United States v. Royce Shoe Co., D.C.D.N.H.1956, 137 F.Supp. 786; Grand Prairie State Bank v. United States, 5 Cir., 1953, 206 F.2d 217; Investment & Securities Co. v. United States, 9 Cir., 1944, 140 F.2d 894.
The Court in turn has uncovered several cases which lend further support to the Government's position: United States v. Metropolitan Life Ins. Co., 4 Cir., 1958, 256 F.2d 17; Citizens State Bank of Barstow, Tex. v. Vidal, 10 Cir., 1940, 114 F.2d 380; United States v. Jane B. Corp., D.C.D.Mass.1958, 167 F.Supp. 352; Weir v. Corbett, D.C.W.D.Wash.1957, 158 F.Supp. 198. Nevertheless we do not view any of these cases as controlling, although they do have some weight, particularly in light of 74 P.S. § 146, which calls for that construction of the Uniform Federal Tax Lien Registration Act which will 'effectuate its general purpose to make uniform the law of those States which enact it.' Their value is somewhat diminished by the fact that the issue in this case ultimately turns upon Pennsylvania law, while the above cases involved recording statutes of various other states. It is true that Pennsylvania statute is taken from the Uniform Federal Tax Lien Registration Act, 9B Uniform Laws Annotated, and perhaps some of those cases cited involved state statutes similar to our own. However, the interpretation of this rather somewhat vaguely worded act necessarily turns on the common law of each state. Moreover, in most of the cases cited above, the issue here presented was not squarely passed upon. Some involved dictum; others were so vague in their reasoning as to be inconclusive.
The bank in turn could cite no authority in this area directly supporting the 'locus of the certificate' theory. It took a more broad approach by strenuously attacking the old common-law rule of 'mobilia sequuntur personam' as no longer the law of Pennsylvania. Relying on several scholarly works in the field of conflicts, their brief traced the history of this maxim in an attempt to illustrate its rejection in many of the more recent cases. They further cite two general groups of Pennsylvania cases, in support of their contention that the situs of an insurance policy is at the place where the writing itself is.
The first of these are the cases upholding the gift of an insurance policy by delivery of the written certificate. Wells v. Archer, 1823, 10 Serg. & R. 412; Hani v. Germania Life Insurance Co., 1900, 197 Pa. 276, 47 A. 200; General American Life Insurance Co. v. Sutch, D.C.E.D.Pa.1939, 31 F.Supp. 192. The Court is not persuaded by this line of cases since we view them as merely representing a relaxation of strict property concepts to effect the clear intent of the donor, which is generally the sole and controlling issue in gift cases.
The other cases relied upon involve the rigorous enforcement of support orders against a husband who has deserted his wife. Crane v. Crane, 1953, 373 Pa. 1, 95 A.2d 199; Luick v. Luick, 1949, 164 Pa.Super. 378, 64 A.2d 860; Jones v. Jones, 1942, 344 Pa. 310, 25 A.2d 327. The courts upheld the attachment of various intangible assets belonging to the husband, such as stocks, partnership assets, and the future interest in a trust fund, all of which were held to have a situs in Pennsylvania, although the whereabouts of the husband was either unknown or without the Commonwealth. Aside from the fact that none of these cases involved an insurance policy, it seems evident that the urgency of the situation and the strong equitable appeal of such a case called for an abandonment of theory and as vigorous an exercise of jurisdiction as due process would allow. Neither the element of urgency nor equity appears to lie with the bank here.
The law concerning the situs of a chose in action is presently unsettled. Particularly is this true with regard to the situs of an insurance policy. What may be found to constitute situs for tax purposes may not be so found for the purpose of applying a conflicts of law rule or for the exercise of jurisdiction in a support proceeding. The answer to what rule was intended to be applied in the 1929 Pennsylvania Federal Tax Recording Statute can only be determined by a calculated guess. Counsel for the bank admits that the choice of the owner's domicile was the rule favored at common law. Although this rule could of course be changed by statute, there is no evidence to show that Pennsylvania intended to do so in 74 P.S. § 141. Whatever this Court might feel is the better rule of law, in the absence of authority to the contrary, I am constrained to view the law in Pennsylvania, at least at the time 74 P.S. 141 was enacted, as that of the old common law. Reading this law into the Pennsylvania statute, it follows that the property interest in an insurance policy is situated at the domicile of the insured, which in this case is Berks County. Therefore, the Government has properly filed its tax lien in that county under the provisions of Title 26 U.S.C. § 3672(a) and must prevail here.
Practical considerations would lead us to the same result. The bank in its brief argues that to apply the common law rule would 'create commercial chaos'. We disagree. New York and Massachusetts, two of the largest commercial states in the county, have adopted this very rule by statute, so as to obviate the difficult problem with which we are faced. See §§ 240 and 241, N.Y. Lien Law, McK.Consol.Laws, c. 33; G.L.(Ter.Ed.) Mass. c. 36, § 24. The bank's reasoning would force the Federal Government to file a tax lien in every county to which the written insurance policy might be carried in order to prevail against a subsequent mortgagee, pledgee, good faith purchaser, or judgment creditor. It seems much more reasonable to ask the bank in such a situation to check the county of the insured's domicile for such liens. Indeed, it could be argued that, were the state law to require recording in any county into which the insurance certificate might by chance be taken, it would be so inimical to the Federal law of tax liens as to be unreasonable and therefore void. See Reiter v. Kille, supra. If this were so, the Federal Government would still recover here, since the facts indicate that it recorded its lien with the Clerk of the District Court for the Eastern District of Pennsylvania as well. Section 3672(a)(2) of Title 26 U.S.C.
An order for judgment in accordance with the foregoing may be submitted. If the parties cannot agree on the amount of interest to be allowed the Fidelity-Philadelphia Trust Company, the Court will resolve any differences in its final decree.
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