Petition for Writ of Certiorari — Wolfe v. United States

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86-1576 wT ee

Mar 26 1987

NO JOSEPH F. SPANIOL, ;

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

CHARLES E. WOLFE,

Petitioner

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Attorney for Petitioner:

Jack W. Burnett

Attorney at Law

Suite 206

1300 Avenue C

Billings, MT 59102

(406) 252-4910

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—

QUESTIONS PRESENTED FOR REVIEW

1. Does the judicial branch of the U.S. Government have legal authority

to amend the laws of the U.S. Congress?

Stated another way, does a U.S. Court of Appeals have the legal

authority to hold that a Levy served on an American citizen pursuant

to Section 26 U.S.C. 6331(a) is a valid Levy even though such an in-

dividual was never assessed for the taxes in issue and was never served

with a notice and demand for payment of the taxes whereas Section

6331(a) provides that before serving such a Levy an individual must

first be served with a notice and demand for the payment of the taxes

and before serving such a notice and demand for payment of taxes

the individual must first be assessed for the taxes pursuant to 26 U.S.C.

6201(a)(1)?

2. Does a U.S. Court of Appeals have legal authority to overrule a

decision of the U.S. Supreme Court?

Stated another way, the U.S. Supreme Court, in U.S. v. National

Bank of Commerce, 86 L Ed 565 (1985), has clearly and definitely

distinguished between a Levy served pursuant to 26 U.S.C. 6331(a)

and a Notice of Levy served pursuant to 26 U.S.C. 6332(a), whereas

the 9th Circuit, in this case, held that a levy and a notice of levy are

not distinct and in so holding has the 9th Circuit decided a federal ques-

tion in conflict with this Supreme Court case?

3. Cana human being be an ‘‘alter ego’’ of his solely owned corpora-

tion or is this a legal impossibility?

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TABLE OF CONTENTS

Page

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1. The Ninth Circuit erred in holding that the Levy served on

Mr. Wolfe was lawfully served even though Mr. Wolfe had not

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2. The Ninth Circuit erred in holding that a Levy and a Notice

of Levy are not distinct and in so doing it has overruled a

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3. The Ninth Circuit erred in holding that Mr. Wolfe was the

alter ego of his solely owned corporation and that he had to pay

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TABLE OF AUTHORITIES

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1986

CHARLES E. WOLFE,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

Attorney for Petitioner:

Jack W. Burnett

Attorney at Law

Suite 206

1300 Avenue C

Billings, MT 59102

(406) 252-4910

———_—

OPINION BELOW

The opinion of the U.S. Court of Appeals of the Ninth Circuit was

filed on August 29, 1986 (p. 18). An order amending the opinion and

denying a petition for rehearing was filed on December 29, 1986 (p. 24).

JURISDICTION

The date of the opinion of the Ninth Circuit was August 29, 1986,

and the date of the order denying a timely filed petition for rehearing

was December 29, 1986. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1). Pursuant to 28 U.S.C. 2101(c), a petition for

certiorari in a civil case can be filed within 90 days after an order denying

a petition for a rehearing by a U.S. Court of Appeals.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

United States Constitution

AMENDMENT IV

The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall

not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

AMENDMENT V

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces, or in the Militia,

when in actual service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty or property, without

due process of law; nor shall private property be taken for public use,

without just compensation.

The following section of 28 U.S.C.:

SECTION 1346. UNITED STATES AS DEFENDANT.

(a) The district courts shall have original jurisdiction, concurrent

with the United States Claims Court, of:

(1) Any civil action against the United States for the recovery of

any internal-revenue tax alleged to have been erroneously or illegally

assessed or collected, or any penalty claimed to have been collected

without authority or any sum alleged to have been excessive or in any

manner wrongfully collected under the internal-revenue laws;

The following sections of 26 U.S.C.:

SECTION 6201. ASSESSMENT AUTHORITY.

(a) AUTHORITY OF SECRETARY—The Secretary is authorized

and required to make the inquiries, determinations, and assessments

of all taxes (including interest, additional amounts, additions to the tax,

and assessable penalties) imposed by this title, or accuring under any

former internal revenue law, which have not been duly paid by stamp

at the time and in the manner provided by law. Such authority shall

extend to and include the following:

(1) TAXES SHOWN ON RETURN—The Secretary shall assess

all taxes determined by the taxpayer or by the Secretary as to which

returns or lists are made under this title.

SECTION 6301. COLLECTION AUTHORITY.

The Secretary shall collect the taxes imposed by the internal

revenue laws.

SECTION 6303. NOTICE AND DEMAND FOR TAX.

(a) GENERAL RULE— Where it is not otherwise provided by this

title, the Secretary shall, as soon as practicable, and within 60 days,

after the making of an assessment of a tax pursuant to section 6203,

give notice to each person liable for the unpaid tax, stating the amount

and demanding payment thereof. Such notice shall be left at the dwelling

or usual place of business of such person, or shall be sent by mail to

such person’s last known address.

SECTION 6331. LEVY AND DISTRAINT.

