Al-Kim, Inc. v. United States

610 F.2d 576

Opinion

J. BLAINE ANDERSON, Circuit Judge:

This action was commenced on December 15, 1975, by eleven Nevada corporations as plaintiffs against the United States of America, seven named Internal Revenue Service agents, five debtors of the plaintiffs, and two title companies.¹ In their complaint, the plaintiffs alleged that the federal defendants, with the aid of the other defendants, conspired to harass them in an attempt to dissuade them from doing further business with one Theodore Watkins.² The alleged harassment consisted of the federal defendants filing liens and serving levies which designated the plaintiffs as the alter egos, nominees, or transferees of the actual delinquent tax debtors.³ As a result of these actions, the plaintiffs alleged that they had been unable to convey certain unspecified real property because the “honoring defendants,” the debtors of the plaintiffs and the title companies, had honored these notices of lien and levies.

On May 28, 1976, the District Court for the District of Nevada heard the plaintiffs’ motion for preliminary injunction, and motion to dismiss filed by certain of the defendants.⁴ The District Court on February 2, 1977, entered an order denying the motion for injunctive relief; dismissing the action as to all defendants except the United States and the Security National Bank of Nevada for failure to state a claim, lack of jurisdiction, and improper venue;⁵ and dismissing the complaint with leave for four of the plaintiffs to file an amended complaint.⁶ All plaintiffs join in filing a notice of appeal on April 1, 1977, and we have jurisdiction under 28 U.S.C. § 1292(a)(1).⁷

On appeal the appellants argue that (1) they are entitled to injunctive relief under 26 U.S.C. § 6213; (2) jurisdiction was improper under 26 U.S.C. § 7426, and therefore the granting of the defendants’ motion for partial summary judgment was also improper; and (3) even if jurisdiction was proper under 26 U.S.C. § 7426, they are still entitled to injunctive relief. We disagree.

26 U.S.C. § 6213

Section 6213 provides that before the IRS can assess a deficiency, it must send a notice of deficiency to the assessee. The as-sessee then has 90 days in which to petition the Tax Court for redetermination of the deficiency. During that 90-day period the IRS cannot levy or proceed in court to collect the claimed deficiency. If the IRS makes “such assessment or [begins] such proceeding or levy during the time such prohibition is in force [the IRS] may be enjoined by a proceeding in the proper court.”

The appellants claim that they have never received deficiency notices, and that the IRS should therefore be enjoined from collecting or attempting to collect a deficiency pending compliance with the notice provision. In essence, the appellants are arguing that they are entitled to contest the merits of the tax assessment. We find such an argument to be without merit.

Neither the Internal Revenue Code nor the decisions of this court support any right of third parties to contest the merits of a tax assessment.⁸ In Graham v. United States, 243 F.2d 919, 922 (9th Cir. 1957), this court stated:

“We believe that only the taxpayer may question the assessment for taxes, and assert noncompliance by the Commissioner in sending the taxpayer a notice of deficiency by registered mail. * * * This right to review the tax deficiency assessment seems to us to be peculiarly personal to the taxpayer, and equally so, it would seem, is the right to show noncompliance by the Commissioner in mailing to taxpayer the 90 day letter, which is to give taxpayer the opportunity, if he wishes, to review the assessment. A tax assessment may not be collaterally attacked. (citations omitted). Equally, we do not believe [that] the Commissioner’s compliance or non-compliance with the statute in mailing the 90 day letter should be subject to collateral attack, especially by a third-party, non-delinquent taxpayer.”

As a result, we conclude that the appellants were properly denied injunctive relief under 26 U.S.C. § 6213.⁹

26 U.S.C. § 7426

Section 7426, Civil Actions by Persons Other than Taxpayers, was enacted by Congress to protect the rights of property owners whose property rights were unfairly injured by the levy or sale of the property of others.¹⁰ The appellants, however, argue that section 7426 is applicable only in situations where there has been a mistaken or inadvertent seizure by the IRS. They therefore argue that section 7426 does not apply here, since the seizures by the IRS were intentional. We find their argument without merit.

Under section 7426 no action by a non-taxpayer can lie unless the levy or sale has been wrongful. The legislative history of this Act makes clear the meaning of “wrongful”:

“The bill makes provision for three new types of actions all of which may be brought only in Federal district courts. First, where a person claims the Government wrongfully levied upon his property to satisfy the tax liability of another, the bill provides that he may bring suit against the Government. ‘Wrongful,’ as used here, refers to a proceeding against property which is not the taxpayer’s.” [Emphasis added] U.S.Code Congressional and Administrative News, 1966, p. 3751.

We find that the district court properly-invoked jurisdiction under section 7426.¹¹ Were the statute to be otherwise construed, the appellants themselves would be without legal recourse, and the government could with impunity seize property of innocent third parties by levy procedures. We do not believe that Congress intended this remedial statute to have the narrow meaning ascribed to it by the appellants.

INJUNCTIVE RELIEF

With respect to the appellants’ claim for injunctive relief, we conclude that injunctive relief was properly denied by the district court.

Under 26 U.S.C. § 7421(a), “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.” ¹² An almost literal construction of section 7421(a) was adopted by the Supreme Court in Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962); reaffirmed in Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1975). There the court held that section 7421 was applicable unless two factors were established:

(1) that it was clear that the Government under no circumstances could ultimately prevail; and (2) that the plaintiff would suffer irreparable harm if an injunction was not to issue.

