ORDER
FREEDMAN, District Judge.
This is an action seeking an injunction against the collection or enforcement by lien, levy or otherwise, of an income tax assessment of March 28, 1973 against the plaintiff. Jurisdiction is allegedly based on Section 6213(a) of the Internal Revenue Code of 1954 (Code) (26 U.S.C. § 6213(a)) and 28 U.S.C. § 1340. Plaintiff alleges that on March 28, 1973 the Internal Revenue Service (IRS) made an assessment against the plaintiff of income taxes for the period of January 1, 1973 to March 24, 1973, and on that same date filed a Notice of Levy with respect to said assessment and levied upon $16,225.00 in currency which was plaintiff’s property then in the possession of local police. The plaintiff further alleges that IRS never issued a deficiency notice with respect to that assessment. The complaint offers nothing further in the way of facts.
Defendant has responded with a motion to dismiss on the grounds that Section 7421 of the Code (26 U.S.C. § 7421) “bars the jurisdiction of this Court to entertain this action.” Plaintiff has moved for summary judgment pursuant
to Rule 56. Oral arguments were heard on both motions on April 1, 1974. Extensive briefs have been filed by both parties and considered carefully by the Court. Although there are no affidavits either in support of or in opposition to plaintiff’s motion, it does indeed appear from the briefs and from oral argument that there is no dispute as to the relevant facts as alleged in the complaint and that a determination on either motion will turn upon the Court’s interpretation of a single issue of law.
Section 6851(a)(1) of the Code (26 U.S.C. § 6851) provides that upon a finding by the IRS that a taxpayer may act in such a manner as to prejudice or render ineffectual proceedings to collect the income tax for the current or preceding taxable year, the Secretary or his delegate may terminate the taxable period and demand payment of the tax which becomes immediately due and payable. Notice of such finding and termination must be given to the taxpayer.
As in this case, the notice of termination is often closely followed by an assessment and Notice of Levy. On March 28, 1973 a tax liability of $20,004.00 was assessed against the plaintiff and his money in the possession of the local police levied upon. The IRS has not issued a deficiency notice with respect to his liability for the terminated period. Plaintiff does not raise here any challenge to the finding of the IRS made pursuant to § 6851 as to the necessity for termination of the taxable year nor can he in this Court, at this juncture, challenge the amount of the assessment. Plaintiff is basing his prayer for relief solely on the fact that a deficiency notice was not issued.
Plaintiff argues that no assessment power exists within § 6851 itself, but that an assessment made in conjunction with a § 6851 termination can only be made pursuant to § 6861 of the Code (26 U.S.C. § 6861) — the jeopardy assessment provision. Defendant concedes that no assessment power exists under § 6581 itself, but argues that such an assessment is made pursuant to § 6201(a) of the Code (26 U.S.C. § 6201(a)) — the general assessment provision. Section 6861 provides for the assessment of a “deficiency,” as defined in § 6211, where the IRS believes the collection of the deficiency will be occasioned by delay. Such an assessment must be accompanied by a “deficiency notice.”
An assessment made pursuant
to the general assessment provision, § 6201, does not contemplate a deficiency and a deficiency notice is not required.
The issue has been well stated in Schreck v. United States, 301 F.Supp. 1265 (D.C.Md., 1969). “The real issue in this case is whether a taxpayer has a right to have adjudicated in the Tax Court the validity of an assessment in a jeopardy situation made for a short-period.” To meet the jurisdictional requirements of the Tax Court, the taxpayer must secure a deficiency notice often referred to as his or her “ticket to the Tax Court.” Because there is no requirement for a deficiency notice where an assessment is made pursuant to § 6201, a taxpayer is foreclosed from challenging the assessment in the Tax Court. Irving v. Gray, 479 F.2d 20 (2nd Cir., 1973). Where there is a requirement that the assessment be accompanied by a deficiency notice (§ 6861), as plaintiff asserts is the case here, the taxpayer is entitled to that notice so that he or she may challenge the assessment in the Tax Court prior to paying the assessed tax. See
Schreck, supra,
at 1284; Lisner v. McCanless, 356 F.Supp. 398, 404 (D.Ariz., 1973) (Appeal Pending). Defendant argues that § 7421(a) forecloses the Court from granting the requested injunctive relief. That section specifically prohibits the maintenance of suits for the purpose of restraining the collection or assessment of any tax, except as provided in other sections of the Code.