(a) AUTHORITY OF SECRETARY—If any person liable to pay

any tax neglects or refuses to pay the same within 10 days after notice

and demand, it shall be lawful for the Secretary to collect such tax

(and such further sum as shall be sufficient to cover the expenses of

the levy) by levy upon all property and rights to property (except such

property as is exempt under section 6334) belonging to such person

or on which there is a lien provided in this chapter for the payment

of such tax. Levy may be made upon the accrued salary or wages of

any officer, employee, or elected official, of the United States, the

District of Columbia, or any agency or instrumentality of the United

States or the District of Columbia, by serving a notice of levy on the

employer (as defined in section 3401(d)) of such officer, employee,

or elected official. If the Secretary makes a finding that the collection

of such tax is in jeopardy, notice and demand for immediate payment

of such tax may be made by the Secretary and, upon failure or refusal

to pay such tax, collection thereof by levy shall be lawful without regard

to the 10-day period provided in this section.

(b) SEIZURE AND SALE OF PROPERTY—The term “‘levy’’ as

used in this title includes the power of distraint and seizure by any

means. Except as otherwise provided in subsection (e), a levy shall

extend only to property possessed and obligations existing at the time

thereof. In any case in which the Secretary may levy upon property

or rights to property, he may seize and sell such property or rights

to property (whether real or personal, tangible or intangible).

SECTION 6332. SURRENDER OF PROPERTY SUBJECT TO LEVY.

(a) REQUIREMENT—Except as otherwise provided in subsec-

tion (b), any person in possession of (or obligated with respect to)

property or rights to property subject to levy upon which a levy has

been made shall, upon demand of the Secretary, surrender such

property or rights (or discharge such obligation) to the Secretary,

except such part of the property or rights as is, at the time of such

demand, subject to an attachment or execution under any judicial

process.

SECTION 7422. CIVIL ACTIONS FOR REFUND.

(a) NO SUIT PRIOR TO FILING CLAIM FOR REFUND—No

suit or proceeding shall be maintained in any court for the recovery

of any internal revenue tax alleged to have been erroneously or illegally

assessed or collected, or of any penalty claimed to have been collected

without authority, or of any sum alleged to have been excessive or

in any manner wrongfully collected, until a claim for refund or credit

has been duly filed with the Secretary, according to the provisions of

law in that regard, and the regulations of the Secretary established

in pursuance thereof.

STATEMENT OF THE CASE

The facts discussed hereinbelow are contained in a stipulation of

facts and agreed to by the parties.

For several years before and during the tax years involved in this

case (which tax years are 1974, 1975, and 1976), Mr. Wolfe was

engaged in the business of hauling commodities pursuant to authority

from the Interstate Commerce Commission (ICC). His business was

known as the Evergreen Express. He was also the sole shareholder

and the President of Wolfe & Co., Inc. Said corporation owned trac-

tors and trailers which it leased to Mr. Wolfe and to third parties. The

corporation owned no ICC permits.

The ICC permits were always owned by Mr. Wolfe and the

corporation never owned any ICC permits.

Federal tax returns regarding the taxes in issue and for prior years

were filed by the corporation. Federal income tax returns for the years

1974 thru 1976 and for prior years were filed by the corporation and

also by Mr. Wolfe.

The Arab oil embargo was imposed in the fall of 1973. The price

of fuel oil rose drastically in 1974 and 1975 and Mr. Wolfe was unable

to increase his transportation charges to keep up with the rising fuel

costs.

Both the corporation and Mr. Wolfe became insolvent and all busi-

ness operations were completely terminated before the end of March

1976. Since that time Mr. Wolfe has worked as a laborer and he is

currently working on a crusher and doing some welding for his

employer.

During the taxable years in issue, the corporation filed Federal

employment tax returns, Federal highway use tax returns, and Federal

diesel tax returns, with the Internal Revenue Service (IRS). it paid

what taxes it could but fell behind and this case involves $80,712.38

of said taxes which the corporation was unable to pay.

The corporation had been assessed for said $80,712.38 of taxes

by the IRS.

The IRS never made an assessment of said taxes against Mr. Wolfe.

On December 2, 1975, the IRS served a Levy on Mr. Wolfe

(p. 26). On the same date, the IRS served on the ICC a Notice of

Levy, naming Mr. Wolfe as the taxpayer (p. 27). On the same date,

the IRS served a Notice of Seizure on the ICC, naming Mr. Wolfe

as the taxpayer (p. 28).

In 1976, Mr. Wolfe was negotiating for the sale of his ICC permits

to Hart Motor Express and to C.M. Burns. Prior to the completion

of said sales, the IRS served them with Notices of Levy naming Mr.

Wolfe as the taxpayer (p. 29, 30).

In order to clear the title to his ICC permits, it was necessary for

Mr. Wolfe to pay taxes to the IRS in the sum of $114,472.91 and said

sum was paid by him on January 27, 1977. On the same day, the IRS

released the Levy on all of Mr. Wolfe’s ICC permits (p. 31).

Subsequently, Mr. Wolfe filed timely claims for refunds of the taxes

he paid and later this suit was timely filed in the U.S. District Court

for the District of Montana.

In the court of first instance, the U.S. District Court for the District

of Montana, the parties agreed that federal jurisdiction was invoked

because this is a federal tax refund suit arising under 26 U.S.C. 7422

(p. 7). and 28 U.S.C. 1346(a)(1) (p. 5).

ARGUMENT

1. The Ninth Circuit erred in holding that the Levy served

on Mr. Wolfe was lawfully served even though Mr. Wolfe had

not been assessed for the taxes in issue.

Our American system of collecting Federal taxes, including the taxes

involved in this case, is known as the self-assessment system.

