From Casetext: Smarter Legal Research

King v. Gilbert

United States Court of Appeals, Fifth Circuit
Mar 10, 1978
569 F.2d 398 (5th Cir. 1978)

Summary

Rejecting the assertion of trustee in a corporate reorganization that the anti-assignment statute rendered the assignment of a tax refund invalid and noting the Supreme Court's view that as between private parties, effect may still be given to an assignment which was not in compliance with the Claims Act

Summary of this case from Matter of Topgallant Lines, Inc.

Opinion

No. 77-2750. Summary Calendar.

Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, 410-14, Part I.

March 10, 1978.

Frank B. Wilensky, Charles E. Lamkin, Atlanta, Ga., for plaintiff-appellant.

Floyd E. Siefferman, Jr., Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before MORGAN, CLARK and TJOFLAT, Circuit Judges.



This case is affirmed on the basis of the district court's opinion, reported at 445 F. Supp. 479 (N.D.Ga. 1978), with the following additional observations. The appellant claims that the federal anti-assignment statute renders the assignment of the tax refund invalid. This is erroneous. The Supreme Court in Segal v. Rochelle, 382 U.S. 375, 86 S.Ct. 511, 517, 15 L.Ed.2d 428 (1966), has stated that section 203 was enacted to protect the federal government from conflicting claims and that "between the [private] parties effect might still be given to an assignment that failed to comply with the statute." The appellant claims that under Georgia law the tax refund could not be assigned because it was not property in existence at the time of the assignment. That is an incomplete statement of the law of Georgia. In an equity proceeding, such as bankruptcy, the assignment of a contingent right will be enforced. When the contingency is realized, the right to the property attaches as of the time of the assignment. Cf. Kolb v. Berlin, 356 F.2d 269, 272 (5th Cir. 1966) (and Georgia cases cited).

AFFIRMED.


Summaries of

King v. Gilbert

United States Court of Appeals, Fifth Circuit
Mar 10, 1978
569 F.2d 398 (5th Cir. 1978)

Rejecting the assertion of trustee in a corporate reorganization that the anti-assignment statute rendered the assignment of a tax refund invalid and noting the Supreme Court's view that as between private parties, effect may still be given to an assignment which was not in compliance with the Claims Act

Summary of this case from Matter of Topgallant Lines, Inc.

recognizing that as between private parties, noncompliance with the Act does not affect assignment

Summary of this case from In re Robert E. Derecktor of Rhode Island, Inc.
Case details for

King v. Gilbert

Case Details

Full title:JOHN L. KING, TRUSTEE IN REORGANIZATION OF GILCOR ENTERPRISES, INC.…

Court:United States Court of Appeals, Fifth Circuit

Date published: Mar 10, 1978

Citations

569 F.2d 398 (5th Cir. 1978)

Citing Cases

In re Chipman-Union, Inc.

The Fifth Circuit Court of Appeals ruled against the trustee and stated, in part: 569 F.2d 398 (5th Cir.…

Sims' Crane Serv., Inc. v. Reliance Ins. Co.

American Casualty Co. v. Irvin, 426 F.2d 647, 650 (5th Cir. 1970); see Barge Co., Inc. v. Oakwood, 128 Ga.…