The opinion of the court was delivered by: LEVET
This is a motion made by the plaintiff in the above-entitled matter for an order enjoining and restraining the above-named defendant during the pendency of this action from asserting and enforcing a lien against any of the property or rights to property of the plaintiff under or pursuant to a jeopardy assessment made by the defendant against the plaintiff and from levying upon or seizing and otherwise disposing of property of the plaintiff under or pursuant to such jeopardy assessments.
In the complaint, verified by Joseph Dermer, president, the plaintiff- corporation, publisher of the 'Daily Worker' and other newspapers, seeks a declaratory judgment invalidating the jeopardy assessment of deficiencies in its income taxes for the years 1951 and 1952 and invalidating the defendant's levy upon the property of the plaintiff made pursuant to such jeopardy assessment. The complaint also seeks a mandatory injunction to restrain the defendant from levying on any of the plaintiff's properties pursuant to the assessment and a mandatory injunction directing the defendant to cancel the notices of lien of the United States filed pursuant to the assessment and a money judgment against defendant in the amount of $ 5,377.78.
The allegations of the complaint cite the First and Fifth Amendments of the United States Constitution. The plaintiff contends:
(1) That there was no basis for a belief by the defendant that the collection of any deficiency tax from the plaintiff would be jeopardized, and that, consequently, defendant violated the provisions of Title 26 U.S.C.A. 6213(a) and abused the power and discretion vested in defendant by Title 26 U.S.C.A. § 6861(a).
(2) That the defendant levied without notice, as required by Title 26 U.S.C.A. § 6212(a) and 6331(a).
(3) That defendant's levy upon the plaintiff was not for the purpose of assuring or collecting a tax, but to prevent the plaintiff from publishing its newspapers and was an abuse of the power and discretion confided in defendant by Title 26 U.S.C.A. 6213(a), 6331(a) and 6861(a).
(4) That the seizure of plaintiff's funds, property and assets and further levies threatened by the defendant will prevent and destroy the publication of plaintiff's newspapers.
(5) That plaintiff is not subject to further or any income tax assessments for the following reasons:
(a) That plaintiff's annual expenses always exceeded the gross income;
(b) That plaintiff's deficits were always supplied by gifts through fund-raising campaigns;
(c) That plaintiff duly filed income tax returns for the years in question;
(d) That plaintiff has done nothing and contemplates doing nothing which would jeopardize the alleged deficiency assessment;
(e) That the defendant has erroneously treated gifts to plaintiff as income because of lack of records of donors and that such ...