Technically, this is not accurate. What our law provides is that certain

persons have a duty to file tax returns. The actual assessment of taxes

is unilaterally made by the IRS. The assessment procedure is con-

tained in the United States Code (Code). Section 6201(a)(1) of the

Code provides that the Secretary is authorized and required to make

the assessments of all taxes imposed by the tax law. Such authoriza-

tion shall include taxes shown on a return. The Secretary shall assess

all the taxes determined by the taxpayer or by the Secretary as to

which returns or lists are made under the law (p. 6).

Rights of taxpayers and rights of the government are involved in

this assessment procedure including statutory collection procedures

and statue of limitations which apply to various possible actions.

When a Federal tax has been assessed, the IRS has the duty to

collect the tax. Code Section 6301 (p. 6).

Code Section 6303 provides that where it is not otherwise provided

by the Code, the IRS shall within 60 days after making an assessment

give notice to each person liable for the unpaid tax, stating the amount

and demanding payment thereof (p. 6).

Code Section 6331(a) & (b) provide that if any person liable to pay

any tax neglects or refuses to pay the same within 10 days after notice

and demand, it shall be lawful for the IRS to collect such tax by levy

upen all property belonging to such person and it is provided that the

term ‘‘levy’’ includes the power of distraint and seizure and that the

property levied upon can be sold (p. 6).

Under Code Section 6332(a), a notice of levy may be served on

any person in possession of property subject to levy and such person

must surrender any such property to the IRS (p. 7).

In summary, before taking any statutory collection action pursuant

to Section 6331, the IRS must first assess a tax liability against the

taxpayer. After so doing, if the taxpayer does not pay the tax after

a 10 day notice and demand, the IRS may levy upon all property

belonging to the taxpayer and such property can be sold and the sales

proceeds can be applied to pay the assessed tax.

Now are there any exceptions to these statues? That is, can a Levy

be served on an American citizen by identifying him as the taxpayer

even though he has not been assessed for the tax for which he is alleged

to owe and he has not been served with a notice and demand for pay-

ment of the tax? The statutes contain no exception to the require-

ment that a person upon whom a Levy is served must first be assessed

for the tax and also be served with a notice and demand for payment

of the tax before this statutory collection action can be used against

him. These statutes are very clear in providing that a levy can only

be served after the person has been assessed and no reported case,

other than the Ninth Circuit in this case, has ever approved the filing

of a Levy against anyone who has not been assessed and served with

a notice and demand for payment of the tax. Since Mr. Wolfe was not

assessed for the taxes in issue, the collection procedure used against

him was illegal.

To further substantiate that the IRS’s collection activity was illegal,

an analysis of the documents filed and served in this case is appropriate.

These documents are entitled ‘‘Levy’’ (p. 26), served on Mr. Wolfe,

‘‘Notice of Levy’’ (p. 27), served on the ICC, and ‘‘Notice of Seizure’,

served on the ICC (p. 28). Thereafter, a ‘‘Notice of Levy’’ was served

on C.M. Burns (p. 29), and a ‘‘Notice of Levy’’ was served on Hart

Motor Express (p. 30). The Levy and the notices thereof were served

in order to place a cloud on the title of Mr. Wolfe’s ICC permits.

The Levy provides that there is ‘‘Due from Charles E. Wolfe, dba

Evergreen Express, the alter ego, agent, transferee or nominee of

Wolfe & Co., Inc.’’ In the printed portion thereof, it is stated that

Section 6331 of the Code authorizes collection of the taxes by levy

upon all property of the taxpayer to satisfy the unpaid balance of

assessment. The form also states that the person upon whom the Levy

is served has been assessed for the tax in issue and that he has been

served with a notice and demand for payment. The form used in this

case contains false statements because no assessment was made

against Mr. Wolfe and he was not served with a notice the demand

for payment.

Mr. Wolfe was the owner of certain permits issued by the ICC.

As previously noted, a Notice of Levy and a Notice of Seizure were

served on the ICC. The Notice of Levy states that Mr. Wolfe is the

taxpayer and that his property is subject to a lien provided therefore

under Chapter 64 of the Internal Revenue Code and the Notice of

Seizure refers to the Levy cited above: In the Notice of Levy served

on C.M. Burns and in the Notice of Levy served on Hart Motor

Express, it is stated that Mr. Wolfe is the taxpayer and that his property

is subject to a lien provided therefore in Chapter 64 of the Code. The

notices addressed to C.M. Burns and Hart Motor Express were served

on them because Mr. Wolfe was negotiating for the sale of his ICC

permits to them. All of these documents contain false statements

because Mr. Wolfe was never assessed for the taxes in issue nor was

he ever served with a notice and demand for payment.

Because of the filing and serving of the Levy and all of the other

documents discussed above, Mr. Wolfe was forced to pay $114,472.91

claimed to be due from him by the IRS in order to clear the title to

his ICC permits so that he could complete the sale of said permits

to C.M. Burns and Hart Motor Express.

After Mr. Wolfe made the payment of $114,472.91 on January 27,

1977, the IRS released the Levy on his ICC permits. The release states

that Mr. Wolfe is the taxpayer (p. 31).

Thereafter, Mr. Wolfe filed the refund claims involved in this mat-

ter and later filed this action to recover the sum of $114,472.91 paid

by him.

