The opinion of the court was delivered by: LEVET
The plaintiff, United States of America, moves for an order dismissing the five affirmative defenses and counterclaims of defendant Annabelle Webb Pearson (hereinafter "Annabelle") on the ground that they fail to state claims upon which relief may be granted and granting summary judgment in favor of the United States as to the defendant Annabelle.
The pleadings now concerned are the third amended complaint of plaintiff and the answer and counterclaims thereto made by defendant Annabelle. This complaint seeks to enforce tax liens against specific funds of the defendant Harlow S. Pearson (hereinafter "Harlow") (the taxpayer concerned) held by defendant Bankers Trust Company as co-trustee of a testamentary trust, established by the will of Edward J. Pearson, Harlow's father, of which Harlow is the present income beneficiary. The complaint alleges the creation and filing of tax liens arising from assessments against Harlow for the years 1949 through 1964. The assessments for the years 1949 through 1958 have been paid in full with prejudice and are not in question now. The assessments which the government now seeks to enforce are for the years 1959 through 1964. These assessments were made on May 21, 1965, and notices of tax liens were filed thereafter on August 3, 1965. The complaint seeks an in personam judgment against Harlow for the taxes due and an in rem judgment against the fund held by the Bankers Trust Company, that is, the accrued and accumulated income of the testamentary trust of which the defendant Harlow is the income beneficiary.
The defendant Annabelle, by answer, asserts five defenses and counterclaims which, as hereinafter explained, are based upon wholly inchoate claims. The answer also asserts cross-claims against the other defendants. The issue as between the United States and this defendant is solely whether, by virtue of her claims, she has any lien upon the specific personal property against which the United States seeks to enforce its tax liens.
Before the merits of each defense and counterclaim are discussed, three preliminary points raised by defendant Annabelle must be treated. First, relying on United States v. Acri, 109 F. Supp. 943 (D. Ohio 1952), aff'd per curiam 209 F.2d 258 (6th Cir. 1953), rev'd on other grounds 348 U.S. 211, 75 S. Ct. 239, 99 L. Ed. 264 (1955), Annabelle contends that summary judgment may not be granted against her until the validity of the government's tax liens has been affirmatively established. In United States v. Acri, supra, the district court wrote:
"Even if the court were of the opinion that there was priority in the tax lien of the Government as against the attachment lien, full summary judgment could not be granted in view of the undetermined issue of the validity and the amount of the assessment." 109 F. Supp. at 945.
The United States, however, does not seek full summary judgment against all defendants here. It seeks only an order that its liens are prior to those of Annabelle. Such an order will not prejudice any valid claims that Annabelle may have against the other defendants in this case. If the government's liens are valid and prior, Annabelle's claims against the other defendants will properly be considered subsequent to the government's liens. If the government's liens, though seemingly prior, are invalid, the defendants will be left as they were and the United States will be out of the case. In both instances, the government will have received that to which it is entitled, and Annabelle will have the opportunity to press her claims against the other defendants. But there is no sense whatsoever in allowing Annabelle to continue as a defendant as against the United States when she does not, as the government contends and as hereinafter appears, have a claim prior to those of the United States.
Second, Annabelle contends that she has standing to contest the validity of the government's assessments against her former husband, Harlow, and that, accordingly, summary judgment dismissing her defenses and counterclaims may not be granted in favor of the United States before she has had opportunity at trial to contest the validity of the tax assessments. This claim is without merit. Neither the Internal Revenue Code nor the decisions support any right of third parties to contest the merits of a tax assessment. In fact, the contrary has been decisively indicated. Falik v. United States, 343 F.2d 38, 41 (2nd Cir. 1965); Graham v. United States, 243 F.2d 919, 922 (9th Cir. 1957). In Falik, Judge Friendly wrote:
"* * * And we conclude that under the 1931 statute a junior lienor could not have questioned the essential validity of an assessment underlying a senior Government tax lien." (p. 41)
In Graham, Judge Bone wrote:
"We believe that only the taxpayer may question the assessment for taxes, and assert noncompliance by the Commissioner in sending the taxpayer a notice of deficiency by registered mail. * * * This right to review the tax deficiency assessment seems to us to be peculiarly personal to the taxpayer * * *. A tax assessment may not be collaterally attacked. Commercial Credit Corporation v. Schwartz, D.C.E.D. Ark. 1954, 126 F. Supp. 728, 730, and cases there cited. * * *" (p. 922)
Third, Annabelle contends that the United States is estopped from asserting the alleged priority of its liens because it prevented her from perfecting her liens. While it is true that on February 13, 1962 an injunction was issued against the defendant Arden H. Rathkopf from commencing or prosecuting any action or judicial proceeding in relation to the interest of Harlow in the testamentary trust involved here, no such injunction has been issued against Annabelle. Whatever reasons Annabelle may have had for not pursuing her remedies, as hereinafter appears, the United States did not prevent her from doing so. Reliance on any claim of estoppel is, therefore, misplaced.
I next proceed to the five defenses and "counterclaims" raised by defendant Annabelle to the ...