there must have been an assessment of the tax against the administrators as individuals and, also, the suit must have been begun within the period during which the Government could have collected the tax assessed against the estate. This, by the provisions of Section 6502, would be six years from the assessment, or February 12, 1959. The fact that the Government did not begin this suit until ten years after the assessment of the estate tax is the basis for the defendants' argument that the suit is barred by the provisions of § 6901.
However, the Government did bring a suit against the estate on February 11, 1959, and got a judgment on July 27, 1959. That suit was timely. Thereafter, the Government could have collected the tax at any time up to July 27, 1964, since the statute of limitations in Pennsylvania for judgments (unless renewed) is five years. The merger of the liability of the estate for the estate tax in the judgment against it, if indeed it could properly be called a merger, did not extinguish the tax liability, and this suit is still a proceeding to collect a tax. 'The liability for the amount of the tax remains enforceable and unsatisfied until such time as the judgment is satisfied or barred.' United States v. Birns, D.C., 223 F.Supp. 94, 96. Thus this suit, brought within that period, would not be barred by the six year limitation even if the procedure prescribed by 6901 was the only available procedure -- which, as will appear, it is not.
The defendants also argue that, inasmuch as § 6901 incorporates by reference the collection provisions of the Internal Revenue Code, this suit will not lie, for the reason that there has been no assessment against the defendant administrators.
It has been held that Title 31 U.S.C. § 192 may be the basis for alternative proceedings to collect the tax, which will not be affected by § 6901. 'The government is correct, we think, in contending that the remedy provided by I.R.C. § 311 (I.R.C. Sec. 6901) for collection of taxes from transferees and fiduciaries is alternative and not exclusive.' United States v. Motsinger, supra, 123 F.2d 587.
The limitation that must be applied in this case is the general limitation contained in Section 6502 which provides that where an assessment has been made within the period of limitation properly applicable thereto, the tax may be collected by a proceeding in court, provided the proceeding is begun within six years after the assessment of the tax. In this case the proceeding in court against the estate was begun less than six years after the assessment of the estate tax and admittedly that assessment was timely. Therefore, the six year limitation provided by the statute did not come into effect inasmuch as the judgment of July 27, 1959, extended the time for collection, and the only bar is that which the Pennsylvania law imposes upon judgments, namely, five years from the entry of the judgment.
The defendants' motion for summary judgment is denied.
The plaintiff's motion for summary judgment is granted and judgment may be entered for the plaintiff in the amount claimed.