491 F2d 725 Tavares v. United States

491 F.2d 725

74-1 USTC P 9240

Clement A. TAVARES and Alice B. Tavares, Plaintiffs-Appellants,
UNITED STATES of America, Defendant-Appellee.

No. 72-1427.

United States Court of Appeals, Ninth Circuit.

Jan. 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.

Before MERRILL and WRIGHT, Circuit Judges, and KING,1 District judge.


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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:


'The 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).

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Judgment affirmed.


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