649 F.2d 837 | Ct. Cl. | 1981
Lead Opinion
delivered the opinion of the court:
This case is before the court on defendant’s motion for summary judgment under Rule 101. We must decide whether a levy against a taxpayer’s property to collect federal income taxes may be contested in the Court of Claims by a third party who claims the property as his. If suit in this court is proper, we must then decide the proper period of limitation for such a suit. After considering the written and oral submissions of the parties, we conclude that this case is one within our jurisdiction under the Tucker Act, 28 U.S.C. § 1491 (1976),
The facts of this controversy are simple and not in dispute. Plaintiff Gordon is a Jamaican citizen and the spiritual leader of the Zion Coptic Church. In 1978, Gordon was arrested in Florida on state drug charges. He deposited $500,000 with the Accredited Surety and Casualty Company (Accredited) to obtain a pre-trial release bond. Thereafter, in March 1978, the Internal Revenue Service (IRS) levied on all property in the possession of Accredited belonging to the Zion Coptic Church or certain nominees, including Gordon. The levy was made to collect an asserted tax deficiency reflecting the Church’s unreported drug traffic income. See 26 U.S.C. (Internal Revenue Code of 1954, hereafter I.R.C.) § 6851; I.R.C. § 6861; I.R.C. § 6331. Pursuant to that levy, the $500,000 Gordon deposited was
Subject Matter Jurisdiction
Gordon alleges jurisdiction in this court under the Tucker Act in that his claim is founded on a contract implied in fact to return moneys wrongfully paid to defendant. See Kirkendall v. United States, 90 Ct. Cl. 606, 613-614, 31 F. Supp. 766, 769-770 (1940). See also Bull v. United States, 295 U. S. 247, 261-262 (1935); United States v. State Bank, 96 U. S. 30, 35 (1877). Alternatively, Gordon alleges Tucker Act jurisdiction because his claim is one based on the just compensation clause of the Fifth Amendment.
The proper inquiry, of course, is not whether the Tax Lien Act expresses an affirmative congressional intent to permit recourse under the Tucker Act. Rather, it is whether Congress withdrew Tucker Act jurisdiction over such claims when the Tax Lien Act was passed. See Regional Rail Reorganization Act Cases, 419 U. S. 102, 126 (1974); Hatzlachh Supply Co. v. United States, 444 U. S. 460, 463 (1980). See also Brown v. General Services Administration, 425 U. S. 820, 824-825, 834 (1976), and cases cited; Matson Navigation Co. v. United States, 284 U. S. 352, 356-357 (1932). Compare Brown, supra (the legislative history and structure of 42 U.S.C. § 2000e-16 indicate Congress intended amendment to Title VII to be the exclusive remedy for federal discrimination in employment) with Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 459 (1975) (Title VII remedies for private discrimination do not supplant remedies under 42 U.S.C. § 1981). We have applied similar notions in a variety of contexts. See, e.g., Fiorentino v. United States, 221 Ct. Cl. 545, 555, 607 F. 2d 963, 969-970 (1979), cert. denied, 444 U. S. 1083 (1980) (Tucker Act jurisdiction of pay claim based on adverse file items withdrawn by Privacy Act of 1974, 5 U.S.C. § 552(a)); Whitecliff, Inc. v. United States, 210 Ct. Cl. 53, 57 nn.4 & 5, 58 & n.8, 536 F. 2d 347, 350 nn.4 & 5, 351 & n.8 (1976), cert. denied, 430 U. S. 969 (1977) (Tucker Act jurisdiction over post-1972 Medicare provider claims withdrawn by 42 U.S.C. § 1395oo(f)); Butz Engineering Corp. v. United States, 204 Ct. Cl. 561, 566-577, 499 F. 2d 619, 621-628 (1974) (Tucker Act jurisdiction over claims against Postal Service continues
Defendant concedes, as it must, that nowhere in the Tax Lien Act or its legislative history is there an express revocation of this court’s Tucker Act jurisdiction to hear third-party levy actions.
Instead, defendant argues that because neither the statute nor the accompanying committee reports mention
The passage of the Tax Lien Act culminated an extensive effort by the American Bar Association to remedy problems involved in collecting delinquent federal taxes. The ABA had first approved the Final Report of its Committee on Federal Tax Liens in 1959. The report
The ABA report included a recommendation for a new Code provision, section 7431, allowing third-party levy contests in the district courts. The explanation for proposed section 7431 indicated that while decisional law generally allowed third parties to contest levies in the district courts,
Present decisions also permit one whose money is wrongly seized for another’s taxes to sue the United States for its recovery, but the suit must be in the Court of Claims if the amount exceeds $10,000 (although there are also decisions permitting such suit to be brought in the district court, without jurisdictional limit, if the Director is the nominal defendant). * * * [ABA Final Report, Legislative History, supra at 168.]
