Jarro v. United States

835 F. Supp. 625, 1992 U.S. Dist. LEXIS 8073, 1992 WL 540795
CourtDistrict Court, S.D. Florida
DecidedMay 29, 1992
DocketNo. 92-853-Civ.
StatusPublished
Cited by1 cases

This text of 835 F. Supp. 625 (Jarro v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jarro v. United States, 835 F. Supp. 625, 1992 U.S. Dist. LEXIS 8073, 1992 WL 540795 (S.D. Fla. 1992).

Opinion

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER

MARCUS, District Judge.

THIS CAUSE comes before the Court upon Plaintiff George Jarro’s motion for temporary restraining order. This is an action pursuant to 26 U.S.C. § 7426 against the United States for wrongful levy by the Internal Revenue Service (“IRS”) on property which is not the taxpayer’s. By the instant motion Plaintiff seeks to enjoin the IRS “from levying upon the sales commissions due the Plaintiff for the taxes of Coral Steak, Inc., a Florida Corporation.” Motion for Immediate Hearing on Temporary Restraining Order and/or Preliminary Injunction at 1. [626]*626For the reasons detailed below, the Court concludes that it probably lacks jurisdiction to enter the injunctive relief requested and that even if we had the power to grant the relief sought, on this limited record, Plaintiffs showing of irreparable harm is insufficient for entry of this preliminary relief. Accordingly, Plaintiffs Motion for Temporary Restraining Order is DENIED.

Plaintiff was formerly the President and sole stockholder of Coral Steak, Inc., (“Coral Steak”) a corporation, now defunct, which became indebted to the United States for delinquent payroll taxes. A portion of these taxes were “trust fund taxes” attributed personally to Plaintiff, see 26 U.S.C. § 6672. Plaintiff maintains, and the United States has not disputed, that Plaintiff paid the United States in full for the debt apportioned to him personally. The remainder of the taxes were owed by the corporation Coral Steak.

Subsequent to his employment with Coral Steak Plaintiff began to work for Defendant Anderson Meat Distributors (“Anderson”). Pursuant to a written contract with Anderson, Plaintiffs wages are in part a commission comprising a percentage of sales to customers brought to Anderson by Plaintiff. Plaintiff acknowledges that many of the customers he brought to Anderson were previously customers of Coral Steak. In March 1992 the IRS served a Notice of Levy on Anderson against “George Jarro as nominee of Coral Steak, Inc.,” and began to seize a large percentage of Plaintiffs commissions. In essence, the Internal Revenue Service maintains that to the extent that customers of Coral Steak are now Plaintiffs customers at Anderson, commissions collected by Plaintiff are properly seized to satisfy Coral Steak’s outstanding tax debt.

Plaintiff, however, maintains that he is not a nominee of Coral Steak, and that the commissions upon which the IRS has levied arise not from any proprietary right taken from Coral Steak, but wholly from his personal services rendered. Plaintiff argues that as a matter of state law, these commissions cannot be deemed Coral Steak’s property. In sum, Plaintiff maintains that the IRS has wrongfully levied on his property in order to satisfy the obligations of Coral Steak, obligations for which he cannot properly be held accountable. On April 14, 1992 Plaintiff filed a complaint for injunctive relief and damages, entitled Complaint by a Person Other than the Taxpayer for Injunction and Other Relief Pursuant to 26 U.S.C. § 7426. After consulting with counsel for Plaintiff, this Court set the Cause down for a status conference on April 21, 1992, and at that status conference set an evidentiary hearing on Plaintiffs motion for temporary restraining order for April 22, 1992. At the April 22 hearing testimony was taken, various exhibits were offered and the Court heard argument as to the merits of Plaintiffs motion. In addition, the Court raised sua sponte the question of whether jurisdiction is vested in the Court to enter the requested injunctive relief.

At that time we expressed the concern that the Anti-Injunction Act, 26 U.S.C. 7421(a) may preclude the entry of an injunction— whether preliminary or permanent — in this instance. Then, as now, Plaintiff contended that the “wrongful levy exception” to the Anti-Injunction Act, 26 U.S.C. § 7426, a statutory exception to the Anti-Injunction Act, controls, and that by its terms the Court is empowered to grant injunctive relief. We expressed concern, however, that under the express language of section 7426 and under the authority of Ketcham v. United States, 783 F.Supp. 511 (D.Nev.1991), the wrongful levy exception was inapplicable. Accordingly, the Court directed further briefing as to jurisdiction as well as to other aspects of Plaintiffs claims. In addition, after hearing from the parties the Court established an expedited briefing and discovery schedule so that Plaintiffs claims on the merits could be tried as soon as reasonably possible.

I. Jurisdictional Analysis

The Eleventh Circuit has recently addressed the power of the federal courts to enjoin the collection of taxes. In Mathes v. United States the Court wrote as follows:

The question of jurisdiction to enjoin tax assessments and collections is expressly covered by 26 U.S.C. § 7421(a), the Anti-Injunction Act, which provides that “no suit for the purpose of restraining the as[627]*627sessment or collection of any tax shall be maintained in any court by any person ...” Section 7421(a) expressly allows the following exceptions: petitions to the Tax Court for a redetermination of a deficiency pursuant to 26 U.S.C. §§ 6212(a) and (c), 6213(a) and civil actions in the district court pursuant to 26 U.S.C. § 7426(a) and (b)(1).
Courts have recognized that, aside from the express statutory exceptions of this statute, federal courts may enjoin the collection of taxes if it can be shown that (1) under no circumstances could the government ultimately prevail on its tax claim and (2) equity jurisdiction otherwise exists; either ground being conclusive. Enochs v. Williams Packing [ & Nav.] Company, 370 U.S. 1, 6-7, 82 S.Ct. 1125, 1128-1129, 8 L.Ed.2d 292 (1962); Bowen v. United States, 331 F.2d 149, 150 (5th Cir.1964) (per curiam); see also Intercontinental Jet, Inc. and Jerry Lee Harvey v. United States of America, 690 F.Supp. 1012 (S.D.Fla.1988). Therefore, the general rule is that, except in very rare and compelling circumstances, federal courts will not entertain actions to enjoin the collection of taxes.

901 F.2d 1031, 1033 (11th Cir.1990) (footnote omitted) (ellipses in original). See United States v. Doyal, 462 F.2d 1357, 1358 (5th Cir.1972); Elias v. Connett,

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Bluebook (online)
835 F. Supp. 625, 1992 U.S. Dist. LEXIS 8073, 1992 WL 540795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jarro-v-united-states-flsd-1992.