In Enochs, supra, 370 U.S. at 7, 82 S.Ct. at 1128, the Supreme Court stated:

“ . . . the question of whether the Government has a chance of ultimately prevailing is to be determined on the basis of the information available to it at the time of the suit. Only if it is then apparent that, under the most liberal view of the law and facts, the United States cannot establish its claim, may the suit for an injunction be maintained.”

In light of this standard of review, and on review of the record before us, we cannot say that the Government has no chance of ultimately prevailing with respect to enforcing its tax liens against the appellants as the alter egos or nominees of the taxpayer.¹³ Since the appellants did not establish certainty of success, we need not determine whether irreparable injury was established. Consequently, the district court did not err in denying the appellants’ motion for in-junctive relief.

CONCLUSION

We conclude that the district court was correct in granting the appellees’ motion for partial summary judgment and denying the appellants’ motion for injunctive relief. Although the result reached today may seem harsh, “ . . .we must be certain that a third party does not become prey to the traps and tricks in the tax collector’s bag, [b]ut at the same time we must assure the tax gatherer that his gatherings be both speedy and unevadable, . . . Moyer v. Mathas, 458 F.2d 431, 435 (5th Cir. 1972).

We AFFIRM.

1

. Since the commencement of this action, the plaintiffs Lazy Two T Ranch, Inc., Timlar, Inc., and Tunzi, Inc., were voluntarily dismissed. Also, the proceedings against the defendants Georgia-Pacific Corporation and Belcher Abstract and Title Company have been voluntarily discontinued.

2

. The plaintiffs at this time were all tax service clients of Mr. Watkins. Watkins is not a party to this action.

3

. The delinquent tax debtors are not parties to this action.

4

. The evidence offered in connection with the motion for a preliminary injunction was considered by the trial court for the purposes of the motion to dismiss. The motion to dismiss was thus treated by the trial court as a motion for summary judgment under Rule 12, Fed.R.Civ.P.

5

. The United States has waived its sovereign immunity under 26 U.S.C. § 7426(a), and the only levy specified in the complaint was a levy on a bank account at the Security National Bank of Nevada.

6

. The four plaintiffs were Nev-Ore, Inc., Ba’Ha’, Inc., Al-Kim, Inc., and Blusea, Inc., whose affidavits in support of their motion for preliminary injunction exhibited the possibility of proper venue in the court’s district.

7

. An order of dismissal is not ordinarily an appealable final order; however, such an order is reviewable by an appellate court if necessary to determine a matter which is properly under appeal. 9 Moore’s Federal Practice ¶ 110.25[1] (2 Ed. 1974). This is such a case.

In addition, although the trial court did not enter its order dismissing plaintiffs’ complaint on a separate document, we are convinced that the district judge viewed the dismissals as final and appealable orders. Accordingly, under the “common-sense” approach of Bankers Trust Co. v. Mallis, 435 U.S. 381, 387, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978), we will consider the merits of the appeals from the dismissals without requiring that the plaintiffs return to the district court to obtain judgments which comply with Rule 58, Fed.R.Civ.P. See also State of Alaska v. Andrus, 591 F.2d 537, 539-540 (9th Cir. 1979).

8

. Under 26 U.S.C. § 6901, the IRS is authorized to collect a tax debt from any entity liable as a transferee of the initial tax debtor. Such transferees are entitled to the procedural protections of 26 U.S.C. § 6213 no less than the original tax debtor. In the present case, however, section 6901 is inapplicable. Although the Commissioner addressed the appellants collectively as “alter egos, nominees, or transferees,” he treated them as alter egos or nominees, not transferees.

9

. Contrary to the assertion made by the appellants, we do not feel that this conclusion violates their Fifth Amendment rights. They are not being deprived of their property without due process of law. A constitutionally sufficient remedy exists under 26 U.S.C. § 7426. Cf. Bomher v. Reagan, 522 F.2d 1201, 1202 (9th Cir. 1975) (California summary tax collection procedures which provided for subsequent judicial review held constitutional.) Moreover, since there was no constitutional deprivation, there could be no actionable conspiracy. The trial court therefore committed no error in dismissing the action against the individual IRS agents.

10

. 26 U.S.C. § 7426(a) provides as follows, in pertinent part:

“(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.”

11

. Since the jurisdictional basis was 26 U.S.C. § 7426, the action was proper only in the district where the property was situated at the time of the levy. 28 U.S.C. § 1402(c). The trial court was therefore correct in dismissing the action as to all the defendants except those whose property was seized in Nevada. See Note 6.

In addition, pursuant to 26 U.S.C. § 7426(d), actions against federal defendants are expressly forbidden when a lawsuit is maintained in compliance with that section. We therefore do not believe that the trial court erred in finding that the IRS agents were immune from suit. There is no evidence before us which shows that they did not act in good faith and with reasonable grounds to believe that their actions were appropriate. See Note 9.

12

. Appellants do not come within any of the statutory exceptions enumerated in section 7421(a).

13

. The record sufficiently establishes a nexus between the delinquent taxpayer and the property which the government levied upon. Flores v. United States, 551 F.2d 1169, 1174-1176 (9th Cir. 1977).