# Gordon v. United States > United States Court of Claims · May 6, 1981 · 649 F.2d 837 URL: https://www.frixlaw.com/law-library/cases/8597366 ## Case - **Full name:** KEITH GORDON v. United States - **Court:** United States Court of Claims - **Decided:** May 6, 1981 - **Citations:** 649 F.2d 837; 227 Ct. Cl. 328; 47 A.F.T.R.2d (RIA) 1503; 1981 U.S. Ct. Cl. LEXIS 267 - **Precedential status:** Published - **Opinion:** Concurrence by Friedman - **Judges:** Friedman, Kashiwa, Skelton - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by Four Rivers Investments, Inc. v. United States, 77 Fed. Cl. 592 (2007). - Negative treatments: 3 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8597366 ## How later opinions describe it (automated extraction) - holding that a statute granting United States District Court jurisdiction over illegal levies for third-party tax liabilities did not deprive the United States Court of Federal Claims of jurisdiction of such cases, as indicated in the statute’s legislative history - explaining that a conflict between two limitations periods located in respective statutes must be resolved in favor of what the court determines would have been Congress’ decision if presented with the conflicting limitations periods - holding that a taxpayer must abide by a shorter statute of limitations in the Internal Revenue Code, rather than the six-year period afforded by the Tucker Act - holding that § 6532(c) “require[s] levy contests [in this court] to be brought within 9 months of [the] levy” ## Opinion text FRIEDMAN, Chief Judge, concurring: Although I come out the same place the majority does, I get there by a somewhat different route. 1. The apparent rationale of the majority’s conclusion that section 110(a) of the Federal Tax Lien Act of 1966 did not restrict our jurisdiction under the Tucker Act to entertain a suit by a nontaxpayer challenging a tax levy upon its property is that (a) Congress was aware of that jurisdiction, and (b) its failure to refer to that jurisdiction *342 reflects an intention not to modify it. The main basis for the first proposition — that Congress was aware of our jurisdiction — is a brief reference in an American Bar Association Committee Report on tax liens to the fact that [pjresent decisions also permit one whose money is wrongly seized for another’s taxes to sue the United States for its recovery, but the suit must be in the Court of Claims if the amount exceeds $10,000 (although there are also decisions permitting such suit to be brought in the district court, without jurisdictional limit, if the Director is the nominal defendant). ABA Final Report, Legislative History (see p. 333, n.9, supra) 168. The entire discussion of our jurisdiction over such cases occupies a single paragraph within a 59-page discussion in the report on the broad subject of federal tax liens and levies. The report was introduced at the hearings before the House Ways and Means Committee on the proposed Federal Tax Lien Act, in the drafting of which act the American Bar Association played a major role. There was no discussion of the point either in the committee reports or on the floors of Congress. I think this brief reference to our decisions is too slender a reed upon which to rest the conclusion that Congress was aware that we had exercised jurisdiction under the Tucker Act over this type of case. Rather, I think that a fair reading of the legislative history indicates that Congress was unaware of our decisions and enacted section 110(a) on the mistaken assumption that no other means was available by which a nontaxpayer effectively could challenge a tax levy on his property. Nevertheless, I agree with the majority that in enacting section 110(a), Congress did not curtail our jurisdiction under the Tucker Act. There is nothing in the language or history of that section indicating that Congress intended that result. Since I believe that Congress was unaware of our Tucker Act jurisdiction in these cases, I do not think Congress should be deemed implicitly to have repealed it pro tanto by creating a remedy in the district court, unless there were a clear indication that Congress intended the new remedy to be exclusive. I find nothing to show that *343 Congress had that intention. I think that in enacting section 110(a), Congress merely provided a new nonexclusive remedy for nontaxpayers whose property had been levied upon and left intact our existing jurisdiction under the Tucker Act. 2. The remaining question is whether the 9-month statute of limitations under section 110(a) or the 6-year statute under the Tucker Act applies. This aspect of the case presents the familiar problem of a court attempting to ascertain how the legislature would have dealt with an issue it did not consider if the problem had been called to its attention. The answer depends upon the basic purpose and plan of the statute the legislature enacted. As the majority states, a major objective of section 110(a) was to insure that "third-party levy contests should be resolved quickly,” and the concerns that induced Congress to impose a 9-month limitations period for levy contests in the district court "are equally applicable to levy contests in this court.” I conclude that, if Congress had been aware of our Tucker Act jurisdiction over levy challenges by nontax-payers when it enacted section 110(a) and had considered what limitations period should apply to our cases, it probably would have selected the same 9-month period it adopted for district court cases. Accordingly, it is appropriate to apply the 9-month limitations period prescribed in section 110(a) to Tucker Act suits in this court. The plaintiffs petition therefore is untimely and must be dismissed. 3. Throughout this discussion I have assumed arguendo that despite the enactment of section 110(a), we would continue to recognize the right of nontaxpayers to bring Tucker Act suits to challenge tax levies on their property. That assumption, however, is dubious. We treat such suits as based upon a breach of a contract implied in fact under which the government agrees to refund to nontaxpayers property of those persons upon which the government improperly has levied. The doctrine apparently was first announced in Kirkendall v. United States, 90 Ct. Cl. 606 , 31 F. Supp. 766 (1940). Its rationale was as follows: *344 When the Government has illegally received money which is the property of an innocent citizen and when this money has gone into the Treasury of the United States, there arises an implied contract on the part of the Government to make restitution to the rightful owner under the Tucker Act and this court has jurisdiction to entertain the suit. 90 Ct. Cl. at 613 , 31 F. Supp. at 769 . It does not follow, however, that there is a contract implied in fact where, as now, a nontaxpayer may recover property improperly levied upon through timely suit in the district court. In this situation it seems unlikely that the government also has agreed to make restitution to the nontaxpayer under an implied contract, which may be sued upon in this court. An important reason for the Kirkendall decision, although not explicitly set forth in the opinion, would appear to be that unless there were such a contract implied in fact, there might be no method by which the nontaxpayer effectively could recover the property the government improperly had taken from him through a levy. With the enactment of section 110(a), however, that situation no longer exists. Cf. Fletcher v. United States, 226 Ct. Cl. 560 (1980). In view of our disposition of this case, there is no occasion here to reach this issue, which neither party has addressed. I discuss it only because it seems important to point out that, if and when the court faces the issue, it may conclude that Kirkendall no longer is viable. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8597366. Public record. Not legal advice.