United States v. Barr

оbjection sentencing raised no Eubanks America, of UNITED STATES court’s reliance on that fact.

to the district Plaintiff-Appellee, that, Michigan Court Rules do Beyond juvenile all of a offender’s require not that fact, destroyed. the rules records be Carolyn BARR, C. Defendant- “register that the of actions” must require Appellant, 3.925(E)(1), destroyed, Mich. Ct. R. not be (2)(b) (2)(d), register and and that must Barr; Incorporat Charles J. Comerica offense, include, among things, other ed; City County of Detroit and case, judge assigned to the the date of Wayne, Defendants. orders, hearings, judgments, trials and verdicts, date manner and the No. 09-1710. R. adjudiсation disposition. Mich. Ct. United States Court of Appeals,

8.119(D)(1)(c). It is far from clear that the Sixth Circuit. any court based its on district decision required by Michigan document Court Argued: April 2010. PSR, destroyed. Rules to have been Aug. Decided and Filed: 2010. detailing juvenile in its offense as history, criminal refers part Eubanks’s Rehearing Rehearing En Banc which “petition,” reflects Sept. Denied 2010. gun. offense involved the use of a Eu- provided upon banks has us no basis which petition infer this was not record required part register

that is to be actions established Rule

8.119(D)(1)(c). And, already as we have

discussed, Michigan Supreme it juvenile

has made clear when “a

offender in court appears again as

adult, juvenile may his offense record imposing

considered sentence.”

Smith, 470 N.W.2d circumstances,

Under these we conclude the district court committed by considering juve-

error at all Eubanks’s

nile felonious assault conviction and in con-

cluding felony that it a violent constitutеd ACCA, certainly

under the that error was plain.