Having decided in 1975 to proceed against Mr. Wolfe on the basis

that he was the taxpayer and then filing a Levy against him, the Govern-

ment is stuck with the consequences of so doing and in failing to secure

an assessment against him its collection activity was illegal and also

unconstitutional.

It is well recognized that the administrative levy authorized by Con-

gress in Section 6631 has placed an awesome power in the hands of

the IRS. That is, without prior court approval, the IRS can seize and

sell the property of an American citizen, and apply the proceeds to

the citizen’s assessed tax liability. Compare this power with what others

must do in order to execute on another’s property. That is, a court

action will have to be won before any such action can be taken.

Now in granting this extraordinary power to the IRS, the Congress

imposed 3 mandates which must be complied with before the adminis-

trative levy can be lawfully issued. These are:

First, the person upon whom the [RS serves a Levy must be clearly

identified as the person who owes the taxes;

Second, the IRS must assess such person for the taxes before serv-

ing the Levy; and,

Third, the Levy cannot be served until that person has been served

with a notice and demand for payment of the taxes.

In summary, Congress gave the IRS this immense power but Con-

gress attempted to safeguard an illegal abuse of this power by imposing

these 3 mandates. These mandates prevent the kind of fishing expe-

dition which the IRS has attempted in this case.

All courts, except the Ninth Circuit in this case, have required that

these 3 mandates must be complied with before such a levy is lawful.

In regards to this case:

(1) Has the taxpayer been clearly identified? The answer is ‘‘yes’’.

That is, Charles E. Wolfe is identified as the taxpayer and the Ninth

Circuit’s decision stated that the Levy was served on Mr. Wolfe.

te Was Mr. Wolfe assessed for the taxes in issue? The answer

is ‘ . Therefore, the Levy was illegal.

@) Was Mr. Wolfe served a notice and demand for payment

of the taxes. The answer is “‘no’’. Therefore, again, the Levy was

illegal.

The Ninth Circuit’s opinion states that:

‘““Moreover, under the alter ego theory, the assessment against

the corporation was effective against Wolfe as well.’’

Section 6331 contains no exceptions. The alter ego doctrine is an

equitable doctrine which allows a corporation’s property to be used

to apply against an assessed taxpayer’s tax liability. It in no way oper-

ates as an exception to the requirements of Section 6331. To do so

would take an Act of Congress.

It is clear that under the Code the collection activity of the IRS

in this case was illegal because Mr. Wolfe was not assessed for the

taxes and it was mandatory to make such an assessment and also to

serve him with a notice and demand for payment of the tax before

a Levy could lawfully be served against him. The illegal seizure of Mr.

Wolfe’s ICC permits also constituted a violation of the 4th Amend-

ment of the U.S. Constitution which prohibits unreasonable seizures

and the illegal filing and serving of the Levy against him and filing a

Notice of Levy on the ICC and on Mr. Burns and on Hart Motor

Express constitute a violation of the 5th Amendment of the U.S. Con-

stitution which prohibits the taking of property without due process

of law. Therefore, the collection from Mr. Wolfe of $114,472.91 con-

stituted an ‘‘erroneous and illegal’’ collection pursuant to 28 U.S.C.

Section 1346(a)(1).

The parties stipulated that if the court holds that the $114,472.91

is refundable because no assessment was made against Mr. Wolfe,

then he is entitled to judgment against the Government in that amount.

It is submitted that such a judgment should be so ordered because

it is clear that an assessment was required by law before a Levy and

notices thereof could lawfuliy be served and filed against Mr. Wolfe.

The first question presented for review hereinabove is: Does the

judicial branch of the U.S. Government have the legal authority to

amend the laws of the U.S. Congress? Probably everyone would

answer ‘‘of course not’’ since to do so would violate the separation

of powers provisions of the U.S. Constitution. But what has the Ninth

Circuit done in this case? The effect of its decision is to amend Section

6331 in the following manner:

‘ta Levy can be served on an American citizen by alleging that he

is an alter ego of a corporation and by so doing it is not necessary

to assess him for the taxes in issue nor is it necessary to serve him

with a notice and demand for payment of the taxes.’’

It is submitted that the Ninth Circuit exceeded its judicial authority

by adopting this legislative exception to Section 6331 and by so doing

it has so far departed from the accepted and usual course of judicial

proceedings as to call for an exercise of this Court’s power of super-

vision.

2. The Ninth Circuit erred in holding that a Levy and a Notice

of Levy are not distinct and in so doing it has overruled a

decision of the U.S. Supreme Court.

In its holding, the Court stated (p. 23):

‘‘Wolfe misconstrues section 6331 by arguing that a notice of levy

and a levy are distinct, and that a notice of levy, but not a levy, can

be served on persons against whom assessments have not been made.”’

It is submitted that the Ninth Circuit is in error in not distinguish-

ing between a Levy and a Notice of Levy and its failure to make this

distinction is clearly erroneous and has the effect of overruling the

United States Supreme Court. In a 1985 decision, the U.S. Supreme

Court decided a case in which the levy statutes were discussed in

concise and clear language. The case is U.S. v. National Bank of Com-

merce, 86 L Ed 565 (1985). The Court, at page 569, stated that Internal

Revenue Code Section 6331(a) provides that the Government may

collect taxes of a delinquent taxpayer ‘‘by levy upon all property and

rights to property . . . belonging to such person.’’ The Court then

cited Code Section 6332(a) and stated that ‘‘any person in possession

of . . . property or rights to property subject to levy upon which a

levy has been made, shall upon demand of the Secretary, surrender

such property or rights . . . to the Secretary.’’ In the National Bank

of Commerce case, a Notice of Levy had been served on the respon-

dent bank. The Supreme Court stated, at page 574, ‘‘in a situation

where a taxpayer’s property is held by another, a notice of levy upon

the custodian is customarily served pursuant to Code Section 6332(a).

