The opinion of the court was delivered by: LUONGO
Plaintiff, Sophie Sylk, instituted this suit seeking to enjoin the United States from exposing to sale her sole property levied upon pursuant to a tax assessment rendered against her and her husband, Albert Sylk, by the Commissioner of Internal Revenue, and seeking further to compel defendant to withdraw all levies on her property. The United States has moved to dismiss the complaint under Rule 12, F.R.Civ.P., asserting that this court lacks jurisdiction over the subject matter and that the complaint fails to state a claim upon which relief can be granted. The motion will be granted.
After being jointly assessed for certain tax deficiencies and fraud penalties by the Commissioner of Internal Revenue, Albert and Sophie Sylk petitioned the Tax Court of the United States for a redetermination of their liability for the years 1957 through 1961. On January 6, 1970, the Tax Court, upon stipulation of all parties before it, entered a final order fixing the amount of joint liability at $127,814.53. No appeal from that judgment was taken pursuant to the provisions of 26 U.S.C. §§ 7481 and 7483, and, accordingly, three months thereafter, to wit, April 1970, the judgment against the Sylks became final. Sometime thereafter, the Internal Revenue Service levied upon Sophie Sylk's sole assets to satisfy the judgment.
The problem in this case is created by the fact that on January 12, 1971, approximately nine months after the Tax Court judgment against the Sylks became final, Congress amended the Internal Revenue Code to relieve from liability for tax for deficiencies resulting from omissions from gross income in a joint return, spouses who did not know or have reason to know of the omission. This was accomplished by the enactment of § 6013 (e).
Relief from fraud penalties was granted to innocent spouses at the same time by the amendment of § 6653 (b).
(a) Subject Matter Jurisdiction.
The first ground for the government's motion to dismiss is that this court lacks jurisdiction to entertain this suit to enjoin collection of a tax by the United States. The government's contention is based upon § 7421 of the IRC which provides, in pertinent part:
"§ 7421. Prohibition of suits to restrain assessment or collection
(a) Tax. -- Except as provided in sections 6212 (a) and (c), 6213 (a), and 7426 (a) and (b) (1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."
In Enochs v. Williams Packing & Nav.Co., 370 U.S. 1, at p. 7, 82 S. Ct. 1125, at p. 1129, 8 L. Ed. 2d 292, reh. denied, 370 U.S. 965, 82 S. Ct. 1579, 8 L. Ed. 2d 833 (1962), it was stated:
See Floyd v. United States, 241 F. Supp. 996 (W.D.S.C.1965), aff'd, 361 F.2d 312 (4th Cir. 1966); Stricker v. Bickerstaff, 278 F. Supp. 460 (N.D.Okla.1968).
Plaintiff contends that this court does have jurisdiction over this suit, either under § 7426, a legislatively created exception to § 7421, or under a judicially declared exception based ...