not

III. reasons, foregoing

For the we AFFIRM

the sentence court. imposed district

proper in light equal this case. of this division, correctly the district court deter- appropriate. mined that foreclosure was Charles Barr the owed Government more than three hundred thousand dollars taxes, interest, in unpaid income and other Office, Nusholtz, Neal Law ARGUED: statutory accruals. The Government filed Birmingham, Michigan, Appellant. for seeking suit to foreclose the federal tax Nolet, Department A. States John by lien created against these debts the Justice, D.C., Washington, Appellee. for of Detroit, home in Michigan, that Mr. Barr Nusholtz, Office, BRIEF: Neal Law ON Carolyn аnd his wife Barr own as tenants Michigan, Appellant. for Birmingham, by entirety. Mr. Barr did not file a Nolet, Clark, Depart- A. Thomas J. John case, response and the district court Justice, D.C., Washington, Ap- ment of granted default judgment against Mr. Barr pellee. in the amount tax of his debt. The Gov- ernment summary then filed a motion for BATCHELDER, Judge; Before: Chief judgment on its foreclosure claim. Mrs. ROGERS, GREER, Judge; Circuit opposed Barr the motion and asked the Judge.* District district court to exercise its equita- limited J., ROGERS, opinion delivered the of ble discretion to decline order the sale court, GREER, D.J., joined. in which of the home. argued particular She BATCHELDER, 377-80), (pp. C.J. likely because she was outlive her separate opinion concurring delivered a in husband, her the home was part dissenting part. fifty more than percent of the value of the home. She contended that foreclosure was OPINION inappropriate therefore because of her ROGERS, Judge. Circuit larger interest only and because her hus- band had unpaid federal tax liabilities. The Government seeks to foreclose the The argued Government that an equal di- federal tax by income debt owed ‍‌‌‌‌​‌‌​​​​‌​‌​​‌​‌​​​‌‌​​​​​‌‌​​​​​‌​​​​‌​​‌‌‌‌‍Charles vision appropriate Michigan was under law home thаt he and his wife and that shifting Mrs. Barr had assisted in Carolyn by own entirety. as tenants properties other than the home out of Mr. argues Mrs. Ban- on appeal, as she did Barr’s name court, and into her name. The Gov- before the district that she is enti- urged ernment tled to conclusion that the vast of the sale pro- Mrs. Barr responsibility ceeds of bore some of the foreclosure sale and that fore- for the fact that appropriate closure is not Government could based on her only by dominant collect taxes from Mr. Barr the home and other fore- equitable closure. The sрouses factors. Because own- district court held that an ing equal by entirety any proceeds as tenants division of appro- are was equal entitled to proceeds priate, distribution of and the court refused to exercise its all contemplated by equitable circumstances discretion to the foreclo- such an equal division is appeals, also sure sale. Mrs. Barr now arguing * Greer, nessee, J. sitting Honorable Ronnie by designation. United States Judge District for the Eastern District Ten- in an equal interests results distribu- in their court erred that the district primarily of the sale of that proceeds to tion of the was entitled that she determining Third has reached the home. The Circuit any foreclosure proceeds of the half in the context of distribut- same conclusion sale. of the market sale of a proceeds ing fifty per Barr is entitled that had tax-encumbered home federal foreclosure sale cent couple tenants owned married as been § 7403 au Title 26 U.S.C. the home. States, entirety. Popky v. United courts to decree thorizes federal Cir.2005). (3d F.3d a tax lien. enforce federal to property Pennsylvania en- noted Third Circuit place, sale takes a foreclosure When such materially to that law was similar tireties “accord are to be distributed proceeds the as Michigan, of id. and reasoned respect the court in findings of ing to the follows: and of the parties to the interests correctly District Court ob- As the States,” fair com providing served, equal “the division of assets be- and to to the Government pensation both parallels ... the distri- spouses tween 7403(c). § In de Id. parties. third property bution of entireties when an interests for federal termining property estate is severed of a entireties because of under “the definition purposes, tax law tenants, of both di- sale with consent law, is left to state lying interests property policy other reasons.” vorce or Sound that attach to consequences the [and] the District approach reinforces Court’s left to federal is a matter those interests valuation, an is far equal to as valuation Rodgers, 461 States v. law.” United than simpler speculative and less the 677, 683, L.Ed.2d 236 by contemplated valuation the [married (1983). law, Michigan Mr. and Under couple]. rights to their Barr have identical (citations omitted) (first altera- Id. at 245 Indeed, spouses are enti marital home. original). tion proper in entireties equal tled to interests consideration of the com Detailed contemplated by ty every situation tenancy by en interests of a the ponent “equally are enti Michigan Spouses law. this intuitive conclusion. tirety reinforces rents, income, products, prof or tled to the entirety Michigan tenancy by A the by ... held them property its ... of real following rights: at least the law consists of entirety.” Comp. the Mich. as tenants right the right property, the to use the If held the property Laws 557.71. it, right from sold, entitled to to exclude third the entirety spouse eaсh is it, divorce, produced of income from upon to share proceeds, half of the right the to right survivorship, the equal for a default divi provides state law 552.102; equal a tenant in common with become property. of such Id. sion divorce, 274, 282, right the to sell the upon shares Craft, United States (2002). spouse]’s the other property [the with 152 L.Ed.2d 437 7403(c), to receive half the the consent and “distribu Under U.S.C. right place an tax from such proceeds” of a foreclosure

tion of the on the findings to the encumbrance “according is made consent, spouse]’s other interests of the respect [the court in spouse] other from right [the Be to block of the United States.” parties and encumbering uni selling or equal Barr have inter cause Mr. and Mrs. home, according laterally. ests in their division 282, 122 suggested proper way S.Ct. 1414. Court that a

