United States District Court, Northern District of Illinois, E.D
July 20, 1971
DENNIS STARR, PLAINTIFF,
JOSEPH SALEMI AND UNITED STATES OF AMERICA, DEFENDANTS.
The opinion of the court was delivered by: McGARR, District Judge.
MEMORANDUM OPINION AND ORDER
The facts giving rise to this cause are as follows. On August
12, 1970, there was filed with the Recorder of Deeds of DeKalb
County, Illinois, a notice of federal tax lien as to all property
belonging to plaintiff Dennis Starr, reciting an unpaid
assessment of $15,300. This assessment arises under 26 U.S.C.
Section 4741 as an excise tax on a marihuana transfer. On or
about October 19, 1970, plaintiff filed his complaint in replevin
in the Circuit Court of DeKalb County seeking forty $100 bills of
United States currency, $651.63 United States currency and
miscellaneous personal property items which, it was alleged, were
wrongfully detained by defendant Joseph Salemi, Deputy Sheriff of
DeKalb County. A writ of replevin thereafter issued and was
returned unexecuted when defendant Salemi posted the required
bond. On November 10, 1970, a notice of levy of the United States
was served on the Sheriff of DeKalb County pursuant to said tax
lien and on November 12, 1970, plaintiff amended the replevin
complaint theretofore filed in the County Court to include the
United States as defendant. The action was then removed to this
court by the United States pursuant to 28 U.S.C. §§ 1441,
1442, and 1444.
Plaintiff's first amended complaint now before this court in
addition to relief in replevin, asks for an injunction to issue
restraining the Director of Internal Revenue for the Chicago
District from seizing, restraining, levying upon or in any way
interfering with plaintiff's property, that the court order
Joseph Salemi to deposit the money and property he now holds with
the Clerk of the Court, and that judgment be entered against
Salemi in the amount of $5,000.
This case is now before the court on defendant United States'
motion to dismiss for failure to state a claim upon which relief
can be granted, and because the court lacks jurisdiction of the
subject matter of this lawsuit. The government has also moved for
an order quashing the writ of replevin heretofore issued by the
Clerk of the Circuit Court for the Sixteenth Judicial Circuit,
DeKalb County, Illinois.
Upon service of the notice of levy on the DeKalb County
Sheriff, the property held is deemed constructively seized. See
United States v. Cameron Construction Co., 246 F. Supp. 869
(S.D.N.Y. 1965). Accordingly, the government contends that being
so detained, the property in question cannot be the subject of a
replevin suit. Title 28, U.S.C. § 2463 provides:
All property taken or detained under any revenue law
of the United States shall not be repleviable, but
shall be deemed to be in the custody of the law and
subject only to the orders and decrees of the courts
of the United States having jurisdiction thereof.
In the leading case interpreting Section 2463, the Supreme
Court, after analyzing its history, held that the plain object of
the legislation was to prohibit state authorized seizures of
property detained or levied upon by federal officers. New
Hampshire Fire Ins. Co. v. Scanlon, 362 U.S. 404
, 80 S.Ct. 843,
4 L.Ed.2d 826 (1960). It further held that this section applied
to like actions in the federal court. On the basis of this
decision, it is clear that the Circuit Court of DeKalb County was
without jurisdiction of the subject matter described in the writ.
To the extent that the state court was without subject matter
jurisdiction, the district court upon removal acquires none and
should dismiss said claims without prejudice. Federal Savings and
Loan Corp. v. Quinn, 419 F.2d 1014
(7th Cir. 1969).
It is the government's contention, however, notwithstanding
jurisdiction of the parties acquired on removal, that all the
relief sought by plaintiff in this case is barred by 26 U.S.C.
7421(a), which provides in pertinent part:
* * * 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
such person is the person against whom such tax was
In Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82
S.Ct. 1125, 8 L.Ed.2d 292 (1962), the Supreme Court stated "the
manifest purpose of § 7421(a) is to permit the United States to
assess and collect taxes alleged to be due without judicial
intervention, and to require that the legal right to the disputed
sums be determined in a suit for refund." Accordingly, with the
exception of special and narrowly defined circumstances not
present here (see Pizzarello v. United States, 2 Cir.,
408 F.2d 579, cert. den., 396 U.S. 986, 90 S.Ct. 481, 24 L.Ed.2d 450
), this section prohibits injunctive actions that interfere
in the collection of federal taxes. Where the plaintiff seeks
replevin of property seized and an order requiring that the
property be returned, I conclude the effect of the relief sought
is sufficiently similar to "restraining an assessment" as to be
encompassed by Section 7421(a). Also, see Calafut v. Commissioner
of Internal Revenue, D.C., 277 F. Supp. 266 (1967).
Plaintiff's allegations regarding his liability for the
assessment, the constitutionality of the statutes in question,
and alleged improprieties in the notice given are, it follows,
improperly raised in this proceeding. Jewel Shop of Abbeville,
South Carolina v. Pitts, 4 Cir., 218 F.2d 692 (1955); Harvey v.
Early, 4 Cir., 160 F.2d 836 (1947).
For the foregoing reasons, it is ordered that the writ of
replevin issued by the Clerk of the Circuit Court for the
Sixteenth Judicial Circuit, DeKalb County, Illinois, be and said
writ hereby is quashed. The motion of the United States to
dismiss is granted. The remaining prayer for money damages
against Joseph Salemi standing alone is insufficient to support
this court's jurisdiction and, accordingly, this lawsuit is
hereby ordered dismissed.
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