Thus, the ABA report indicated the focus of proposed section 7431 was to clarify uncertainties in the relief a district court might provide. The report also demonstrates that those who drafted proposed section 7431 were aware a third-party levy contest could be maintained in the Court of Claims. The drafters of proposed section 7431 apparently perceived no inconsistency between continued jurisdiction in this court and that under the proposal, for although a provision was included detailing the effect of proposed section 7431 on other existing actions, the drafters did not include a limitation on actions in the Court of Claims. See ABA Final Report, § 7431(f), Legislative History, supra at 204.
Using the ABA submissions as a guideline,
Defendant does not dispute the ABA’s role in the enactment of I.R.C. § 7426, nor does it dispute the specific reference in the ABA submissions to this court’s jurisdiction. Instead, defendant urges that despite the explicit reference to the Court of Claims, Congress was simply unaware of this court’s jurisdiction. In support of its contention, defendant relies on portions of the committee reports which it says demonstrate the alleged oversight. Those excerpts
Nor do we otherwise discern an intent for I.R.C. § 7426’s exclusivity. While I.R.C. § 7426 does provide a range of remedies, it lacks the "careful blend of administrative and judicial enforcement powers” the Supreme Court underscored in Brown v. General Services Administration, supra. Unlike the detailed provisions of 42 U.S.C. § 2000e-16 requiring prior administrative action, there are no mandatory preliminaries for an I.R.C. § 7426 action which could be circumvented by ingenious plaintiffs arguing alternate
Indeed, although the matter is hardly clear, we think a contrary inference proper from the clear evolution of proposed section 7431 into I.R.C. § 7426.
Applicable Period of Limitation
Gordon asserts that third-party levy contests brought under the Tucker Act are governed by the 6-year period of limitation established by 28 U.S.C. § 2501.
These concerns are equally applicable to levy contests in this court. Accordingly, we construe I.R.C. § 6532(c) to implicitly require levy contests under the Tucker Act to be brought within 9 months of levy. Gordon’s action, brought more than 16 months after the levy, would appear barred.
To avoid operation of the limitation statute, Gordon asserts that the I.R.C. § 6532(c) period is unconstitutional in that the period is impermissibly short and runs without notice to potential litigants. See I.R.C. §§ 6532(c)(1) and 6331(a).
Normally, Congress is free to establish periods of limitation for special types of actions as it sees fit. United States v. A. S. Kreider Co., 313 U. S. 443, 447, 448 n.3 (1941). In seeking a refund of taxes, for example, a taxpayer must ascribe to the period of limitation established by I.R.C. §§ 6511(a) and 6532(a) rather than the general 6-year period of 28 U.S.C. §§ 2501 and 2401. E.g., Fletcher v. United States, 226 Ct. Cl. 560 (1981). The question, of course, is whether I.R.C. § 6532(c) is constitutional and therefore within the Kreider rule. Apparently, a number of cases have already concluded or assumed that the 9-month period is permissible, even though there are no requirements for notice and even though the period begins on the date of levy. E.g., United Sand & Gravel Contractors, supra note 23; Omnibus Financial Corp. v. United States, 566 F. 2d 1097, 1102-1103 (9th Cir. 1977); Dieckmann v. United States, 550 F. 2d 622, 623-624 (10th Cir. 1977); Corwin Consultants, Inc. v. Interpublic Group of Companies, Inc., 512 F. 2d 605, 611 (2d
We assume, arguendo, that Gordon’s petition states a claim under the just compensation clause.
Plaintiffs further contentions require only brief mention. Plaintiffs status as an alien will not toll the statute of limitation. See, e.g., Japanese War Notes Claimants Association v. United States, 178 Ct. Cl. 630, 636, 373 F. 2d 356, 360, cert. denied, 389 U. S. 971 (1967); Compania Maritima v. United States, 136 Ct. Cl. 697, 705-707, 145 F. Supp. 935, 940 (1956). The statute is not tolled merely because Gordon was unaware of his claim. The claim was discoverable and the Government made no attempt to obscure it. Spevack v. United States, 182 Ct. Cl. 884, 889-890, 390 F. 2d 977, 981 (1968); Japanese War Notes Claimants, supra at 634, 373 F. 2d at 358-359. Nor is the statute tolled by plaintiffs incarceration. O’Callahan v. United States, 196 Ct. Cl. 556, 563, 451 F. 2d 1390, 1393 (1971); Grisham v. United States, 183 Ct. Cl. 657, 664, 392 F. 2d 980, 984, cert. denied, 393 U. S. 843 (1968). Plaintiffs further contentions are equally without merit. This claim is time barred.