Craft, 535 U.S. to val- right Rodgers’s that her ue life estate would be to as- Mrs. Barr asserts surviv- rate, eight percent sale or sume discount as- orship and her Rodgers sume that would live to her life are worth encumbrance expectancy, and thus calculate her share of survivorship than husband’s more her property’s value. Id. This kind of sale-prevention rights, but both these actuariаl calculation is not appropriate rights generate equal spousal interests. present Rodgers case. used actuarial dictates the Michigan law result necessity: valuation out of one cannot survivorship rights equal are between determine the value of a life estate—which If spouses. spouse greater effectively what possessed— expectancy larger life interest under estimating length without of the meas- Michigan greater then this uring life. The Court thus based Michigan would be reflected in the rules its choice of valuation on fact method dividing property upon divorce or con “any calculation of the cash value of a However, sensual sale. because necessity homestead interest must of be provides equal law for division of 704, based on actuarial at statistics.” Id. sale, upon divorce or consensual differ necessity S.Ct. No such exists ences in life in expectancy do not result here, and Barr presents compel- Mrs. no survivorship different interests. ling why reason apply this court should not Rodg This conclusion is consistent with presumption equal spousal life ex- In Rodgers, Rodgers ers. Lucille was the pectancy implicit in Michigan law. Bosco, of Philip widow a tax debtor. 461 right prevent Mrs. Barr’s sale also 687, Rodgers 103 S.Ct. 2132. and does not support her contention that her her husband had owned occupied and their in the marital greater home is home as a homestead under Texas law. than that of her husband. Mrs. as- that, provides Id. Texas law at the death of right serts first that her prevent sale spouse, spouse one the other “has a vested value, must have some and that this value estate in property] [homestead must increase her interest in the property. which she during cannot be divested her argumеnt This overlooks the fact that the except by life voluntary abandonment or a ban on unilateral alienation is both bene- 686, conveyance.” Id. 103 S.Ct. 2132 fit detriment to owners of entireties Siemoneit, (quoting Paddock v. 147 Tex. property. Mrs. sale-prevention Barr’s (1949)). 571, 428, Rodgers 218 S.W.2d right enhances her interest because she effectively life estate in her prevent can a sale only by desired Mr. marital home. See id. at Barr. ‍‌‌‌‌​‌‌​​​​‌​‌​​‌​‌​​​‌‌​​​​​‌‌​​​​​‌​​​​‌​​‌‌‌‌‍But the same rule detracts from her Rodgers 2132. The Court that held interest, she as cannot sell or encumber Government could force a sale of the home her interest in the Mr. property without under satisfy 7403 to Bosco’s tax debt. permission. rights Because these 703-04, Id. at Recognizing 103 S.Ct. 2132. precisely reciprocal are spouses, between Rodgers that was entitled to a share of the they have no net effect on the relative proceeds of that corresponding interests of who own spouses as her interest in property, the homestead entirety. tenants offered, the Court “only the sake for illustration,” example an Relying by analogy of how such on Takings property might 698-99, precedents, valued. Id. at Barr secondly Clause 103 S.Ct. 2132 (emphasis original). Thе that the fact being asserts that she is de- clear, right easily sale distin because of the need for a ad- prived of her situation from a con guishes present governing ministrable rule the measure of ” sale, thus undermines the ‘just sensual compensation.’ present Id. The sit- implicitly law conclusion that distinguishable uation is from a consensu- supports equal assignment interests. al sale in that Mrs. Barr is being 7403 as consistent with upholding forced to sell the home her will. Amendment, the Fifth Takings Because the Clause does not re- noted the extent “[t]o loss, quire compensation for such a Tak- property interests are third-party ings jurisprudence supports Clause a tax process ‘taken’ in the foreclo [of conclusion that Mrs. Barr should receive sure], § provides compensation no more here than she would 'receive af- the court ‘taking’ by requiring fifty percent. ter a consensual sale: proceeds of the sale ‘ac distribute the Mrs. Barr also asserts that she has an cording findings of the court greater in the home than half of respect to the interests variety its value based on a of theories that ” at 697- of the United States.’ 461 U.S. would result the total of her and her 2132. Mrs. Barr is correct property’s being husband’s interests the exercise of the Government’s greater percent. than one hundred Such a her home de power to force the sale of possible result is not which to refuse a prives her of her requires courts to distribute “the specifically being compen she is not according of such sale to the findings of But consistent sated for that loss. this is respect the court in to the interests of the general Takings rule under the parties and of the States.” United One paid are Clause that owners cannot distribute more than the total value prop the fair market value of their of the price, and thus the total of all of erty they part when are forced to with it in property—including the interests Kirby their will. See Forest In that of the United States—must be one States, dus., 1, 467 9- Inc. v. United U.S. percent. hundred (1984). 10, 2187, 1 104 S.Ct. 81 L.Ed.2d “ standard, ‘Under this the owner is enti correctly The district court therefore de- willing buyer to what a would tled receive fifty termined that Mrs. Barr is entitled to a at pay willing cash to seller the time percent of the of the foreclosure ” 10, taking.’ 104 2187 Id. S.Ct. sale. This conclusion renders moot Mrs. (quoting Acres United States 564.54 that, of argument this court were to Land, 506, 511, 1854, 441 60 finding overturn the district court’s (1979)) (internal quotаtion L.Ed.2d 435 valuation, respect ap- remand would be omitted). marks Court has propriate equi- to determine whether the that, when acknowledged “[particularly support ties continued to a sale of the special has some value to its home. adaptability owner because of its to his use, argues also the dis