This notice gives the IRS the right to all property levied upon. . .

and creates a custodial relationship between the person holding the

property and the IRS so that the property comes into the construc-

tive possession of the Government.’’ Although the Court’s opinion

was not unanimous regarding the merits of the case, it is believed that

all of the justices agreed with the procedural matters quoted above.

This Supreme Court case clearly illustrates the illegal collection

procedure used by the IRS in this case. The IRS proceeded against

Mr. Wolfe by filing a Levy against him. This Levy document can only

be filed against a delinquent taxpayer and as the Supreme Court stated,

this document involves Code Section 6331(a). Before Section 6331 (a)

becomes effective, it is mandatory that the taxpayer must first be

assessed for the tax in issue pursuant to Section 6201(a)(1).

When Code Section 6332(a) is applicable, it is not necessary to make

an assessment against such a third person. Only a notice of the levy

against the taxpayer need be served on the third party. The reason

why no assessment is necessary is that the IRS is not claiming that

the third person owes any tax. The notice of levy under Section 6332(a)

simply brings the taxpayer’s property in the possession of the third

person into the constructive possession of the IRS.

In this case, Mr. Wolfe always owned the ICC permits and his

corporation, Wolfe & Co., Inc., never owned any ICC permits.

The second question presented for hereinabove is: Does a U.S.

appeals court have legal authority to overrule a decision of this Court?

Probably everyone would say ‘‘of course not’’ but in this case the

Ninth Circuit has, in effect, done so. Why did the Ninth Circuit choose

to ignore the clear language of this Supreme Court case? It didn’t give

any reason.

It is clear that this is a proper case for this Court to grant certiorari

because the Ninth Circuit’s opinion is in direct conflict with this Court’s

decision in the National Bank of Commerce case.

3. The Ninth Circuit erred in holding that Mr. Wolfe was the

alter ego of his solely owned corporation and that he had to

pay the taxes owed by his corporation.

In this case, the IRS officials drafted the Levy and the notices there-

of in reverse of the standard manner of challenging the separate legal

status of a corporation and its shareholders. That is, in a standard case,

it is the corporation which is alleged to be the alter ego if its share-

holders. The term ‘‘alter ego’’ is defined as ‘‘a second self’’. Since

a corporation is by law a fictional person, courts have held that when

the operations of a corporation have not legally measured up to the

standards required of a separate entity, the corporate veil can be

pierced and certain liabi’ ties of the corporation can be imposed upon

the shareholders. That is, the corporation is then classified as the

“‘second self’’ of the shareholders.

However, in this case, the IRS alleged in the Levy and notices

thereof that Mr. Woife was the alter ego of a corporation. This is the

reverse of the standard doctrine. No reported tax case has been found

in which this has been attempted by the IRS. It is submitted that it

is impossible to ‘‘pierce the veil of a human being’’ in order to classify

him as a corporation’s ‘‘second self’’ so as to require that his property

be used to pay a Federal tax liability of a corporation.

No other tax case has been found wherein a court has held that

an American citizen who was a shareholder of a corporation was liable

to have his property used to pay Federal corporate taxes on the grounds

that he was the alter ego of the corporation. It is submitted that to

do so would take an Act of Congress.

It is submitted that an allegation that an American citizen is the

alter ego of his solely owned corporation does not make common sense.

This is because such an allegation implies that the corporation is valid

for all purposes and that it is possible to ‘‘pierce the veil of a human

being’’. This is simply not possible either physically or legally. Stated

another way, an individual shareholder of a corporation might so

dominate a corporation by his actions that a court could hold that the

corporation was his ‘‘second self’’, that is, his alter ego. But how could

a fictional person, that is, a corporation, so dominate its individual share-

holder so as to require that the shareholder be classified as the ‘‘second

self’’ of the corporation? Such a result would be irrational.

Not in 200 years of Federal taxation prior to this decision by the

Ninth Circuit has any court rendered such a wierd holding. The alter

ego doctrine should never be applied backwards and the reasons why

no court should ever adopt such a backwards version of the alter ego

doctrine in tax cases are as follows:

(1) It is unreasonable and inconsistent for the IRS to attempt to

use it, since the IRS has accepted the corporate tax returns as filed

and has assessed the taxes against the corporation. Therefore, the

IRS should logically and reasonably have to take the position that the

corporation is a completely valid corporation.

(2) Even if the corporate veil were pierced, the only legal effect

would be to disregard the corporation for the entire transaction including

the filing of corporate tax returns and the assessment of the tax against

the corporation.

(3) A corporation does not own any interest in the property of its

individual shareholders—hence there is no equitabie principle which

would require that the individual’s property be used to pay the corpor-

ation’s tax liability.

(4) To attempt to pierce the veil of a human being and then claim

that he is the alter ego of a corporation is impossible.

(5) It would take an Act of Congress to impose such a law and

Congress has never contemplated such an irrational law.

CONCLUSION

Are we a nation of laws? The answer is ‘‘yes’’. Then what should

be the result if the IRS abuses the laws passed by the U.S. Congress?