Accordingly, defendant’s motion for summary judgment is granted. The petition is dismissed.
In relevant part, 28 U.S.C. § 1491 provides:
"The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.’ *
Gordon’s related allegation of Tucker Act jurisdiction under the due process clause must fail. That clause does not mandate the federal government pay money damages, as United States v. Testan, 424 U. S. 392, 400 (1976), requires. Vlahakis v. United States, 215 Ct. Cl. 1018, 1019 (1978); Walton v. United States, 213 Ct. Cl. 755, 757(1977).
I.R.C. § 7426 provides in pertinent part:
"(a) Actions permitted.—
"(1) Wrongful levy. — If a levy has been made on property or property has been sold pursuant to a levy, any person (other than the person against whom is assessed the tax out of which such levy arose) who claims an interest in or lien on such property and that such property was wrongfully levied upon may bring a civil action against the United States in a district court of the United States. Such action may be brought without regard to whether such property has been surrendered to or sold by the Secretary or his delegate.
"(b) Adjudication. — The district court shall have jurisdiction to grant only such ol* the following forms of relief as may be appropriate in the circumstances:
"(1) Injunction. — If a levy or sale would irreparably injure rights in property which the court determines to be superior to rights of the United States in such property, the court may grant an injunction to prohibit the enforcement of such levy or to prohibit such sale.
"(2) Recovery of property. — If the court determines that such property has been wrongfully levied upon, the court may—
"(A) order the return of specific property if the United States is in possession of such property;
"(B) grant a judgment for the amount of money levied upon; or
"(C) grant a judgment for an amount not exceeding the amount received by the United States from the sale of such property.”
The 1940 Kirkendall decision has been cited with approval in several cases. E.g., Tucker v. United States, 95 Ct. Cl. 415, 42 F. Supp. 292 (1942); J. C. Pitman and Sons, Inc. v. United States, 161 Ct. Cl. 701, 317 F. 2d 366 (1963); Ralston Steel Corp. v. United States, 169 Ct. Cl. 119, 340 F. 2d 663, cert. denied, 381 U. S. 950 (1965); Economy Plumbing and Heating Co. v. United States, 200 Ct. Cl. 31, 470 F. 2d 585 (1972); Fidelity and Cas. Co. of N. Y. v. United States, 203 Ct. Cl. 486, 490 F. 2d 960 (1974); Collins v. United States, 209 Ct. Cl. 413, 532 F. 2d 1344 (1976); Kingsbury v. United States, 215 Ct. Cl. 136, 563 F. 2d 1019 (1977). See First Nat'l Bank of Emlenton, Pa. v. United States, 265 F. 2d 297, 300 (3d Cir. 1959). Of these, only Collins and Kingsbury involved tax years after I.R.C. § 7426 became effective. Collins assumed without discussion that Tucker Act jurisdiction continued. In Kingsbury, we adopted by per curiam opinion a trial judge’s report. That report had suggested in dicta that our jurisdiction of third-party levy contests continued after the Tax Lien Act. Although we reach a conclusion similar to that in Kingsbury, we do so from the legislative history and structure of I.R.C. § 7426 rather than by application of the Kingsbury decision.
See 28 U.S.C. §§ 1491, 1501, 1502, and 1503.
See 28 U.S.C. § 1346(b).
Compare. e.g., I.R.C. §§ 6511(a), 6532(a), and 7422(a), which together establish mandatory procedures in refund suits, with I.R.C. § 7428, which allows, but does not require, a declaratory judgment action as to charitable status during pendency of IRS proceedings. Charities not electing I.R.C. § 7428 actions may contest eventual deficiencies in the normal manner.
Indeed, it might even be argued based solely on 28 U.S.C. § 1346(e) that this court and the district courts have concurrent jurisdiction over I.R.C. § 7426 actions. Gordon does not make this argument, no doubt based on I.R.C. § 7426(a) and its legislative history, e.g., H. R. Rep. No. 1884, 89th Cong., 2d Sess. 28, reprinted in 1966-2 C.B. 815, 834; S. Rep. No. 1708, 89th Cong., 2d Sess. 30, reprinted in 1966-2 C.B. 876, 897.
