The opinion of the court was delivered by: JUDD
Defendant has moved on jurisdictional grounds to dismiss a complaint which seeks to enjoin the government from levying against plaintiff's salary and real property for taxes assessed against corporations which plaintiff asserts were owned and managed by her parents, and to recover judgments for amounts already collected from her salary.
The contentions of the parties appear from the complaint, answer, affidavits on a prior motion for injunction, and affidavits and memorandum on the present motion. The motion should be considered on the assumption that plaintiff will be able to prove the allegations which she makes.
Plaintiff's parents, Morris Gordon and Sara Gordon, were the owners, directors and officers of Pyramid Flooring Corporation and two other corporations in the flooring business. The corporations failed to pay federal withholding taxes of various sorts amounting to over $4,000.
Plaintiff asserts that she was not an officer, director or stockholder of any of the corporations. A bank signature card on one corporate account listed "H. Gordon" as president and treasurer and the signature "H. Gordon" appeared on the card, but plaintiff asserts that she did not know of the resolution, that the signature is not in her handwriting, and that she did not authorize anyone to place her signature there.
Plaintiff is employed as a secretary in a corporation located in Manhattan. She owns a house on Bessemund Avenue in Far Rockaway in which her parents live. She acquired it by deed dated October 22, 1966 from Melvin and Sylvia Horowitz. The consideration indicated by the tax stamps was $12,500 above a first mortgage of $17,600. She immediately placed a second mortgage of $10,000 on the property in favor of one Harry Krasner.
Defendant asserts that the transfer of the house was made without consideration in order to defraud creditors, including the United States. Plaintiff's parents lived in the house at the time plaintiff acquired it. The government apparently bases its claim against the plaintiff on I.R.C. §§ 6671 and 6672, providing for assessments due to the failure by corporate officials to pay certain corporate taxes.
A notice of levy was filed with plaintiff's employer, resulting in the collection of $189.00; and a notice of seizure was filed against her property. Further collections from her pay and further steps for foreclosure of the lien on the house have been held in abeyance pending the determination of this motion.
The notice of levy gives the name "Helen Gordon" under the caption, "Taxpayer." There is no showing of an assessment having been made against her personally as a taxpayer.
A limitation on the federal court's jurisdiction to entertain suits to restrain the collection of federal taxes is set forth in Section 7421 (a) of the Internal Revenue Code of 1954, which reads:
"(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 ...