One such exception appears in § 6213(a) of the Code wherein it is provided that any assessment for, or levy or collection on a deficiency, may be enjoined until the taxpayer has been sent a notice of deficiency.
Under defendant’s theory, § 6213(a) is inapplicable and the Court lacks jurisdiction.
The issue of whether an assessment made subsequent to a § 6851 termination is a “deficiency” as contemplated by the provisions of § 6861, is one which has resulted in an almost even split of authority within an ever increasing body of ease law. It appears that this is the first time a Court in this Circuit has had to address itself to interpreting the relevant provisions as they relate to this fact pattern. Because the issues have been so thoroughly explored in the many cases out of other Circuits, this Court will not attempt a novel approach of its own, but will ex
amine the precedent briefly and follow that conclusion which it finds most persuasive.
The leading case in support of plaintiff’s theory that: (1) the assessment authority comes from § 6861; (2) that he was therefore entitled to a deficiency notice or “ticket to the Tax Court;” and (3) that because he didn’t get it the Court has the power to enjoin collection and further levy; — is Schreck v. United States,
supra.
In an exhaustive opinion, the Court explored the history of the relevant Code provisions and concluded that it was the intent of Congress to afford a taxpayer, whose year was terminated pursuant to § 6851, the same rights and privileges afforded to taxpayers in other jeopardy situations where assessments are more clearly authorized by § 6861.
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ORDER
FREEDMAN, District Judge.
This is an action seeking an injunction against the collection or enforcement by lien, levy or otherwise, of an income tax assessment of March 28, 1973 against the plaintiff. Jurisdiction is allegedly based on Section 6213(a) of the Internal Revenue Code of 1954 (Code) (26 U.S.C. § 6213(a)) and 28 U.S.C. § 1340. Plaintiff alleges that on March 28, 1973 the Internal Revenue Service (IRS) made an assessment against the plaintiff of income taxes for the period of January 1, 1973 to March 24, 1973, and on that same date filed a Notice of Levy with respect to said assessment and levied upon $16,225.00 in currency which was plaintiff’s property then in the possession of local police. The plaintiff further alleges that IRS never issued a deficiency notice with respect to that assessment. The complaint offers nothing further in the way of facts.
Defendant has responded with a motion to dismiss on the grounds that Section 7421 of the Code (26 U.S.C. § 7421) “bars the jurisdiction of this Court to entertain this action.” Plaintiff has moved for summary judgment pursuant
to Rule 56. Oral arguments were heard on both motions on April 1, 1974. Extensive briefs have been filed by both parties and considered carefully by the Court. Although there are no affidavits either in support of or in opposition to plaintiff’s motion, it does indeed appear from the briefs and from oral argument that there is no dispute as to the relevant facts as alleged in the complaint and that a determination on either motion will turn upon the Court’s interpretation of a single issue of law.
Section 6851(a)(1) of the Code (26 U.S.C. § 6851) provides that upon a finding by the IRS that a taxpayer may act in such a manner as to prejudice or render ineffectual proceedings to collect the income tax for the current or preceding taxable year, the Secretary or his delegate may terminate the taxable period and demand payment of the tax which becomes immediately due and payable. Notice of such finding and termination must be given to the taxpayer.
