Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and FORMAN, Circuit Judges.
After attempting unsuccessfully to make an arrangement under Chapter XI of the Bankruptcy Act, as amended, 11 U.S.C.A. § 701 et seq., Fidelity Tube Corporation was adjudicated a bankrupt on February 9, 1954. In the ensuing proceedings the United States filed a claim covering taxes in three categories*fn1 One category consisted of claims in respect to which assessments and demands had been made prior to the adjudication. The second category consisted of claims in respect to which assessments had been made prior to bankruptcy but as to which demands, if any, were made after the adjudication. The third category consists of claims in respect to which assessments and demands were made after adjudication. The United States concedes that it does not have a lien as to the claims described in the third category set out above. As to the claims in the first and second categories, the United States asserts that it is a lien creditor for reasons stated hereinafter. The trustee contends as to the claims in categories one and two as stated above that they were not claims secured by liens but were entitled to priority only under Section 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(4).
The Referee held that the trustee was a "judgment creditor" within the purview of Section 3672 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3672*fn2 and that therefore recording of notice was a prerequisite if the claims of the United States were to be accorded liens valid against the trustee. It was conceded by the United States that no notice was filed as required by Section 3672 and the Referee accordingly gave the claims of the United States, as stated above, priority only under Section 64, sub. a(4) of the Bankruptcy Act. A petition for review was filed by the United States. The court below reversed the Referee. See 1958, 167 F.Supp. 402. The trustee has appealed.
Section 3670 of the Internal Revenue Code of 1939 provides that the United States shall have a lien on all property and rights to property belonging to any person liable to pay any tax who refuses to pay such tax on demand. Section 3671 states that the lien shall arise at the time of the assessment and shall continue until the liability is satisfied or becomes unenforceable by reason of lapse of time.
Section 3672(a) provides for the filing of notice if liens are to be valid as against mortgagees, pledgees, purchasers, or judgment creditors.*fn3
The trustee contends that Section 70, sub. c of the Bankruptcy Act, 11 U.S.C.A. § 110, sub. c, gives the trustee a status equivalent to that of a judgment creditor, i.e., a creditor who has obtained a judgment in a court of record.*fn4 The United States contends that under Section 70, sub. c the trustee is a "fictitious" judgment creditor, not the equivalent of one who has obtained a judgment in a court of record and therefore the trustee is not entitled to prevail against the United States.
We are confronted, therefore, in respect to the claims in category one, with a conflict between two federal policies. On one side there is the congressional intent to give the United States maximum assistance in collecting revenues. This intent is embodied in the lien laws set out in Sections 3670-3672 of the Internal Revenue Act of 1939. Opposing this is the policy of increasing the size of a bankrupt's estate available to unsecured creditors as expressed by Section 70, sub. c and other sections of the Bankruptcy Act. The court below concluded that United States v. Gilbert Associates, 1953, 345 U.S. 361, 73 S. Ct. 701, 97, L. Ed. 1071, and other authorities required this conflict to be resolved in favor of the United States.*fn5 The appeal at bar followed. But aside from the issue as to the trustee's status as judgment creditor there is another question which must be determined: viz., whether the claims of the United States falling in category two are secured by liens. This question is whether the fact that the District Director filed claims with the Referee can be considered compliance with the demand requirement of Section 3670 of the Internal Revenue Code.*fn6 We will deal with this question first.
The Referee in his decision, under the heading "Findings of Fact", stated the following: "The United States Treasury Department also proved that its claims have a lien status under 26 U.S.C. §§ 6321 and 6322,*fn7 but such claims were not filed or recorded as required by 26 U.S.C. § 6323 in order to make them effective as against judgment creditors." This is not a finding of fact but is a conclusion of law. The Referee did not pass specifically on the issue of whether the United States made demand for payment though perhaps the decision of this issue was inherent in his order. Under the Referee's view of the law it was not necessary that he discuss this question for if the trustee had the status of a creditor who had procured a judgment, the claims of the United States were not entitled to prevail against the trustee.
