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UNITED STATES v. FIDELITY-PHILADELPHIA TRUST CO.

November 2, 1970

United States of America
v.
Fidelity-Philadelphia Trust Company, a corporation, Frank F. Truscott, George D. Kline, and Samuel Kagle


Hannum, District Judge.


The opinion of the court was delivered by: HANNUM

Hannum, District Judge.

 This is a civil action of the United States seeking to have this court determine the interest of all claimants in a fund held by the Fidelity-Philadelphia Trust Company (The Fidelity Bank).

 In this non-jury case the following allegations of the Complaint may be taken as true:

 
"1. The defendant, Fidelity-Philadelphia Trust Company, at all times hereinafter mentioned, was and still is a banking corporation duly authorized to do business in the State of Pennsylvania, and has its principal place of business in Philadelphia, Pennsylvania.
 
"2. This action has been brought with the authorization and at the request of Chief Counsel of the Internal Revenue Service, a delegate of the Secretary of the Treasury of the United States, and by the direction of the Attorney General of the United States, pursuant to the provisions of Section 7401 of the Internal Revenue Code of 1954.
 
"4. On December 1, 1961, a delegate of the Secretary of the Treasury made an assessment in the amount of $116,158.67 for 1947, 1948 and 1949 corporate income taxes, penalties and interest against O'Brian Buick, Inc., a Pennsylvania corporation, which ceased doing business in the year 1955. This assessment was made in accordance with a decision entered in the Tax Court of the United States on November 3, 1961, at Docket No. 82488, pursuant to a stipulation of the parties. The total amount of this liability now remains outstanding, together with interest and costs as provided by law.
 
"5. On November 9, 1962, a delegate of the Secretary of the Treasury made an assessment in the amount of $81,858.37 for 1946, 1947, 1948 and 1949 personal income taxes, penalties and interest against Carl H. O'Brian, now deceased. This assessment was made in accordance with a decision entered in the Tax Court of the United States on October 15, 1962, at Docket No. 82490, pursuant to a stipulation of the parties. The total amount of this liability now remains outstanding, together with interest and costs as provided by law.
 
"6. On June 14, 1963, a delegate of the Secretary of the Treasury made an assessment in the amount of $83,423.89 for 1951, 1952 and 1953 personal income taxes, penalties and interest against Carl H. O'Brian, now deceased, and his wife, Miriam O'Brian, who resides at 69 Cranmor Drive, Toms River, Ocean County, New Jersey. This assessment was made in accordance with a decision entered in the Tax Court of the United States on October 15, 1962, at Docket No. 82489, pursuant to a stipulation of the parties. The total amount of this liability now remains outstanding together with interest and costs as provided by law."

 In addition to the above uncontested facts, after trial the court finds the following facts:

 1. On August 24, 1964, a delegate of the Secretary of the Treasury of the United States served three notices of levy upon the Fidelity-Philadelphia Trust Company for the purpose of administratively collecting the outstanding tax liabilities of O'Brian Buick, Inc., Carl H. O'Brian, and Carl H. and Miriam O'Brian.

 2. On the date that federal notices of levy were served, the Fidelity-Philadelphia Trust Company was holding funds for the benefit of O'Brian Buick, Inc., Carl H. O'Brian and Carl H. and Miriam O'Brian on deposit in two accounts bearing the captions "Samuel Kagle and Frank F. Truscott, Attorney Account".

 3. The Fidelity-Philadelphia Trust Company on that date refused to pay over the funds on deposit to the United States, and has at all times thereafter refused and failed to ...


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