As in this case, the notice of termination is often closely followed by an assessment and Notice of Levy. On March 28, 1973 a tax liability of $20,004.00 was assessed against the plaintiff and his money in the possession of the local police levied upon. The IRS has not issued a deficiency notice with respect to his liability for the terminated period. Plaintiff does not raise here any challenge to the finding of the IRS made pursuant to § 6851 as to the necessity for termination of the taxable year nor can he in this Court, at this juncture, challenge the amount of the assessment. Plaintiff is basing his prayer for relief solely on the fact that a deficiency notice was not issued.
Plaintiff argues that no assessment power exists within § 6851 itself, but that an assessment made in conjunction with a § 6851 termination can only be made pursuant to § 6861 of the Code (26 U.S.C. § 6861) — the jeopardy assessment provision. Defendant concedes that no assessment power exists under § 6581 itself, but argues that such an assessment is made pursuant to § 6201(a) of the Code (26 U.S.C. § 6201(a)) — the general assessment provision. Section 6861 provides for the assessment of a “deficiency,” as defined in § 6211, where the IRS believes the collection of the deficiency will be occasioned by delay. Such an assessment must be accompanied by a “deficiency notice.”
An assessment made pursuant
to the general assessment provision, § 6201, does not contemplate a deficiency and a deficiency notice is not required.
The issue has been well stated in Schreck v. United States, 301 F.Supp. 1265 (D.C.Md., 1969). “The real issue in this case is whether a taxpayer has a right to have adjudicated in the Tax Court the validity of an assessment in a jeopardy situation made for a short-period.” To meet the jurisdictional requirements of the Tax Court, the taxpayer must secure a deficiency notice often referred to as his or her “ticket to the Tax Court.” Because there is no requirement for a deficiency notice where an assessment is made pursuant to § 6201, a taxpayer is foreclosed from challenging the assessment in the Tax Court. Irving v. Gray, 479 F.2d 20 (2nd Cir., 1973). Where there is a requirement that the assessment be accompanied by a deficiency notice (§ 6861), as plaintiff asserts is the case here, the taxpayer is entitled to that notice so that he or she may challenge the assessment in the Tax Court prior to paying the assessed tax. See
Schreck, supra,
at 1284; Lisner v. McCanless, 356 F.Supp. 398, 404 (D.Ariz., 1973) (Appeal Pending). Defendant argues that § 7421(a) forecloses the Court from granting the requested injunctive relief. That section specifically prohibits the maintenance of suits for the purpose of restraining the collection or assessment of any tax, except as provided in other sections of the Code.
One such exception appears in § 6213(a) of the Code wherein it is provided that any assessment for, or levy or collection on a deficiency, may be enjoined until the taxpayer has been sent a notice of deficiency.
Under defendant’s theory, § 6213(a) is inapplicable and the Court lacks jurisdiction.
The issue of whether an assessment made subsequent to a § 6851 termination is a “deficiency” as contemplated by the provisions of § 6861, is one which has resulted in an almost even split of authority within an ever increasing body of ease law. It appears that this is the first time a Court in this Circuit has had to address itself to interpreting the relevant provisions as they relate to this fact pattern. Because the issues have been so thoroughly explored in the many cases out of other Circuits, this Court will not attempt a novel approach of its own, but will ex
amine the precedent briefly and follow that conclusion which it finds most persuasive.
The leading case in support of plaintiff’s theory that: (1) the assessment authority comes from § 6861; (2) that he was therefore entitled to a deficiency notice or “ticket to the Tax Court;” and (3) that because he didn’t get it the Court has the power to enjoin collection and further levy; — is Schreck v. United States,
supra.