It is apparent that the issue of demand for payment was argued before the Referee since it was discussed in the briefs of the parties. The Trustee and the Borough of East Newark did not seek a review of the decision of the Referee on this point and therefore the finding of the Referee reached the court below unchallenged. But we cannot perceive how the trustee or the Borough could have appealed from the Referee's decision on the demand point since the order of the Referee was in their favor. We cannot tell on the instant record whether or not the issue of demand was argued before the trial judge on the hearing on the petition for review since we do not have the briefs or a record of the oral argument before us. But in its opinion, 167 F.Supp. at page 403, the court below stated that "Its [the United States'] lien is valid and is entitled to payment out of available proceeds prior to a distribution to priority claimants." The trial judge reversed the Referee on the issue of the status of the trustee as judgment creditor and remanded the cause for proceedings not inconsistent with his opinion. We are of the opinion that the issue of the demand by the United States for payment of the claims in category two was before the court below and was adjudicated in favor of the United States. It would therefore appear to be before this court for adjudication on this appeal.
We must therefore decide three questions: (1) was a demand made by the United States for payment of its claims in the second category in conformity with Section 3670 of the Internal Revenue Code of 1939; (2) if a demand was validly made, is the United States entitled to prevail as a lien claimant on the claims under the second category against the trustee and the Borough; and (3) is the United States entitled to prevail against the trustee and the Borough on its claims in the first category? The second and third questions will be determined by identical principles of law.
As to question (1) as set out in the preceding paragraph, it is clear that assessments were made on the claims in the second category before bankruptcy but demands for payment, if any, were made after adjudication and then only by the filing of formal claims for payment by the Collector with the Referee in Bankruptcy. If such claims would otherwise meet the requirements of Section 3670 of the Internal Revenue Code do the intervening bankruptcy proceedings render inoperative the provisions of Section 3671 which ordinarily would confer lien status.
As we have stated Section 3670 provides that when a person liable to pay a tax neglects or refuses to pay it "after demand" a lien arises in favor of the United States. Section 3671 provides in pertinent part: "Unless another date is specifically fixed by law, the lien shall arise at the time the assessment list was received by the collector * *." It is the contention of the United States that the filing of the claims with the Referee by the Collector were effective demands and that these demands relate back to the time of the assessment, admittedly prior to the adjudication. In respect to the filing of a claim in a bankruptcy proceeding as constituting an effective demand we find a helpful analogy in the decision of the Court of Appeals for the Seventh Circuit in United States v. Ettelson, 1947, 159 F.2d 193, 196. In that case a claim was filed with a Probate Court against the estate of the deceased taxpayer and this was treated by Circuit Judge (later Mr. Justice) Minton as the equivalent of the demand required by Section 3670. In the case at bar as in Ettelson, the demand for payment was made at the only place that it could be made, i.e., in the bankruptcy proceeding.*fn8 Compare, however, In re Crockett, D.C.N.D.Cal.1957, 150 F.Supp. 352, which holds by inference that a claim for taxes by the United States in a bankruptcy proceeding is not a demand within the meaning of Section 3670. See and compare also Sherman B. Ruth, Inc. v. O.S.V. The Marie and Winifred, D.C. Mass.1957, 150 F.Supp. 630, 632; In re Holdsworth, D.C.N.J.1953, 113 F.Supp. 878, 879, and 9 Mertens, Law of Federal Income Taxation § 54.40.We have carefully considered these authorities but we think that logic compels us to follow the holding of the Court of Appeals for the Seventh Circuit in Ettelson. It is clear that if bankruptcy had not intervened the United States would have had a valid lien if demand was made prior to the date when the assessment became unenforceable by reason of lapse of time and we can find no provision of the Bankruptcy Act which would prevent a lien arising in favor of the United States under Sections 3670 and 3671 because of a delayed demand by the District Director.
In view of the provisions of Section 3671 an inchoate lien seems to arise at the time of the assessment which is perfected by a demand and when the demand is made the lien relates back to the date of the assessment, in the case at bar to a time prior to bankruptcy. Plumb, Federal Tax Collection and Lien Problems (Second Installment), 13 Tax L. Rev. 459, 488 (1958) states: "Furthermore, even if notice and demand have not been made before bankruptcy, they may be made thereafter and will relate back to perfect the lien arising upon the prior assessment." See also Macatee, Inc. v. United States, 5 Cir., 1954, 214 F.2d 717, 719.*fn9
This brings us to the second and third questions posed above, which as we have said, are governed by identical principles of law. Is the trustee in bankruptcy a "judgment creditor" within the purview of Section 3672? Our ruling must turn in large part upon an interpretation of the decision in United States v. Gilbert Associates, supra. In the Gilbert case the Supreme Court was confronted with the problem of priority between a federal tax lien and a tax lien of the Township of Walpole, New Hampshire, assessed before the recording of the federal lien. The Supreme Court of New Hampshire held that under the law of that State the assessment of such a tax was in the nature of a judgment and that the Township was a judgment creditor within the meaning of Section 3672 of the 1939 Code. See Petition of Gilbert Associates, Inc., 1952, 97 N.H. 411, 90 A.2d 499. The Supreme Court of the United States disagreed, holding that judgment creditor status created by a fiat of state law was not within the meaning of the phrase "judgment creditor" as used in Section 3672. Cf. United States v. Acri, 1955, 348 U.S. 211, 75 S. Ct. 239, 99 L. Ed. 264. Relying on the Gilbert decision, the Second and Ninth Circuits respectively held that a trustee in bankruptcy was not a "judgment creditor" under Section 3672. Brust v. Sturr, 2 Cir., 1956, 237 F.2d 135;*fn10 United States v. England, 9 Cir., 1955, 226 F.2d 205.