particular fair-market-value trict court in granting summary erred not make the owner measure does 15, judgment because it failed to conduct in a n. whole.” Id. at 10 104 S.Ct. 2187. proper balancing manner de But are to tolerate oc test willing “[w]e such difficulty Rodgers. argument сasional because of the scribed This fails inequity man assessing places Rodgers the value an individual because the Court did not a four-factor upon particular piece application date balanc- 376 (4) sation;” a district court could order “the relative character

ing test before contrary, the and value of the § 7403. To the non-liable and liable a sale under balancing interests held in the Rodgers property.” established Court only after the dis- requirement test as Barr, 07-11717, United States v. No. 2008 that a 7403 trict first determines court (E.D.Mich. 4104507, 2, at *2 Sept. WL hardship undue to an sale would cause 2008) Rodgers, (quoting 461 U.S. at 710- exercising before its third-party; innocent 2132). 11, court district limited discretion not to order weighed determined that the first factor justify court must decision district favor of foreclosure because “the United balancing test. This Rodgers means of the any States cannot look to other assets of Rodgers supported conclusion is to collect.” Id. at *3. The [Mr. Barr] declaration that the Government Court’s district court noted under normal in collecting interest” “paramount has circumstances, the second factor would taxes, 711, 2132, S.Ct. court, weigh against foreclosure. Id. The precedent the Sev- follows established however, “partic found that Mrs. Barr had Circuit, Davenport, enth States v. ipated conveyance of four properties (7th Cir.1997) (holding 106 F.3d specifically ‍‌‌‌‌​‌‌​​​​‌​‌​​‌​‌​​​‌‌​​​​​‌‌​​​​​‌​​​​‌​​‌‌‌‌‍contemplated ... to frustrate Rodgers factors “is application efforts,” the United States’ tax collection prerequisite pow- not a to a district court’s and thus the court determined that this 7403”). er to decree a sale under factor was not entitled to much weight. Even if had in Bierbrauer, (citing Id. United States v. four- application tended to mandate its (8th Cir.1991)). F.2d With re part balancing prior test court- factor, spect third the district court ordered foreclosure sale under we determined inconvenience of “[t]he affirm still the decision of the dis would relocating [Mrs. Barr’s] is no different court, trict as there is no evidence that the from the inconvenience with any associated district court abused its discretion. sup foreclosure sale and is insufficient to determining appropri that foreclosure was port a denial of such a in sale this case.” ate, court four applied district explained Id. The court that “if ‘the inher Rodgers factors: ent indignity inequity being and re

