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United States v. Ross

decided: May 3, 1962.


Author: Hays

Before MEDINA, SMITH and HAYS, Circuit Judges.

HAYS, Circuit Judge.

This is an action brought by the United States under 26 U.S.C. § 7403 (1958)*fn1 to subject property of the defendant Ross to the payment of jeopardy assessments for unpaid income taxes. The corporations named as defendants have not been served with process and have not appeared in the action.

Ross appeals under 28 U.S.C. § 1292(a) (1958) from interlocutory orders (1) restraining Ross and those acting under him from transferring any of Ross's property, (2) appointing a receiver, (3) directing Ross to transfer to the receiver shares held by Ross in Ross and Company, Limited, and Central Trading, Inc. and (4) restraining Ross and those acting under him from dealing with or transferring any property of the two corporations.

Ross is a resident of Nassau, Bahamas, though a citizen of the United States. He is the principal stockholder of Ross and Company, Limited, which is a corporation organized under the law of the Bahamas, and the principal officer of Central Trading, Inc., a Liberian corporation, the stock of which is owned by Ross and Company, Limited.

An investigation by the Internal Revenue Service led to the conclusion that Ross had failed to report certain income for the years 1956 through 1959 and that there were unpaid income taxes for those years totalling more than $1,500,000. Upon receiving information that Ross had transferred from New York to Canada assets under his control which were valued at more than $600,000, the Commissioner made jeopardy assessments against Ross pursuant to 26 U.S.C. § 6861. The Commissioner thereupon brought the action in connection with which the orders now under consideration were issued.

Appellant contends

1) that in appointing a receiver the District Court abused its discretion;

2) that in directing Ross to turn over his stock, located in the Bahamas, to the receiver, the District Court exceeded its statutory authority and invaded the jurisdiction of the United Kingdom;

3) that the order restraining any dealing in property of the corporations is a "futile" attempt to assert jurisdiction over persons and assets outside the United States; and

4) that the order to Ross to turn over his stock in the two corporations violates his right against self-incrimination under the Fifth Amendment.

The appointment of a receiver was not an abuse of discretion. It was not appropriate for the District Court, nor is it appropriate for us, to determine in this preliminary proceeding whether a tax deficiency existed and the amount of that deficiency. The probable existence of a substantial tax liability is established by the Commissioner's action and by the facts on which he acted, to wit, the failure of appellant to file income tax returns for the years 1956 and 1957 and the failure to pay income taxes for the years 1956, 1957, 1958 and 1959. See Int.Rev.Code of 1954, §§ 551(a) and 552(a) (1), 26 U.S.C.A. §§ 551(a), 552(a) (1). That the collection of the deficiency is in jeopardy is apparent from the allegation, which stands undenied, that appellant has transferred a large amount of valuable assets out of the jurisdiction. These factors are sufficient to justify the appointment of a receiver. United States v. O'Connor, 291 F.2d 520, 525 (2d Cir. 1961); United States v. Peelle Co., 224 F.2d 667 (2d Cir. 1955), affirming 131 F.Supp. 341 (E.D.N.Y.1955); Florida v. United States, 285 F.2d 596, 602 (8th Cir. 1960).

The District Court's order to Ross to turn over his stock certificates to the receiver was not in excess of the court's statutory authorization. The court had personal jurisdiction over Ross, acquired by personal service of summons on his authorized agent. Personal jurisdiction gave the court power to order Ross to transfer property whether that property was within or without the limits of the court's territorial jurisdiction. See New Jersey v. City of New York, 283 U.S. 473, 482, 51 S. Ct. 519, 75 L. Ed. 1176 (1931); Massie v. Watts, 6 Cranch 148, 10 U.S. 148, 3 L. Ed. 181 (1810); Marshall v. Turnbull, 32 F. 124, 125 (C.C.E.D.N.Y.1887); S. E. C. v. Minas De Artemisa, S.A., 150 F.2d 215 (9th Cir. 1945); Restatement, Conflicts, §§ 94, 97 and Comment a (1934) (Tent.Draft No. 4 1957).

The action of the District Court in ordering appellant over whom it had jurisdiction to do an act in a foreign country does not per se involve any invasion of the sovereignty of that country. See authorities cited supra. Of course no court should order the performance of an act in a foreign country when that act will violate the foreign country's laws. In re The Chase Manhattan Bank, 297 F.2d 611 (2d Cir. 1962). The only foreign law cited by appellant is the Bahamian foreign exchange regulations which, he says, require the consent of the Controller of Exchange for the transfer of securities to persons outside the sterling area. Although there is no reason to believe that such consent would not be forthcoming on request, it seems to us wiser to provide against any possibility that any action ordered by our courts will violate ...

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