The trustee in the instant case argues that the Supreme Court's decision in Gilbert was motivated by a desire to procure uniformity among the States in determining questions relating to priority of payment of lien claims and that the Supreme Court ruled as it did because it feared that if each State was left free to designate who was or who was not a "judgment creditor" under their respective laws there would be lack of uniformity. The trustee contends that under Section 70, sub. c of the Bankruptcy Act there is no danger of heterogeneity since we are construing federal and not State law and that therefore the Gilbert decision is not apposite. But the Supreme Court stated, 345 U.S. at page 364, 73 S. Ct. at page 703 "In this instance, we think that Congress used the words 'judgment creditor' in § 3672 in the usual, conventional sense of a judgment of a court of record since all states have such courts." This language is decisive.It is true that the authorities cited do not deal with the interrelationship of the Internal Revenue Code with the Bankruptcy Act but we fail to see how the term "judgment creditor" can be given separate, decisive meanings based on the circumstances of the individual case.
We must concede that strong authority takes a contrary position particularly in view of the amendments effected to Sections 70, sub. c of the Bankruptcy Act in 1950 and 1952. See 64 Stat. 26 and 66 Stat. 429. Section 70, sub. c, 11 U.S.C.A. § 110, sub. c, as it now exists and as it existed at the time of the adjudication in the instant case provides: "The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists."
The legislative history indicates that it was the intention of Congress by the 1950 and 1952 amendments to expand the rights of a trustee in bankruptcy generally but the legislative history itself as well as the amendatory statutes leave in doubt the status of the trustee as a judgment creditor under the Internal Revenue Code. But see 4 Collier, Bankruptcy 70.49 n. 3.
Moreover, there is presently pending in Congress a bill, H.R. 7242, which purports to remove any question as to the status of the trustee as a judgment creditor. See H.Rept. 745, 86th Cong., 1st Sess. p. 10. The report contains a lucid legislative history of Section 70, sub. c of the Bankruptcy Act. It is proposed by the bill to give the trustee the status of a creditor who has obtained a judgment against the bankrupt on the date of bankruptcy whether or not such creditor exists. We are of the opinion that the statute must be amended before a trustee in bankruptcy can prevail against the United States under circumstances similar to those at bar.
In the light of all the circumstances and the present state of the law we are constrained to agree with the judgment of the court below and we conclude, therefore, that the United States is entitled to prevail against the trustee and the Borough of East Newark on the issues presented. We do not find it necessary to pass on the issues which might have arisen under Section 67, sub. c, read in conjunction with Section 64, sub. a, clauses (1) and (2), of the Bankruptcy Act, 11 U.S.C.A. §§ 107, sub. c and 104, sub. a, clauses (1) and (2), for no such issue is presented by the present record.*fn11 Accordingly the judgment will be affirmed.
KALODNER, Circuit Judge (dissenting).
I would reverse the judgment of the District Court.
Stripped down to its essence the majority's holding is that a trustee in bankruptcy does not have the status of a "judgment creditor" by virtue of the provisions of Section 70, sub. c of the Bankruptcy Act as amended in 1952.*fn1 While the majority does not say so in so many words, that it is the core of its holding that a trustee in bankruptcy is not a "judgment creditor" within the meaning of Section 3672 of the Internal Revenue Code of 1939.
In my view there just cannot be two varieties of a "judgment creditor" under separate federal statutes which relate to such creditors. A "judgment creditor" cannot be "fish" under one federal statute and "fowl" under another. Nor does a bankruptcy trustee have a dual personality - that of a "judgment creditor" in one room of the federal legislative structure and a total absence of it in another room of the same structure.
