The opinion of the court was delivered by: FREEDMAN
This is an action by the plaintiff against the District Director of Internal Revenue and the United States.
The Government has moved to dismiss. The complaint is unconventional in form and is framed not as a suit for ultimate decision but rather as an action for preliminary intervention by the court. Enough is alleged, however, to make it desirable that the substance of the claim be reached and decided.
What plaintiff seeks is an injunction against any action by the Government to collect an assessment of income taxes pending a final decision which would expunge and set aside the assessment, levy and attachment which the Government has already made on certain personal property of the plaintiff's decedent. The factual basis for this drastic relief is the claim that the Tax Court's decision,
upon which the assessment was based, is invalid because plaintiff's decedent was mentally incompetent and unrepresented by a guardian during the Tax Court proceedings. The assessment is alleged to be greatly in excess of any taxes due.
Jurisdiction is asserted under 28 U.S.C. §§ 1340 and 2410. Section 1340 is the general provision conferring upon the district courts 'original jurisdiction of any civil action arising under any Act of Congress providing for internal revenue * * *'. Section 2410 deals with actions to quiet title to real or personal property on which the United States claims a lien.
The grant by 1340 of jurisdiction in the district courts to entertain civil actions under the internal revenue laws is not of itself a waiver of governmental immunity from suit.
It merely authorizes proceedings in which the Government has by some other statutory provision consented to be sued.
Although the doctrine of sovereign immunity has been modified in modern times in recognition of the increasing effect on citizens of the operations of Government, the general principle has long prevailed unchanged that the Government is not to be balked in its tax collection by taxpayers' litigation, for this would threaten its continued operation and might even endanger its very existence.
In these circumstances Congress has necessarily come to deal with the problem of relief to taxpayers who complain that the Government's tax claims are excessive. This relief has taken two general forms. First, Congress has authorized suits by taxpayers against the United States in the district courts or the Court of Claims for the recovery of taxes which have been erroneously or illegally assessed or collected. (28 U.S.C. § 1346(a)(1)). Secondly, Congress has provided an additional remedy which a taxpayer may invoke before being required to pay the tax. Section 6213(a) of the Internal Revenue Code authorizes a taxpayer to petition the Tax Court of the United States for a redetermination of a deficiency after notice of the deficiency is given. Under this section proceedings by the United States for the collection of the tax may not be prosecuted until the decision of the Tax Court has become final, and if earlier undertaken may be enjoined by a proceeding in the proper court. Decisions of the Tax Court are reviewable exclusively by the Courts of Appeals in the same manner as decisions of the district courts in civil actions tried without a jury, and their judgments are reviewable by the Supreme Court of the United States on certiorari. (Int.Rev.Code § 7482). The procedure for relief in the Tax Court is defined with the utmost precision and the time when its decision becomes final is spelled out in meticulous detail by the statute. (Int.Rev.Code § 7481).
These are the two remedies which Congress has provided for the taxpayer in addition to the detailed administrative remedies within the Internal Revenue Service itself. The Supreme Court long ago described the general tax framework as 'a system of corrective justice intended to be complete * * *'. Snyder v. Marks, 109 U.S. 189, 194, 3 S. Ct. 157, 160, 27 L. Ed. 901 (1883). More recently, the Court declared its unwillingness to 'sacrifice the harmony of our carefully structured twentieth century system of tax litigation * * *'. Flora v. United States, 362 U.S. 145, 176, 80 S. Ct. 630, 647, 4 L. Ed. 2d 623 (1960).
Congress itself has clearly expressed its intention to make these remedies exclusive by specifically providing that, except pending notice of deficiency and petition to the Tax Court, 'no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court'. (Int.Rev.Code § 7421). This provision codifies the common law rule against the use of injunctions to restrain the assessment or collection of taxes.
Congress has also provided that once a taxpayer has sought relief in the Tax Court he may not bring suit in any court for the recovery of any part of the tax, except to enforce a final decision of the Tax Court.
(Int.Rev.Code § 6512(a)). In adopting the Federal Declaratory Judgments Act Congress specifically excepted from its provisions those controversies which relate to federal taxes. (28 U.S.C. § 2201).