(1) “the extent to which the Govern- automatically pre moved from one’s home’ foreclosure, preju- government ment’s financial interest would be cluded ‘the could relegated diced if it to a jointly were forced sale never foreclose owned partial actually liable for clearly interest residence—a result untenable un ” (2) taxes;” Bierbrauer, delinquent § (quoting “whether the der 7403.’ Id. 936 375-76). party third separate Finally, non-liable F.2d at the district court would, interest in the in the determined that the fourth factor did not normal (leaving support application course of events aside of the court’s limited and proceedings, equitable 7403 eminent domain discretion not to order foreclo course), legally recognized have a ex- sure Barr only because Mrs. a half pectation separate property property. would interest in the at *4. Id. The subject not be to forced sale district court found that foreclosure delinquent taxpayer or his or her credi- appropriate granted summary was and tors;” (3) likely prejudice “the judgment to the Government. Id. We party, personal third agree both dislocation with the district court’s resolution of costs in ... рractical undercompen- adopt these issues and therefore the dis- sale”); “grant[s] power to order the reasoning with re- thoughtful trict court’s 274, 283, Craft, States v. factors. gard to (2002) 152 L.Ed.2d 437 S.Ct. judgment of AFFIRM the therefore We Michigan (holding tenants court. the district entirety possess in the sufficient attach). tax liens to interests for federal BATCHELDER, Chief M. ALICE sale, however, power to order the “is dissenting concurring part and Judge, degree by equitable discre limited to some part. and, sold, the non- tion” majority opinion’s con- I concur delinquent spouse portion is entitled to the residence of that foreclоsure of the clusion proceeds represents “as com Carolyn appropriate Barr was Charles and plete compensation the loss of the major- § 7403. The pursuant to 26 U.S.C. [property Rodgers, 461 U.S. interests].” however, conflates two distinct ity opinion, 680, 103 2132. S.Ct. (1) appro- foreclosure is issues: whether plain language 7403 indicates tax obli- satisfy in order to priate, may that a district court order the sale of Barr; husband, Charles gations of her allows the property, which district court (2) of the sales proper distribution “limited room ... for the exercise of rea post-foreclosure. The Id. at soned discretion.” S.Ct. that the dis- appears to conclude opinion However, Court has it was also trict court was correct because this is limited stated that discretion determining that Mrs. was correct rigorously spar exercised “should be pro- of the net sales 50% entitled ingly, keeping in mind the Government’s agree I that foreclosure was While ceeds. paramount prompt and certain correct, justification for legal there is no delinquent taxes.” Id. at collection of does, concluding, majority opinion as the determining whether to 103 S.Ct. 2132. propriety of foreclosure some- that the sale, a decline to authorize a district court dependent upon particular distribu- how consider, others, among should the follow reject the strongly I also proceeds. tion of (1) the extent to which the ing factors: surprising conclusion majority opinion’s financial interests would be government’s to treat a requires law us only a partial if it could sell prejudiced purposes tax as identical to forced sale for than the property, in the rather reasons, I a consensual sale. For these (2) whole; third property as a whether the respectfully dissent. interest separate with a non-liable party events, would, have in the normal course Court’s Order of Fore- A. The District expectation that the legally recognized closure subject not to a forced property would (3) undisputed government sale; It that the to the third likely prejudice the to 26 request, pursuant personal the dislocation costs party, both (4) 7403, undercompensation; § that the district court order practical U.S.C. of the non- the States the relative character and value the sale of Residence. United 680, prope 677, interests held the 103 S.Ct. liable and liable Rodgers, 710-11, 103 (1983) rty.1 Id. at S.Ct. 2132. 2132, (holding that 76 L.Ed.2d 236 However, Rodgers Court § 7403. misinterpreted as estab- factor could be 1. This possibility only that lishing post-foreclosure was concerned a correct division of might large as to party interest be so prerequisite foreclosure the third as a for sale assets rejects majority opinion correctly properties when considering equita- The other argument Rodgers that Mrs. Barr’s ble proposed factors relative to the foreclo- mandatory. balancing test is sure.2

