No. 37744 | E.D. Pa. | Dec 29, 1965
The plaintiff, Helen McCann, has filed a complaint praying that certain tax assessments and liens levied by the defendants against her property be declared void, be cancelled, set aside and stricken, and further praying that the defendants be enjoined from seizing and levying upon her personal property, foreclosing upon her real property or levying upon her wages. Jurisdiction is based upon section 1340 of Title 28 U.S.C. Plaintiff alleges that her action is permissible under Title 28 U.S.C. § 2410.
Plaintiff alleges in her complaint that she is married to John McCann and that
The basis for the government’s motion to dismiss is that section 2410 does not apply to actions of this sort and that the United States has not thereby or otherwise waived its sovereign immunity. It is now well settled that section 2410 does not provide a vehicle for a taxpayer to question the validity of a tax assessment or lien. Quinn v. Hook,
Recognizing the authority and impact of these cases, plaintiff argues that she is not, in fact, a “taxpayer” but that her husband is the taxpayer and hence that she may invoke the provisions of section 2410. This approach, however, is merely an indirect method of questioning the validity of a tax lien levied against what-is admittedly the property of the plaintiff, and though indirect, it is nonetheless an attack on the validity of the assessment by one against whom a lien has been levied. The government asserts that plaintiff is, in fact, the taxpayer, and not without reason. The plaintiff admittedly applied for an identification number with both the federal government and the Pennsylvania Unemployment Compensation Fund. She admittedly filed employer’s tax returns as the operator of the roofing business from 1957 until about July 1962. The liens were for 1960 taxes, obviously embracing the period during which the plaintiff held herself out as the operator of the roofing business. Thus, by stating that she is not the taxpayer, the plaintiff merely argues the conclusion that she wishes to have reached in this law suit, — that the lien is not valid..
As we have said, where the government asserts that a given individual is the taxpayer and levies against the. property of that person, section 2410 cannot be construed as waiving the government’s immunity in a suit to question the validity of that lien. Plaintiff’s case is significantly similar to Floyd v. United States, 241 F. Supp. 996" court="W.D.S.C." date_filed="1965-05-27" href="https://app.midpage.ai/document/floyd-v-united-states-8748820?utm_source=webapp" opinion_id="8748820">241 F.Supp. 996 (W.D.S.C.1965). There, the plaintiff alleged that the government erroneously claimed that he and his wife owned and operated a certain .supper club as partners and that as a partner the plaintiff was liable for the payment of certain cabaret taxes, penalties and interest. He further alleged that certain real property owned by the plaintiff individually had been seized by the defendant for the purpose of selling the property for the payment of the taxes due. Plaintiff alleged that his wife had always been the sole owner of the supper club, that he had never been a partner in nor had any other interest in the business and owed no taxes due therefrom. The court said, at pages 998 and 999:
“ * * * The main thrust of plaintiff’s contention is that under the facts alleged in the complaint plaintiff herein is not in reality a ‘taxpayer’ since he at no time owned any interest in the supper club against which the taxes were assessed, and under no circumstances could he be liable for the alleged taxes; consequently, defendant has wrongfully and illegally levied upon his property for the taxes due and owing by his wife, who was the sole owner and operator of said supper club; and that he is entitled to maintain this action to quiet title to his reál estate, and to remove the cloud of the federal tax lien therefrom. Plaintiff strongly urges that defendant has waived its sovereign immunity to such action and has consented to be sued in this court under the provisions of Title 28 U.S.C. § 2410 [a].
****•»*•
“After a careful study and consideration of briefs submitted by counsel for both parties, and after reading and studying the cases and authorities cited therein, this court can reach no conclusion other than that this is essentially a suit to determine the validity of the tax assessed against the plaintiff by the defendant, and that the defendant has not withdrawn its sovereign immunity to such an action under the provisions of Section 2410[a], supra. * * *»
So here, we conclude that this is a suit to determine the validity of the tax assessed against the plaintiff, and that the defendant has not withdrawn its sover
Nor does this court have jurisdiction to entertain the plaintiff’s second ground for relief, an injunction against the collection of the tax. Section 7421(a) of Title 26 U.S.C. provides “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.'' Admittedly section 6212 (a) and (C) and section 6213(a) are not applicable here. Thus, this case falls squarely • within the broad interdiction of section'7421(a) prohibiting a suit for the restraint against the collection or as-. sessment of any tax. The clear terms of that section can be avoided only where it is clear that under no circumstances could the government ultimately prevail and this is to be determined on the basis of the information available to the government at the time of suit; otherwise; the complaint must be dismissed. Enochs v. Williams Packing and Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). As the Court said in Enochs, at pages 7 and 8, 82 S.Ct. at page 1129:
“ * * * To require more than good faith on the part of the Government would unduly interfere with a collateral objective of the Act — protection of the collector from litigation pending a suit for refund. And to permit even the maintenance of a suit in which an injunction could issue only after the taxpayer’s non-liability had been conclusively established might ‘in every practical sense operate to suspend collection of the * * * taxes until the litigation is ended.’ * * * ”
Here, it cannot conceivably be said that the government was guilty of bad faith or that there is no possibility that it cannot establish its claim. The plaintiff certainly held herself out as the operator of the business from 1957 to 1962. We have only to look at the government’s own records of tax returns assembled through the actions of the plaintiff herself to determine that she did, in fact, file the tax returns as the operator of the business. Here, the assess--menfc was made in good faith and the government claims that it is valid. Section 7421 prohibits us from entertaining a suit to enjoin, the collection of the tax.
For the-foregoing reasons the motion of- the government to dismiss will be granted.
. “(a) Under the conditions prescribed in this section and section 1444 of this title for the protection of the United States, the United States may be named a party in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien.”