The taxpayer argues, however, that a new remedy has been afforded by § 2410(a) of the Judicial Code. (28 U.S.C. § 2410(a)). By this provision the Government has consented to be sued 'in any civil action or suit in any district court, or in any State court having jurisdiction of the subject matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or personal property on which the United States has or claims a mortgage or other lien.' It was not until 1942 that the remedy of quieting title was added to the statute which theretofore had dealt only with the foreclosure of a mortgage or other lien on property on which the United States had or claimed a mortgage or other lien. The purpose of the amendment, as clearly stated in the House and Senate reports, 'is to permit the United States to be made a party defendant in cases involving foreclosure of mortgages or liens on personal property
and to provide a method to clear real estate titles of questionable or valueless Government liens.'
Its passage was recommended by Attorney General Jackson in order to protect good faith purchasers of real estate and foreclosing mortgagees.
The question whether the Government's consent to be sued, given by § 2410(a), extends to an attack upon the merits of the tax assessment itself has been considered in a number of cases. It was clearly met in Pipola v. Chicco, 169 F.Supp. 229 (S.D.N.Y.1959), where the court held that its purpose was not to permit a collateral attack on the tax assessment, but rather to waive the Government's immunity from suit so as to permit the courts to determine the relative position of the Government lien on property as against other lienors. In such proceedings the courts are necessarily required to determine whether a lien is validly filed or is entitled to payment as against other liens. But, as Judge Weinfeld said, '(permitting inquiry into) the validity of a lien, depending upon compliance or noncompliance with statutory requirements, or the priority of a lien validly filed is quire a far cry from permitting a third party
to attack the tax assessment upon which a properly filed lien is based.' (p. 232). The Court of Appeals for the Second Circuit affirmed on appeal ( Pipola v. Chicco, 274 F.2d 909 (1960)) but later, in United States v. O'Connor, 291 F.2d 520 (1961), overruled its decision.
The O'Connor case was not a proceeding under § 2410(a), but involved § 7403 of the Internal Revenue Code, which deals with actions by the United States to enforce tax liens, in which the merits of the claim are clearly involved. The Government admitted that it had erroneously argued in Pipola that the validity of an assessment could not be questioned by the taxpayer in a suit under § 7403. The discussion of the subject in O'Connor was in a strict sense advisory, for the actual point of the decision was the impropriety of the appointment of the same person as receiver and special master. (See p. 526). I believe O'Connor is correct in its conclusion that the merits of the assessment are still open to attack by the taxpayer when confronted with a suit under § 7403 by the Government to enforce collection, a conclusion which would not apply if there had already been a judicial or Tax Court determination of the question.
This, however, is a far different matter from what was actually involved in Pipola, a proceeding under § 2410(a) to remove the cloud of a tax lien on title to property. I believe the District Court's opinion in Pipola has survived as the correct interpretation of § 2410, since O'Connor overruled only an erroneous premise for the Court of Appeals' conclusion in Pipola.
I am strengthened in this by an additional consideration. Section 7403 is part of the Internal Revenue Code, whereas § 2410(a) is part of the Judicial Code and deals with all forms of liens, and not tax liens alone. Hence to construe § 2410(a) as permitting attack upon the validity of an assessment
on which a tax lien is founded would be to presume a congressional intention widely at variance with well accepted notions of the finality of judgments and their immunity from collateral attack. Such an intention is not to be attributed to Congress. It would, moreover, be utterly unjustified in the light of the legislative history which shows that the purpose of § 2410(a) was to afford a means of completely adjudicating priorities of liens and their validity against specific property where the United States is one of the lienholders but could not be joined without its consent.
Sonitz v. United States and Falik v. United States, supra note 11, hold that § 2410(a) should be construed to permit review of the merits of the assessment because such review is permissible when the taxpayer is the defendant in proceedings by the Government under § 7403. However, it is unreal to seek complete symmetry between proceedings by the Government and those against it, for this ignores the all-pervasive distinction that taxpayers are private citizens subject generally to suit, whereas the Government may be sued only with its consent. The Government, by invoking § 7403, removes its sovereign immunity from consideration, at least to the extent of its claim, whereas a taxpayer who institutes proceedings against the Government must show that his ...