opinion correctly concludes even also B. The District Court’s Valuation of balancing mandatory, if the test was fore- Property Interests required closure would still have been un- However, although der 7403. the dis- The district court charged is also in concluding trict court did not err determining proper division of sale appropriate, foreclosure was it did err in proceeds between parties innocent third the second its discussion of factor and Mrs. government. alleged complicity with the transfer has offered the following instructions to Saginaw, Michigan properties of four (1) guide process: distribution of the order to “frustrate the United States’ tax рroceeds must consider all the inter- collection efforts.” parties, ests held Rodgers, 461 U.S. (2) legal right 681, Barr had a preclude 2132; 103 S.Ct. the district Residence, legal sale of the and there is no ‍‌‌‌‌​‌‌​​​​‌​‌​​‌​‌​​​‌‌​​​​​‌‌​​​​​‌​​​​‌​​‌‌‌‌‍court must look to state law to determine justification concluding partic party’s her each “bundle of sticks'—a collection ipation in Saginaw which, the transfer of the rights of individual in certain com- Properties binations, somehow eliminated that “legal property,” constitute Craft, 535 ly recognized expectation” 278, (3) that the 1414; Resi U.S. at the dis- dence could not per be sold without her trict court must ensure that innocent third mission. The district court was correct “complete compensation” receive that Mrs. Barr’s argue interests, unclean hands for their Rodgers, (4) an exercise of 2132;3 discretion her the district court favor, but that does justify not may incorrect not government any award the more application factor, Rodgers second proceeds than the share it to which especially (de- since the Rodgers entitled, Court ex id. at 103 S.Ct. 2132 pressly stated that the four claring factors listed provisions that the 7403 “en- comprise list, did not a comprehensive sure] the Government not receive allowing for other considerations. Rodg out of the of the sale more ers, 461 U.S. at entitled”); S.Ct. 2132. The than to which it is properly (5) district court should have concluded that government’s is limit- weighed second factor in favor of Mrs. ed to the interest delinquent held Barr, and discussed partic Mrs. Barr’s taxpayer, which interest must be estab- ipation of the Saginaw transfers of the prior lished to the 7403 order of swamp these, delinquent taxpay- interest of the conduct in cases such as even at the "[!]£, hand, er's interest. on the other appearing hyper-technical. risk of party only third possessory not has a interest, or fee but that interest is worth 99% Court, According it is property, of the might value of the then there through awarding complete compensation to virtually well be no reason to allow the sale to party the innocent third 7403 avoids 711, proceed.” Rodgers, 461 at 103 any "difficulties under the Due Process S.Ct. 2132. Rodgers, Clause of the Fifth Amendment.” 697, Therefore, 461 U.S. at 103 S.Ct. 2132. may hyper-technical, 2. While this seem this district courts must take care to assure that area of the law has suffered from a lack of compensation innocent third receive clarity long enough. ought for clarify We to property they possess. for each interest analysis the that the district courts should

