being effective under Pennsylvania law as to subsequent execution or attaching creditors. The government takes the position that its lien dates from the date the respective assessment lists were received by the Collector, which was prior to the assignment. The defendants were, therefore, obliged upon demand to turn the fund over to the Collector of Internal Revenue, and having failed to do so are liable to the extent of the fund, plus interest and costs, in accordance with 26 U.S.C.A. § 3710.
Section 3670 of the Internal Revenue Code, 26 U.S.C.A. § 3670, provides:
'If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount 'including any interest, penalty, additional amount, or addition to such tax, together with any costs the may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.'
Section 3671 of the Internal Revenue Code, 26 U.S.C.A. § 3671, provides:
'Unless another date is specifically fixed by law, the lien shall arise at the time the assessment list was received by the collector and shall continue until the liability for such amount is satisfied or becomes unenforceable by reason of lapse of time.'
This latter section specifically provides that the Government's lien arises at the time the assessment list is received by the Collector, 'unless another date is specifically fixed by law * * *' Section 3672 of the Code, 26 U.S.C.A. § 3672, does fix another date as to certain types of security interests. It provides:
'(a) Invalidity of lien without notice. Such lien shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the collector --
'(1) Under State or Territorial laws. In the office in which the filing of such notice is authorized by the law of the State or Territory in which the property subject to the lien is situated, whenever the State or Territory has by law authorized the filing of such notice in an office within the State or Territory'.
The burden is upon the intervening defendant to prove that he comes within the class of 'mortgagee, pledgee, purchaser, or judgment creditor'. MacKenzie v. United States, 9 Cir., 109 F.2d 540; Filipowicz v. Rothensies, D.C., 43 F.Supp. 619.
The assignee does not, in the instant case, come within any of the categories described in Section 3672(a). The assignment in January, 1952, was for a past due consideration, and, consequently, the assignee would not be considered a purchaser within the recording acts. Filipowicz v. Rothensies, supra. Therefore, Section 3671 is applicable, and the government's lien was effective from the date the assessment lists were received by the collector, which was prior to the assignment. Intervening defendant's motion for summary judgment must be denied.
There remains the further question as to the proper disposition of the case, since the government has not made a cross-motion for summary judgment. If the plaintiff had made such a motion, it is clear that it would be entitled to summary judgment. As the purpose of the summary judgment procedure under Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., is to expedite the disposition of cases in which there is no genuine issue as to any material fact requiring trial, the Court may properly enter summary judgment in favor of the party entitled to it. Northland Greyhound Lines v. Amalgamated Ass'n of St. Elec. Ry. and Motor Coach Emp. of America Division 1150, D.C.Minn. 1946, 66 F.Supp. 431.
Summary judgment will be entered for the plaintiff in the sum of $ 2,736 with interest as provided by law.
An appropriate order will be entered herewith.
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