decided: October 26, 1962.
MICHAEL AND BETTY T. KEARNEY, PLAINTIFFS-APPELLANTS,
HAROLD B. A'HEARN, FORMER DISTRICT DIRECTOR OF INTERNAL REVENUE FOR THE FORMER UPPER MANHATTAN DISTRICT OF NEW YORK, KENNETH W. MOE, FORMER DISTRICT DIRECTOR OF INTERNAL REVENUE FOR THE FORMER UPPER MANHATTAN AND PRESENT MANHATTAN DISTRICT OF NEW YORK, AND THE UNITED STATES OF AMERICA, DEFENDANTS-APPELLEES.
Before WATERMAN, HAYS and MARSHALL, Circuit Judges.
This is an appeal from a judgment of the United States District Court for the Southern District of New York, Levet, J., granting the motion of defendants-appellees for summary judgment, and denying the motion of plaintiffs-appellants for an injunction pending appeal and for leave to file a second amended complaint 210 F. Supp. 10. Appellants' action pursuant to 28 U.S.C.A. § 1346(a) sought an injunction against the District Director of Internal Revenue restraining him from collecting an income tax deficiency for the taxable year 1953; a writ of mandamus requiring the District Director to issue a statutory deficiency notice; and a monetary judgment for $475.95 with interest and costs.
Appellants' 1953 income tax return, filed after a 90-day extension had been granted, showed on its face that taxes totalling $404.91 had been withheld and that a tax of $4,136.97 was due and owing. The Government sent appellants a notice of a mathematical error which decreased the tax due by $200. The District Director did not issue a deficiency notice.On May 16, 1961, appellants received a notice from the Government that unless the 1953 tax liability was paid within ten days levy and seizure of their property could result. Appellants then brought the present action. Their claims were denied in two opinions by Judge Levet as yet unreported. We find no merit in any of appellants' claims and affirm on the two opinions of the trial judge.
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