September 18, 1978
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT
EQUITABLE LIFE ASSURANCE COMPANY OF THE UNITED STATES, DEFENDANT-APPELLEE.
Before FEINBERG, MANSFIELD and SMITH, Circuit Judges.
This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by counsel.
On Consideration Whereof, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is affirmed substantially for the reasons stated by Judge Griesa in his opinion dated December 30, 1977 and by the United States Court of Appeals for the 5th Circuit in United States v. Prudential Ins. Co. of America, 461 F.2d 208 (1972). The argument that the government could reach the cash loan value of the policy ninety days after the levy by exercising Option (a) of the contract was not dealt with by the district judge, presumably because the argument was only tangentially suggested in the affidavit supporting plaintiff's motion for relief from judgment. See Joint Appendix A35. This argument is without merit because it would ascribe to the government full ownership rights under 26 U.S.C. § 6332(b), which Congress did not intend it to have. In addition, exercise of such ownership right would drastically reduce the amount of insurance coverage, a result also not intended by Congress.
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