Opinion

Joseph T. McGinness v. United States of America, Internal Revenue Service

  • 90 F.3d 143
  • 78 A.F.T.R.2d (RIA) 5621
  • 1996 U.S. App. LEXIS 17688
  • 1996 WL 402554
Court
Court of Appeals for the Sixth Circuit
Filed
Jul 19, 1996
Status
Published
Author
Contie
On the bench
Kennedy, Contie, Nelson
Cited by
43 cases
Authority
More cited than 25.9%

finding, under Ohio law, that "[w]hile it is true that the receiver can acquire no greater legal rights or powers with respect to the property than [the taxpayer] possesses ..., the receiver’s powers are not limited to the legal rights of the debt- or-taxpayer, [because] [u]pon his appointment, the receiver succeeded to the rights of not only the debtor, but also the creditor”

How later courts described this case

  • finding, under Ohio law, that "[w]hile it is true that the receiver can acquire no greater legal rights or powers with respect to the property than [the taxpayer] possesses ..., the receiver’s powers are not limited to the legal rights of the debt- or-taxpayer, [because] [u]pon his appointment, the receiver succeeded to the rights of not only the debtor, but also the creditor”
  • holding that “[t]he United States, as a sovereign, cannot be sued for damages without its prior 16 consent, and the terms of its consent define the court’s subject matter jurisdiction.”
  • holding that “[t]he United States, as a sovereign, cannot be sued for damages without its prior consent, and the terms of its consent define the court’s subject matter jurisdiction.”
  • “To have standing to challenge a wrongful levy under § 7426, one must have an interest, such as a fee simple or equivalent interest, a possessory interest, or a security interest, in the property levied upon, or a lien on the property at issue.... ”

Written by the judges who cited it.

The opinion

CONTIE, Circuit Judge,

concurring.

Though I concur in Judge Kennedy’s opinion, I believe that the peculiar facts underlying this action present an additional basis for reversing the district court.

The record reveals that the Lake County Court of Common Pleas found Dr. Dera-khshan in contempt of court for failing to pay approximately $200,000 in alimony and child support arrearages. In an attempt to purge the contempt order, Dr. Derakhshan “gave $165,000 in Medicare claims to the receiver who, in turn, submitted them to Medicare (Nationwide) for payment.” Appellant’s Brief at 8. Because Dr. Derakhshan assigned the right to receive these funds to the court-appointed receiver in an effort to purge the existing contempt order, McGinness clearly obtained a legally cognizable interest in the property (ie., the right to receive the funds).

Because section 7426 “affords the exclusive remedy for an innocent third party whose property is confiscated by the IRS to satisfy another person’s tax liability,” Texas Commerce Bank-Fort Worth, N.A v. United States, 896 F.2d 152, 156 (5th Cir.1990) (citations omitted), McGinness has standing to pursue this wrongful levy action. Accordingly, the district court’s dismissal of McGinness’ action must be REVERSED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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