379 a equivalent a 7403 sale as to 690-91, These viewed id. sale, However, the far abundantly clear that consensual id.4 it make guidelines support is a dif greater weight valuation method of the cases proposed Mrs. However, the v. approach. ferent See Harris United unsupportable. and illogical (5th States, 1126, valuation simplistic 764 F.2d 1131-32 Cir. opinion’s 1985) and similarly (valuing spouses’ flawed. the life estates is method survivor interests and deter contingent correctly identifies majority opinion on her lifе ex mining higher based rights possesses— interest.); the wife had a 50.98% pectancy, interest, estate, and a a survivor a life Gibbons, 1496, 71 F.3d States sale, among others—but to (10th Cir.1995) the valua (requiring 1500 to infer way by attempting loses its then tion of an ex-wife’slife estate and survivor val- court would Michigan how a precisely concluding that she was enti interest in a situation interests ue those greater than one-half the total val tled disagree with the strongly I like this. Pletz, 221 property); In re F.3d ue that a majority opinion’s conclusion (9th Cir.2000) (holding that or to a divorce equivalent sale is forced requires valuation consideration of proper reasons I describe for consensual tenants, expectancies joint the life However, even detail below. greater rejecting proposition ma- agree would Michigan courts half wife’s share was limited to a point, on this conclusion jority opinion estate). in the life our consideration of irrelevant here, “although the defini- because issues Likewise, never while this Circuit has interests is left underlying property tion of directly question, prior addressed this our law, that attach consequences to state support in other contexts a re decisions a matter left to federal to those interests is jection split. of a blanket Unit 50/50 Rodgers, law.” Lane, Leroy 910 F.2d ed States v. 2525 recognize are constrained to 2132. We (6th Cir.1990), this court was faced rights possesses Mrs. Barr proceeding a criminal forfeiture the issue of how those but sold, property to via forfei which the compensated solely a interests are to be ture, joint tenancy by a was held as law. matter of federal The court refused to sever the entireties. turn it into a tenan argues strong- law entireties estate and weight of federal doing so “would cy conclusion in common bеcause majority opinion’s ly against fifty adequately compensate wife] not simple [the Barr is entitled to a that Mrs. interest.” Id. at 350. by survivorship a tenant her interest because she is percent Leroy in 2525 Unquestionably, court and the wife The district the entireties. would have been entitled rely Popky on v. United Lane majority opinion common, (3d States, Cir.2005), tenancy of a so in one-half share 419 F.3d already that an this court has determined adopted Third which the Circuit 50/50 spouse’s tenancy interest in a entireties because innocent split for tenants higher than the entireties must be valued split simpler wаs “far and less a 50/50 tenancy equivalent the Third Circuit speculative,” because adopting particular rationale in simply legal justification for ion was no 4. There is conclusion, support I believe we should property rights litigants of its ignoring the vested simplicity explicitly reject the Third Circuit's complexity uncertainty in order to avoid and, majority opin- rationale. while I not believe the do 380 if it that the probable

common innocent which the opinion fails to do. guilty spouse (delinquent) will outlive weight of case both from this spouse. circuits, circuit and our sister is also strongly favor of reсognizing, and re- ignoring linguistic Even inconsisten- for, quiring compensation Mrs. Barr’s sur- cy asserting that a sale and a forced vivor interest right prevent to sale. should be treated consensual sale majority opinion Because the fails to do same, §a treating 7403 forced sale as these, respectfully either of I dissent. equivalent to a consensual sale or sale a subsequent ignores to divorce also question timing.

fundamental aWhen occurs, sold,

divorce and the tenancy by entirety is severed first, ‍‌‌‌‌​‌‌​​​​‌​‌​​‌​‌​​​‌‌​​​​​‌‌​​​​​‌​​​​‌​​‌‌‌‌‍divorce decree then is sold. The divorce decree tenancy

transforms the in the entireties common, into tenаncy so a split 50/50 SPEES, Heather Plaintiff-Appellant, subsequent from a sale is the natural re- Similarly, sult. when a consensual sale

occurs, both consent to the MARINE, JAMES INC. and Jam effectively surrendering their in- survivor esBuilt, LLC, Befendants- right terests and their sale. Appellees. Only effectuated, then is the sale No. 09-5839. is, split again, the natural result. 50/50 7403, however, pursuant § With a sale United States Appeals, Court of non-delinquent the value of the spouse’s Sixth Circuit. prior interests must be determined Argued: April 2010. order, § which the court will ex- tinguish rights. those proper- Valuation of Decided Aug. and Filed: ty § interests under 7403 cannot occur as non-delinquent spouse already surrendered her interests. To do so would unsightly specter

raise the taking of a just compensation.

without Rodgers, See 103 S.Ct. 2132 (holding requires compensation for ev-

ery property is “taken” in the

process).

Mrs. legitimate property Barr has inter- residence,

ests in her and those interests

cannot simply away by assumed pre-

tending that a 7403 sale is the same as a

consensual sale or a sale subsequent to a

divorce precedent decree.

demands that protect we compensation for her interests

during process, something

Case Details

Case Name: United States v. Barr

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 4, 2010

Citation: 617 F.3d 370

Docket Number: 09-1710

Court Abbreviation: 6th Cir.