The ABA Final Report was reprinted in full as a portion of the Tax Lien Act’s legislative history by the Ways and Means staff. See Staff of the Committee on Ways and Means, 89th Cong., 2d Sess., Legislative History of the Federal Tax Lien Act of 1966, 118-256 (1966), For convenience, subsequent references to the ABA Final Report are to the legislative history volume, as are citations to other materials not readily obtainable.
ABA Final Report, Legislative History, supra at 168. See also In Re Fassett, 142 U.S. 479, 485-486 (1892); Seattle Ass'n of Credit Men v. United States, 240 F. 2d 906, 909 (9th Cir. 1957); Stuart v. Chinese Chamber of Commerce of Phoenix, 168 F. 2d 709, 712 (9th Cir. 1948); Tomlinson v. Smith, 128 F, 2d 808, 811 (7th Cir. 1942); Rothensies v. Ullman, 110 F. 2d 590, 592 (3d Cir. 1940); Long v. Rasmussen, 281 F. 236, 238 (D.C. Mont. 1922).
ABA Final Report, Legislative History, supra.
Id. See also Phillips v. United States, 346 F. 2d 999, 1000 (2d Cir. 1965); First Nat'l Bank of Emlenton, supra note 4; Chinese Chamber of Commerce of Phoenix, supra note 10; Tomlinson, supra note 10; Ullman, supra note 10.
ABA Final Report, Legislative History, supra.
See Statement of Chairman Mills at Hearings on H. R. 11256, March 2, 1966, reprinted in Legislative History, supra at 45; Press release of February 11, 1966, announcing hearings on H. R. 11256, reprinted id.; Press release of September 24, 1965, announcing introduction of H. R. 11256, reprinted id. at 35.
A virtually identical bill, H. R. 12545, was introduced unsuccessfully in the Eighty-eighth Congress by Chairman Mills.
Chairman Mills highlighted the evolution of the Tax Lien Act (then H. R. 11256) on the floor of the Houser
"For over 8 years now, the American Bar Association, through a special committee composed of representatives of four of its sections, has worked with representatives of the Treasury Department and committee staff to revise the Internal Revenue Code’s lien provisions with a view to meeting the problems I have mentioned, and also to improving the ability of the Federal tax liens to fulfill their original function of assisting in the collection of revenues.
"Although there were many members of the American Bar Association who participated in these discussions and this work, I would especially like to mention the name of the one who acted as chairman of that group, Mr. Laurens Williams, who is a tax attorney here in the city of Washington, and who formerly served in the Treasury Department as the senior tax lawyer. He worked with Treasury people, his own committee, and the staffs of our own committees. I do not know how many months, how many hours, how many days were spent in the development of this program, but those who worked on this certainly have rendered a great service in improving the tax laws.” [112 Cong. Rec. 22224 (1966).]
See also H. R. Rep. No. 1884, supra note 8 at 2, reprinted in 1966-2 C. B. at 815; S. Rep. No. 1708, supra note 8 at 2, reprinted in 1966-2 C. B. at 876.
For example,
"| p]resent law is quite limited in the extent to which it takes into account the rights of third parties in the procedures set out in the tax laws for the collection of taxes from a taxpayer. Under present law, for example, the United States cannot be sued by third persons where its collection activities interfere with their property rights. This*336 includes cases where the Government wrongfully levies on one person’s properly in attempting to collect from a taxpayer. However, some courts allow suits to be brought against district directors of Internal Revenue where this occurs. Technically, these suits are not against the Government, but, in fact, the Government defends them and pays all costs, so that the effect is practically the same as if these suits were brought against the United States.” [H. R. Rep. No. 1884, supra note 8 at 27, reprinted, in 1966-2 C. B. at 834; S. Rep. No. 1708, supra note 8 at 29, reprinted in 1966-2 C. B. at 896. We decline, however, to adopt defendant’s view of this segment and instead read the legislative history as a whole.
See cases collected at n.12, supra.
