so by way of dicta. The dicta carefully were ex- pressed. The Court said:

“Where, here, adequate opportunity is afforded judicial a later legal determination rights, for summary proceedings to prompt performance secure of pecuniary obligations to the government have consistently been sustained. only

“Where property rights are involved, mere postponement of judicial enquiry is not a denial taxpayer challenged also unsuccessfully provision re quiring a appeals give court of deference to a fact determination by the Appeals Board of Tax on review of the Board’s decision. process, of due opportunity given the ulti- if judicial mate determination the liability is ade- quate. . . at 596-597. Id., (Emphasis supplied.)

Accordingly, neither holding nor the dicta Phillips support proposition may tax collector con-' stitutionally taxpayer’s seize a assets without showing some basis for the seizure under circumstances which injure seizure will in way that cannot be adequately remedied a Tax Court judgment his *16 favor. Instead it appear would to entirely be consistent with our more recent holdings.

In any event we are satisfied that under the exception Anti-Injunction to the Act described in the Williams Packing case this may case be re- by solved reference to that Act alone. At the time the District Court dismissed the the Government complaint, had done little more than respondent assert that owed taxes in an amount greater than the value of the prop- erty levied —it had alleged respondent that had made an unexplained deposit bank of $18,000 in 1970 in a and, wholly conclusory fashion, that he had received $137,- 280 in income from selling hashish.14 Before the tax- payer had an opportunity to inquire into the factual basis for this conclusory it was allegation, possible not to tell whether the any Government had chance of ulti- mately prevailing. the Accordingly, Court of Appeals properly concluded the Anti-Injunction that Act did not require taxpayer’s dismissal complaint. 14We do not decide whether allegation $18,000 of an unex

plained deposit bank is insufficient to establish income in that Packing purposes of the Williams amount —for year test —for the levies, being greatly 1970. The in excess of the tax due for 1970 any event, may not be sustained unless allegations respect with respondent’s liability to tax 1971 are sufficient.

633 required that the standard we are satisfied Moreover, to Act is at least as favorable by Anti-Injunction Constitution; and required as that by the District applied to be that the standard by the resolution not be affected will therefore may defeat issue. The Government constitutional no basis its assessment has taxpayer that claim Anti-Injunc- applicable the therefore render fact —and testimony cross- oral tion Act—without resort they so long sufficient examination. Affidavits are Gov- appears from which it disclose basic facts not invari- Constitution does may prevail. ernment Pugh, v. ably require Gerstein U. S. more, Eldridge, 424 (1975); (1976), Mathews U. S. v. it collection of the we would not hold that does where revenues is involved. if

Finally, apparent it the facts do not even seems Georgia North Inc. “probable cause,” Finishing, disclose Di-Chem, Inc., (1975); Gerstein v. 419 U. S. Pugh, supra, support assessment, the Government certainly prevail at trial. Thus the would be unable Packing appli- is consistent with the Williams standard *17 standard. cable constitutional preliminary out that issue would point We also Irreparable on remand. appear require resolution properly by quite found the Court injury was, course, At time of it Appeals. decision, that court’s respondent by been appeared Shapiro deprived that had money post needed to the levies bail in Israel and However, it thereby appear would avoid incarceration. Appeals’ for the finding irrep- that the basis Court injury disappeared. Thus, has since the District arable on remand will be to preliminary task determine Court’s if and, respondent this is so whether whether can so, establish some other sort of irreparable injury flowing from the levies.15 judgment Appeals Court of is

Affirmed. Me. Justice Stevens took part no consideration or decision of this case. Blackmun, Justice with whom Mr. Justice

Mr. Rehnquist joins, dissenting.

I thought would have that when the Commissioner of Internal Revenue, on 21, 1973, provided December re- spondent Samuel Shapiro with supplements to the re- sponses to the at that interrogatories, if not time, before, surely he satisfied and met all that required was to bring the Anti-Injunction 26 U. C. Act, § S. (a), principle of Enochs Packing v. Williams Co., U. S. full (1962), into application. effective It would follow that the District Court’s dismissal of the com- plaint point at that was entirely proper and should have been affirmed.

Given, however, the result very recently reached in Laing States, v. United 423 U. 161 (1976), S. the decision today, shored up by what seem to me to be 15We note it that has years now been over respondent two since petition filed his before Court, the Tax and so far as we in are formed, there been has no final determination that may court. It be that for some it reason has been impossible despite respond — ent’s best efforts —to obtain a decision the Tax Court. How ever, it possible is also vigorously has not sought such a determination, and has chosen instead to devote of his most energies litigating If, remand, federal courts. the District Court concludes that remedy absence of a at law at this time respondent’s due to pursue failure to remedy, equity then will not intervene and complaint should be dismissed. The in adequacy legal remedy of his would then be due to his own choice *18 not pursue to it.

635 ante, 11, is not inapposite cited, 629-630, n. cases at I the Court unexpected. am from certain that far I even to correct, confused Court’s failure and am Simon, (1974), Bob University Jones cite v. U. S. Inc., United,” and 416 U. S. Commissioner v. “Americans Com heavily upon two (1974), cases relied I missioner I and, think, significance. here of some only Laing decision, that, present observe with and the the Court now the road long way has a down traveled Act, down Anti-Injunction emasculation of the of the companion pathway blunting leads to the Mr. requirements Packing and, now, strict of Williams Phil opinion Justice Brandeis’ for a unanimous Court Commissioner, The Court lips (1931). 283 U. S. response has taken this I a Laing-Shapiro tack, suspect, as re to what it with deems to be administrative excesses spect to or suspected operatives are, narcotics who also be will be, taxpayers. prove should Whether all this reve stultifying to the embarrassing collection I not nues in a more do temperate time, untroubled come to up Congress know. will Perhaps, point, the rescue. ante, demonstrates, of 624-626, Court, at n. unsatisfactory

course, present case is in a most so posture It a case for review here. is unfortunate that so posed pronouncement occasions of new far and, law. regressive tax collection efforts concerned, are Appeals. I judgment of the Court would reverse the