First, the IRS itself should correct its own mistakes and if it doesn’t

then as American citizens we must rely on the Federal judiciary to

correct such mistakes. In this case, the Ninth Circuit has failed to secure

procedural justice for an American citizen and instead has rendered

an erroneous and regressive decision upholding the illegal and uncon-

stitional collection actions of the IRS. In the name of the civil rights

of American taxpayers, it is requested that the Court grant certiorari

and thereafter reverse the decision of the Ninth Circuit.

Respectfully submitted, .

March 11, 1987

s/ Jack W. Burnett

Jack W. Burnett

APPENDIX

For Publication

UNITED STATES COURTS OF APPEALS

FOR THE NINTH CIRCUIT

Filed August 29, 1986

Cathy A. Catterson, Clerk

U.S. Courts of Appeals

CHARLES E. WOLFE,

No. 85-4027

DC No. Cv 82-227-BLG

OPINION

Plaintiff-Appellant,

vs.

UNITED STATES OF AMERICA,

Defendant-Appellee.

ee ee a a ee a

Appeal from the United States District Court

for the District of Montana

Honorable James F. Battin, Chief Judge, Presiding

Argued June 12, 1986—

San Francisco, CA

Submitted July 9, 1986

Before: CHAMBERS and CHOY, Senior Circuit Judges, and

NORRIS, Circuit Judge.

CHOY, Senior Circuit Judge:

Charles E. Wolfe appeals the district court grant of summary judg-

ment, requiring Wolfe, as the alter ego of his corporation (Wolfe &

Company), to pay taxes assessed against the corporation. The court

additionally held that procedures employed by the Government to levy

Wolfe’s property were in compliance with federal tax statutes and regu-

lations. We affirm.

BACKGROUND

Wolfe was the sole shareholder and president of Wolfe & Company,

(‘‘corporation’’), which leased tractor-trailers. Wolfe also operated

a proprietorship known as Charles E. Wolfe d/b/a Evergreen Express

(‘‘proprietorship’’), an ‘‘over-the-road’’ trucking business.

During the tax years 1974-1976, the corporation incurred

$114,472.91 in federal tax liabilities for employment, fuel, and high-

way use taxes, and for penalties, fees, and interest. The Government

assessed this amount against the corporation, which the corporation

failed to pay after notice and demand. The Government then levied

on Wolfe’s Interstate Commerce Commission permits used in his truck-

ing business by issuing a levy against Wolfe and serving notices of levy

upon the Interstate Commerce Commission and a prospective buyer

of the permits. Wolfe paid the taxes and sued for a refund in district

court, alleging that the levy was invalid since he had not been personally

assessed with the corporation’s tax liabilities.

The parties stipulated to all of the facts and exhibits in the case,

among them, the absence of separate bank accounts and Wolfe’s pay-

ment of corporate employee salaries with proprietorship checks, while

charging wages and employee taxes to the corporation. The parties

also agreed in the pretrial order that no witnesses were necessary

for resolution of the dispute.

The Government subsequently moved to file Wolfe’s deposition.

Wolfe did not oppose the motion, and the court allowed the deposi-

tion to be filed. The district court granted summary judgment against

Wolfe, and Wolfe timely appeals.

APPLICABILITY OF ALTER EGO DOCTRINE

Wolfe challenges the application of the alter ego doctrine to require

an individual shareholder to pay the taxes of a disregarded corporated

entity. He argues that the Government cannot, on the one hand, con-

sider a corporation viable for the purpose of assessing corporate taxes,

and, on the other hand, disregard the same corporation to reach the

assets of an individual shareholder.'

It is clear that creditors of a corporation may satisfy liabilities from

a shareholder’s assets under the alter ego doctrine. See Laborers Clean-

Up Contract Administration Trust Fund v. Uriarte Clean-Up Services,

Inc., 736 F.2d 516, 524 (9th Cir. 1984) (explicating the test for

determining whether stockholders are personally liable for the debts

of their corporations). However, the question remains whether this

debtor/creditor alter ego theory applies in the tax context, i.e. allow-

ing the Government/creditor to satisfy the corporation's tax liability

from assets of the shareholder. This circuit has not yet considered

this issue.

In Avco Delta Corp. Canada Ltd. v. United States, 540 F.2d 258,

264-65 (7th Cir. 1976), cert. denied, 429 U.S. 1040 (1977), the Seventh

Circuit used the alter ego doctrine to require a corporation to pay the

taxes of its wholly-owned corporate subsidiary. Wolfe argues that Avco

Delta did not require an individual shareholder to pay the taxes of

‘the disregarded corporation. However, this does not appear to be a

material distinction. The essential point to be derived from Avco Delta

is that a subsidiary corporation can be recognized as a corporation for

the purpose of determining the tax, but then disregarded for the pur-

pose of obtaining payment of that amount.