Brown v. General Services Administration, supra, is therefore distinguishable. In Brown, the legislative history was clear that Congress wished to resolve uncertainty in existing law over remedies for discrimination in public employment. From that factual predicate and the overall structure of the remedy, the Court inferred exclusivity for the 42 U.S.C. § 2000e-16 remedy. Here defendant would have us presume this factual predicate from uncertain legislative history. This we decline to do. Brown is also distinguishable, as the text discusses, infra, in that the 42 U.S.C. § 2000e-16 remedy is a complete remedy with detailed prerequisites unlike I.R.C. § 7426.
See, e.g., United States v. Jones, 131 U. S. 1, 18 (1889).
Indeed, depending on the theory argued in this court, the district court’s power to award interest under I.R.C. § 7426(g)(1) might provide a powerful incentive to bring an action for money damages in a district court rather than in the Court of Claims. See 28 U.S.C. § 2516.
See nn. 13-15 and accompanying text, supra. Even if we did not discern this "clear evolution,” the hearing testimony and submission would still be of clear relevance in determining the scope of I.R.C. § 7426. See, e.g., Hatzlachh Supply Co., supra. 444 U. S. at 463 & n.4; cf. Constant v. United States, 223 Ct. Cl. 148, 156, 617 F. 2d 239, 244 (1980) (committee hearings demonstrate that only non-speculative damages are recoverable under 35 U.S.C. § 183).
recognize that at least three other federal appellate courts have spoken of the exclusiveness of the I.R.C. § 7426 remedy. United Sand & Gravel Contractors, Inc. v. United States, 624 F. 2d 733, 738-739 (5th Cir. 1980); World Marketing, Ltd. v. Hallam, 608 F. 2d 392, 394 (9th Cir. 1979); Crow v. Wyoming Timber Products Co., 424 F. 2d 93, 96 (10th Cir. 1970). Whatever else may be said of the parallel construction of Tucker Act jurisdiction between this court and the district courts, see Saffron v. Department of the Navy, 561 F. 2d 938, 944 & n.48 (D.C. Cir. 1977), we find the conclusory assertions of exclusivity in those cases unhelpful. Although relying on a constitutional theory, one other federal court has concluded that I.R.C. § 7426 does not afford an exclusive remedy. See Hill v. McMartin, 432 F. Supp. 99, 102-103 (E.D. Mich. 1977).
In relevant part, 28 U.S.C. § 2501 provides:
"§ 2501. Time for filing suit
"Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.”
I.R.C, § 6532(c) provides:
"(c) Suits by persons other than taxpayers.—
"(I) General rule. — Except as provided by paragraph (2), no suit or proceeding under section 7426 shall be begun after the expiration of 9 months from the date of the levy or agreement giving rise to such action.
"(2) Period when claim is filed. — If a request is made for the return of property described in section 6343(b), the 9-month period prescribed in paragraph (1) shall be extended for a period of 12 months from the date of filing of such request or for a period of 6 months from the date of mailing by registered or certified mail by the Secretary or his delegate to the person making such request of a notice of disallowance of the part of the request to which the action relates, whichever is shorter.”
That conclusion is by no means certain. See Catalina Properties, Inc. v. United States, 143 Ct. Cl. 657, 166 F. Supp. 763 (1958); Grayson v. United States, 144 Ct. Cl. 185 (1958). Although unusual, just compensation claims alleging a taking of currency are sometimes used to contest exercises of the taxing power. E.g., Acker v. Commissioner, 258 F. 2d 568, 574-575 (6th Cir. 1958), aff’d on other grounds, 361 U. S. 87 (1959); Universal Exploration Co. v. Davis, 34 F. Supp. 96 passim (N.D. Ala. 1940). The usual method is a due process claim. E.g., United States v. Pittman, 449 F. 2d 623, 626 (7th Cir. 1971); Hill v. McMartin, supra note 23. But see Indus. Bank of Wash. v. Sheve, 307 F. Supp. 98, 99 (D. D.C. 1969).
This includes levies to collect delinquent taxes. Springer v. United States, 102 U.S. 586, 593-594 (1880); Phillips v. Commissioner, 283 U. S. 589, 595-596 & n.5 (1931). See also Fuentes v. Shevin, 407 U. S. 67, 90-92 (1972).
Gordon might have a cause of action against Accredited. See United Sand & Gravel Contractors, supra note 23, at 739. But see DiEdwardo v. First Nat'l Bank of Bath, 442 F. Supp. 499, 500 (E.D. Pa. 1977).
Concurrence Opinion
concurring:
Although I come out the same place the majority does, I get there by a somewhat different route.