The majority's holding seriously interferes with the administration of the bankruptcy laws because it destroys the centuries-old concept of the common law and equitable jurisprudence which says that one who has levied attachment or execution is a judgment creditor and Section 70, sub. c specifically vests a bankruptcy trustee "with all the rights, remedies and powers of a creditor then holding a lien."
Further, it repeals by judicial fiat a federal statute - Section 70, sub. c - which in the plainest of terms vests a bankruptcy trustee with the status of a "judgment creditor." Moreover, it disregards the express ruling of the Supreme Court of the United States in Myers v. Matley, 1943, 318 U.S. 622, 63 S. Ct. 780, 87 L. Ed. 1043, 318 U.S. 622, that a bankruptcy trustee is a "judgment creditor", and lastly, it is a reversal of this Court's holding in Salkind v. Dubois, 1937, 105 F.2d 640 that the Bankruptcy Act makes the bankruptcy trustee a "judgment creditor."
In Meyers v. Matley, supra, it was said (318 U.S. at pages 624, 625, 63 S. Ct. at page 782):
"The trustee, as to all property in possession and under the control of the bankrupt at the date of bankruptcy, is deemed vested, as of that date, with all the rights and remedies of a creditor then holding a lien on the property by legal or equitable proceedings, whether or not such a creditor actually exists." (Emphasis supplied.)
In Salkind v. Dubois, the writer of the majority opinion, there speaking for this Court, said (105 F.2d at page 640):
"Pursuant to the provisions of section 47, sub. a(2) of the Bankruptcy Act, 11 U.S.C.A. § 75, sub. a(2),*fn2 a trustee is deemed vested with all of the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings upon property coming into the custody of the bankruptcy court, and therefore the attempted reservation of property was void as against the trustee." (Emphasis supplied.)
Another member of this Court, Judge Hastie,*fn3 speaking for the United States Court of Appeals for the Ninth Circuit, in Sampsell v. Straub, 1952, 194 F.2d 228, 231, certiorari denied 343 U.S. 927, 72 S. Ct. 761, 96 L. Ed. 1338, said:
"Section 70, sub. c * * * is employed primarily to protect general creditors of the bankrupt against secret liens. To this end the trustee is given all the rights which a creditor with a lien by legal or equitable proceedings would enjoy. The trustee unquestionably enjoys the rights of a creditor who has levied attachment or execution on the bankrupt's property." (Emphasis supplied.)
To the same effect see McKay v. Trusco Finance Co. of Montgomery, Alabama, 5 Cir., 1952, 198 F.2d 431, which cited with approval Sampsell v. Straub, supra. In doing so, it stated (at page 433):
"* * * It follows that under sec. 70, sub. c of the Bankruptcy Act, the trustee in this case was in the position of a judgment creditor with a lien as of the date of bankruptcy.* * *" (Emphasis supplied.)
It is true that the cases cited arose under the Bankruptcy Act prior to its 1950 and 1952 amendments but as the majority says "The legislative history indicates that it was the intention of Congress by the 1950 and 1952 amendments to expand the rights of a trustee in bankruptcy generally * * *." In this connection the following excerpts from the "Historical Note" following Section 110, 11 U.S.C.A. are pertinent.
"1950 Amendment. Subd. (c) amended by Act Mar. 18, 1950, to place the trustee in bankruptcy in the position of a lien creditor with respect to all of the bankrupt's property".
"1952 Amendment * * * Subd. (c) amended by Act July 7, 1952, § 23(e), to clarify the fact that a trustee has the rights of a lien creditor upon property in which the bankrupt has an interest or as to which the bankrupt may be the ostensible owner."
Section 70, sub. c, although it does not, as amended in 1950 and 1952, use the term "judgment creditor" does spell out in the most definitive language possible the elements which make the bankruptcy trustee a "judgment creditor".
As amended in 1952 (in effect when the bankruptcy petition was filed in the instant case) Section 70, sub. c provides, in part:
"* * * The trustee, as to all property, whether or not coming into possession or control of the court, upon which a creditor of the bankrupt could have obtained a lien by legal or equitable proceedings at the date of bankruptcy, shall be deemed vested as of such date with all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists."
The Section, as amended, has been construed, in cases arising under it, to give the trustee in bankruptcy the status of a judgment creditor in language almost identical with that used in Myers v. ...