Indeed, despite Wolfe's contentions, it is not necessarily incon-

sistent to view a corporation as viable for the purpose of assessing

a corporation tax, while disregarding it for the purpose of satisfying

that assessment. Only those corporations that were established with

no valid purpose are considered sham corporations, and thus not entitled

to separate taxable status. See Moline Properties v. Commissioner of

Internal Revenue, 319 U.S. 436, 439 (1943). A corporation could have

a valid business purpose (giving it separate tax status), and at the same

time be so dominated by its owner that it could be disregarded under

the alter ego doctrine. Cf. National Carbide Corp. v. Commissioner

of Internal Revenue, 336 U.S. 422, 431-434 & n. 13 (1949) (finding

insignificant, for the purpose of determining whether a subsidiary cor-

poration is entitled to separate taxable status, the fact that the owner

retains direction of the subsidiary’s affairs, provides all of its assets,

‘Whether the alter ego doctrine may be applied to require an individual to pay the

tax owed by his corporation is a question of law which we review de novo. United

States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 105 S. Ct. 101 (1984).

taxes all its profits, and exercises complete domination and control

over its business). This view has been adopted by the Fifth Circuit.

See Harris v. United States, 764 F.2d 1126, 1128 (5th Cir. 1985)

(‘‘{w]hether or not [the corporation] was a separate taxable entity is

not the same question as whether it was an alter ego for the purpose

of piercing the corporate veil’’); see also United States v. Creel, 711

F.2d 575, 579 (5th Cir. 1983), cert. denied, 464 U.S. 1044 (1984).

Indeed, in Harris, an individual shareholder’s property was held sub-

ject to a tax lien to satisfy the disregarded corporation’s unpaid

employment taxes. 764 F.2d at 1129.

We conclude that the alter ego doctrine can be employed to require

Wolfe to pay the taxes of his corporation. There has been no asser-

tion that the corporation had no valid business purpose. The Govern-

ment stands in a position analogous to any creditor seeking to collect

debts owed by the corporation.

WHETHER WOLFE WAS AN ALTER EGO

The question remains whether the district court erred by holding

that Wolfe was in fact the alter ego of his corporation.? Wolfe raises

only two issues regarding the district court's factual conclusion. First,

he contends that the district court failed to find wrongful or fraudulent

conduct by the taxpayer, which he argues is required under the alter

2Because the question whether Wolfe was the alter ego of his corporation is essen-

tially factual, it is generally reviewed under the clearly erroneous standard. United

States v. McConney, 728 F.2d 1195, 1201, (1984), cert. denied, 105 S.Ct. 101 (1985).

For purposes of their cross-motions for summary judgment in this case, the parties

stipulated to ‘‘all pertinent facts and exhibits necessary for the resolution of the issues."’

It is clear that in doing so, the parties intended to submit the case for a bench tral

on stipulated facts. See Starsky v. Williams, 512 F.2d 109, 111 (9th Cir. 1975). Thus,

even though the case is before us on appeal from an award of summary judgment,

the district court’s determination that Wolfe was the alter ego of his corporation is

reviewed under the clearly erroneous standard. See id.

ego doctrine. However, under Montana law,* a corporate entity may

be pierced without a positive showing of fraud. See E.C.A. Evntron-

mental Management v. Toenyes, ___. Mont. __, 679 P.2d 213, 219

(1984). Indeed, a corporation will be disregarded where it is used to

evade a public duty, such as the paying of taxes. Commerical Credit

Co. v. O’Brien, 115 Mont. 199, 211, 146 P.2d 637, 643 (1944), cert.

denied, 323 U.S. 665 (1944); accord Valley Finance, Inc. v. United

States, 629 F.2d 162, 171-72 (D.C. Cir. 1980) (‘‘[t]he Government's

inability otherwise to satisfy legitimate federal tax debts clearly may

form a sound basis for such disregard of corporate form’’), cert. denied,

451 U.S. 1018 (1981).

Second, Wolfe argues that the district court improperly relied on

statements he made in a deposition.‘ Wolfe contends that no informa-

tion should have been considered by the district court other than that

contained in the stipulation between Wolfe and the Government, and

that the deposition was never properly admitted into evidence.

We need no determine the merits of Wolfe’s contentions. Even

if use of the deposition was improper, we would nevertheless affirm

the district court judgment in light of the overwhelming evidence

supporting the application of the alter ego doctrine apart from state-

ments made in the deposition. See Purer & Co. v. Aktiebolaget Addo,

410 F.2d 871, 876 (9th Cir.), cert. denied, 396 U.S. 834 (1969); accord

Lovett v. Shuster, 633 F.2d 98, 103 (8th Cir. 1980); see also Fed. R.

Civ. Pro. 61. As the district court noted, Wolfe was the sole share-

‘The parties do no dispute the district court's application of Montana's alter ego

doctrine. In determing whether there exists an alter ego from whom the Govern-

ment may satisfy the obligation of a taxpayer, we appear to be bound by state law.

See Aquilino v. United States, 363 U.S. 509, 512-13 (1960); Terrapin Leasing, Ltd.

v. United States, 55 Amer. Fed. Tax Rpts. 2d 85-513, 85-514 (10th Cir. 1981); see

also Van Dorn Co. v. Future Chemical and Oil Corp., 753 F.2d 565, 570-71 (7th

Cir. 1985) (criticizing Avco Delta for failing to inquire into applicable state law in de-

termining that the assets of the principal corporation could be reached to satisfy tax

liability of the subsidiary corporation).

‘The district court states in its memorandum: ‘‘Mr. Wolfe admitted in his deposition

that ‘[a}ll the thing [corporation] amounted to was actually a screen.’ . . . Mr. Wolfe

admitted in his deposition that ‘I don’t really see how a person could go down through

this thing and technically separate the two [the corporation and the proprietorship].’