1. The apparent rationale of the majority’s conclusion that section 110(a) of the Federal Tax Lien Act of 1966 did not restrict our jurisdiction under the Tucker Act to entertain a suit by a nontaxpayer challenging a tax levy upon its property is that (a) Congress was aware of that jurisdiction, and (b) its failure to refer to that jurisdiction
[pjresent decisions also permit one whose money is wrongly seized for another’s taxes to sue the United States for its recovery, but the suit must be in the Court of Claims if the amount exceeds $10,000 (although there are also decisions permitting such suit to be brought in the district court, without jurisdictional limit, if the Director is the nominal defendant).
ABA Final Report, Legislative History (see p. 333, n.9, supra) 168.
The entire discussion of our jurisdiction over such cases occupies a single paragraph within a 59-page discussion in the report on the broad subject of federal tax liens and levies. The report was introduced at the hearings before the House Ways and Means Committee on the proposed Federal Tax Lien Act, in the drafting of which act the American Bar Association played a major role. There was no discussion of the point either in the committee reports or on the floors of Congress.
I think this brief reference to our decisions is too slender a reed upon which to rest the conclusion that Congress was aware that we had exercised jurisdiction under the Tucker Act over this type of case. Rather, I think that a fair reading of the legislative history indicates that Congress was unaware of our decisions and enacted section 110(a) on the mistaken assumption that no other means was available by which a nontaxpayer effectively could challenge a tax levy on his property.
Nevertheless, I agree with the majority that in enacting section 110(a), Congress did not curtail our jurisdiction under the Tucker Act. There is nothing in the language or history of that section indicating that Congress intended that result. Since I believe that Congress was unaware of our Tucker Act jurisdiction in these cases, I do not think Congress should be deemed implicitly to have repealed it pro tanto by creating a remedy in the district court, unless there were a clear indication that Congress intended the new remedy to be exclusive. I find nothing to show that
2. The remaining question is whether the 9-month statute of limitations under section 110(a) or the 6-year statute under the Tucker Act applies. This aspect of the case presents the familiar problem of a court attempting to ascertain how the legislature would have dealt with an issue it did not consider if the problem had been called to its attention. The answer depends upon the basic purpose and plan of the statute the legislature enacted.
As the majority states, a major objective of section 110(a) was to insure that "third-party levy contests should be resolved quickly,” and the concerns that induced Congress to impose a 9-month limitations period for levy contests in the district court "are equally applicable to levy contests in this court.” I conclude that, if Congress had been aware of our Tucker Act jurisdiction over levy challenges by nontax-payers when it enacted section 110(a) and had considered what limitations period should apply to our cases, it probably would have selected the same 9-month period it adopted for district court cases. Accordingly, it is appropriate to apply the 9-month limitations period prescribed in section 110(a) to Tucker Act suits in this court. The plaintiffs petition therefore is untimely and must be dismissed.
3. Throughout this discussion I have assumed arguendo that despite the enactment of section 110(a), we would continue to recognize the right of nontaxpayers to bring Tucker Act suits to challenge tax levies on their property. That assumption, however, is dubious. We treat such suits as based upon a breach of a contract implied in fact under which the government agrees to refund to nontaxpayers property of those persons upon which the government improperly has levied. The doctrine apparently was first announced in Kirkendall v. United States, 90 Ct. Cl. 606, 31 F. Supp. 766 (1940). Its rationale was as follows:
*344 When the Government has illegally received money which is the property of an innocent citizen and when this money has gone into the Treasury of the United States, there arises an implied contract on the part of the Government to make restitution to the rightful owner under the Tucker Act and this court has jurisdiction to entertain the suit.
90 Ct. Cl. at 613, 31 F. Supp. at 769.
It does not follow, however, that there is a contract implied in fact where, as now, a nontaxpayer may recover property improperly levied upon through timely suit in the district court. In this situation it seems unlikely that the government also has agreed to make restitution to the nontaxpayer under an implied contract, which may be sued upon in this court. An important reason for the Kirkendall decision, although not explicitly set forth in the opinion, would appear to be that unless there were such a contract implied in fact, there might be no method by which the nontaxpayer effectively could recover the property the government improperly had taken from him through a levy. With the enactment of section 110(a), however, that situation no longer exists. Cf. Fletcher v. United States, 226 Ct. Cl. 560 (1980).
In view of our disposition of this case, there is no occasion here to reach this issue, which neither party has addressed. I discuss it only because it seems important to point out that, if and when the court faces the issue, it may conclude that Kirkendall no longer is viable.