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Tavares v. United States

United States Court of Appeals, Ninth Circuit
Jan 30, 1974
491 F.2d 725 (9th Cir. 1974)

Summary

In Tavares v. United States, 491 F.2d 725 (9th Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975), we held that a judicial hearing was not required prior to a taking of the taxpayer's property.

Summary of this case from Towe Antique Ford Foundation v. Internal Revenue Service

Opinion

No. 72-1427.

January 30, 1974.

Howard William Bailey, Fresno, Cal., for plaintiffs-appellants.

Dwayne Keyes, U.S. Atty., William R. Allen, Carolyn Just, U.S. Atty., Richard V. Boulger, Asst. U.S. Atty. in Charge, Fresno, Cal., Michael C. Durney, Meyer Rothwacks, Chief, Appellate Section, Scott P. Crampton, Asst. Atty. Gen., U.S. Dept. of Justice, Tax Div., Washington, D.C. for defendant-appellee.

Appeal from the United States District Court for the Eastern District of California.

Before MERRILL and WRIGHT, Circuit Judges, and KING, District Judge.

Honorable Samuel P. King, United States District Judge for the District of Hawaii, sitting by designation.


Appellants-taxpayers protest the levy of the Internal Revenue Service upon bank accounts pursuant to notice of assessment following deficiency notice, all strictly in accordance with 26 U.S.C. § 6331. Appellants contend that Sniadach v. Family Finance Corporation, 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969), requires that a judicial hearing be had prior to the taking of their property. The District Court ruled against this contention and granted summary judgment for the United States. We affirm.

The issue is foreclosed by Phillips v. Commissioner of Internal Revenue, 283 U.S. 589, 51 S.Ct. 608, 75 L.Ed. 1289 (1931). There it was stated:

"The right of the United States to collect its internal revenue by summary administrative proceedings has long been settled. Where, as here, adequate opportunity is afforded for a later judicial determination of the legal rights, summary proceedings to secure prompt performance of pecuniary obligations to the government have been consistently sustained."

283 U.S. at 595, 51 S.Ct. at 611. And, later:

"[T]he right of the United States to exact immediate payment and to relegate the taxpayer to a suit for recovery, is paramount."

283 U.S. at 599, 51 S.Ct. at 612.

As recently as 1972 the Supreme Court has noted the distinction between Sniadach, which involved a private creditor, and Phillips, indicating that the former cast no doubt on the continued force of the latter. Fuentes v. Shevin, 407 U.S. 67, 90-92, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).

Judgment affirmed.


Summaries of

Tavares v. United States

United States Court of Appeals, Ninth Circuit
Jan 30, 1974
491 F.2d 725 (9th Cir. 1974)

In Tavares v. United States, 491 F.2d 725 (9th Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1120, 43 L.Ed.2d 394 (1975), we held that a judicial hearing was not required prior to a taking of the taxpayer's property.

Summary of this case from Towe Antique Ford Foundation v. Internal Revenue Service
Case details for

Tavares v. United States

Case Details

Full title:CLEMENT A. TAVARES AND ALICE B. TAVARES, PLAINTIFFS-APPELLANTS, v. UNITED…

Court:United States Court of Appeals, Ninth Circuit

Date published: Jan 30, 1974

Citations

491 F.2d 725 (9th Cir. 1974)

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