In an exhaustive opinion, the Court explored the history of the relevant Code provisions and concluded that it was the intent of Congress to afford a taxpayer, whose year was terminated pursuant to § 6851, the same rights and privileges afforded to taxpayers in other jeopardy situations where assessments are more clearly authorized by § 6861. Among those cases adopting the
Schreck
interpretation are the following: Rambo v. United States, 492 F.2d 1060 (6th Cir., 1974), affirming, 353 F.Supp. 1021 (W.D.Ky., 1972); Lisner v. McCanless, supra; Williams v. United States, 352 F.Supp. 1387 (D.C.Nev., 1973); Clark v. Campbell, 341 F.Supp. 171 (N.D.Tex., 1972). In
Rambo,
the Court of Appeals concluded that an assessment made subsequent to a § 6851 termination is a “deficiency” as defined by § 6211(a) of the Code and that'clearly, therefore, § 6861 must apply.
A leading case in support of defendant’s theory that: (1) the assessment authority comes from § 6201(a); (2) that plaintiff is, therefore, not entitled to a “ticket to the Tax Court;” and (3) that the maintenance of this suit is prohibited by § 7421(a), is Irving v. Gray,
supra.
That Court also thoroughly analyzed the relevant provisions but, while admitting there was some merit to the
Schreck
interpretation, came to the conclusion that the assessment authority for § 6851 was § 6201(a). The Court emphasized there was an adequate remedy at law in finding no merit to a due process argument, — that remedy being a refund action in the district court after the tax is paid. The Court also stated it felt
Schreck
had been repudiated by Williamson v. United States, 31 AFTR 2d 800 (7th Cir., 1971) (otherwise unreported), and relied on that decision to a great degree. Some of the cases in agreement with
Irving
are the following: Boyd v. United States et al., No. 73-2406 (E.D.Pa., April 16, 1974); Johnston v. Schmidt, No. 73-533-E (S.D.Cal., Jan. 30, 1974); Willits v. Richardson, 362 F.Supp. 456 (S.D.Fla.1973); Hogan v. United States, 73-2 USTC § 9563 (E.D.Mich.So.Div., 1973); Parrish v. Daly, 350 F.Supp. 735 (S.D.Ind.1972). See also Ludwig Littauer & Co. Inc. v. C.I.R., 37 BTA 840 (1938)
; Puritan Church v. Commissioner, 10 TCM 485 (1951). Some of the above courts found it unsupportable to classify an assessment subsequent to a § 6851 termination as a “deficiency” within the meaning of § 6211(a). They concluded that, since it is not a deficiency, § 6861 does not apply.
The Court is acquainted with certain due process arguments which have been raised in previous cases, though not to any great extent in the case at bar. Perhaps those arguments have been answered by Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931), and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The former case found no constitutional fault with summary proceedings used to determine and collect assessments where there is an adequate opportunity to subsequently contest the proceedings.. The latter case more recently referred to the overriding governmental interest which sometimes necessitates such summary action, (at 407 U.S. 90-92). This judge must state, however, that he shares the concern expressed by Justice Blackmun in Alexander v. “Americans United” Inc.,-U.S.-, 94 S.Ct. 2053, 40 L.Ed.2d 518, No. 72-1371, 42 U.S.L.W. 4711, 4715 (1974), over the “overwhelming power” of the IRS. For this reason, it is tempting to follow the interpretation of
Schreck.
However, this ease has come before the
Court presenting an issue which the Court believes is one of pure statutory interpretation. In that context, I must conclude that Irving v. Gray,
supra,
offers the more persuasive interpretation of the relevant provisions. I cannot define the assessment here involved as a “deficiency” within the meaning of the Code and, from its language, it appears more likely that § 6861 was intended to apply only when an assessment can be so defined. I find no other statutory exception to § 7421(a) involved here, nor has it been seriously contended that the judicial exception announced in Enochs v. Williams Packing Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962), should be considered. I find that § 7421(a) prohibits the maintenance of this suit. Perhaps Congress, in memory of an overburdened judiciary, will someday give us a Code more amenable to clear interpretation. Until then, we will continue to have responsible jurists reaching contrary conclusions on issues such as those involved here, resulting in added confusion to the operation of the tax system.
Defendant’s motion to dismiss is allowed.