When asked if he considered the corporation and the proprietorship to be the same

thing, he responded: ‘Yes.’"’ Memorandum Opinion, at 4 (May 22, 1985).

holder of the corporation. He was a director and president of the

corporation, and made all corporate decisions without consulting other

directors. The corporation had no bank account. Banking transactions

were conducted through the propietorship’s bank account. The

corporation’s employee was paid by the proprietorship. Some of the

corporation’s equipment was purchased on the proprietorship’s credit.

All of the corporation’s purchases were paid for on a proprietorship

bank account. When the corporation received payment from third

parties, the money was deposited into the proprietorship’s bank

account. These facts have been stipulated to by Wolfe, and are over-

whelmingly sufficient to support the finding by the district court that

Wolfe was the alter ego of his corporation.

NOTICE OF LEVY

Wolfe challenges the levy served upon him as illegal because no

assessment was made against him as a taxpayer. He argues that levies

to collect taxes can be served only upon taxpayers against whom

assessments have been made. This argument is without merit.

Section 6331 of the Internal Revenue Code empowers the Govern-

ment to collect overdue taxes by levying upon the taxpayer’s property.

The regulations to this section provide that a levy can be served upon

any person in possession of property subject to levy, by serving a notice

of levy. 26 C.F.R. SS 301.6331-1 (a) (1) (1985). Thus, levies can be

effected against any person in possession of the taxpayer’s property,

not just against the taxpayer.

Wolfe misconstrues section 6331 by arguing that a notice of levy

and a levy are distinct, and that a notice of levy, but not a levy, can

be served on persons against whom assessments have not been made.

Regulation 301.6331-1 makes clear that a notice of levy is simply a

means of effecting a levy against persons in possession of taxpayer

property.

Moreover, under alter ego theory, the assessment against the

corporation was effective against Wolfe as well. See Harns v. United

States, 764 F.2d at 1129 (under alter ego theory, assessment issued

against corporation was effective as against both shareholder and cor-

poration); see also Valley Finance, Inc. v. United States, 629 F.2d at

169 (alter ego of corporation not entitled to separate notice of

deficiency) .®

Wolfe also argues that his interest in the ICC licenses was not tax-

payer property subject to levy. However, property subject to levy

within the meaning of section 6331 and the applicable regulations is

construed broadly and reflects congressional intent that the Govern-

ment be able to reach every interest in property a taxpayer might have.

United States v. National Bank of Commerce, 105 S.Ct. 2919, 2924

(1985). The ICC licenses ostensibly owned by Wolfe could therefore

be levied upon by the Government as property of the taxpayer

corporation, through application of the alter ego theory.

The district court judgment is AFFIRMED.

For Publication

UNITED STATES COURTS OF APPEALS

FOR THE NINTH CIRCUIT

Filed December 29, 1986

Cathy A. Catterson, Clerk

U.S. Courts of Appeals

CHARLES E. WOLFE,

No. 85-4027

Plaintiff-Appellant,

VS.

ORDER AMENDING OPINION,

DENYING PETITION FOR

REHEARING AND REJECTING

SUGGESTION FOR

REHEARING EN BANC

UNITED STATES OF AMERICA,

Defendant-Appellee.

Nee eee eee eee ee Se”

>Wolfe’s reliance on United States v. Coson, 286 F.2d 453 (9th Cir. 1961), in support

of his argument that the Government’s failure to file an assessment against him

invalidated the levy is misplaced. Coson involved partnership tax liability, and since

partners and partnerships, unlike corporations and shareholders, are not separate

taxable entities, the case is distinguishable on that ground. The Coson court invalidated

a levy agains a partner because no assessments, notice or demand had been filed

against him as a taxpayer. Here, on the other hand, the Government issued the

required assessment, notice, and demand against the taxpayer corporation. Coson

does not mandate that assessments be made against third parties in possession of

taxpayer property before levies can be effected.

DC No. Cv 82-227-BLG

ANAEMIC se 2 oti co

Before: CHAMBERS and CHOY, Senior Circuit Judges, and

NORRIS, Circuit Judge.

The Opinion filed on August 29, 1986, is amended as follows:

Footnote three, 798 F.2d 1241, 1244 n.3, is replaced by the

following:

The parties do not dispute the district court’s application of Mon-

tana’s alter ego doctrine. The determination of whether to apply state

or federal alter ego doctrine depends on the degree to which the sub-

jedt matter of the case implicates federal interests. See United States

v. Kimbell Foods, Inc., 440 U.S. 715, 728-29 (1979) (setting forth

three-part test to determine whether courts should adopt a uniform

federal rule of decision or follow state law when resolving controversies

affecting the operation of federal programs). Compare Laborers Clean-

Up Contract Administration Trust Fund v. Uriarte Clean-Up Service,

Inc., 736 F.2d 516, 523-25 (9th Cir. 1984) (applying federal substan-

tive law—through looking to state law for guidance—in determining

whether to pierce corporate veil in case involving violations of Labor

Management Relations Act and Employee Retirement Income Security

Act) with U-Haul International, Inc. v. Jartran, Inc., 793 F.2d 1034,

1043 (9th Cir. 1986) (applying state alter ego doctrine in assessment

of damages for Lanham Act violations). State law governs the deter-

mination of whether there exists an alter ego from whom the govern-

ment may satisfy the obligation of a taxpayer. See Aquilino v. United

States, 363 U.S. 509, 512-13 (1960); Terrapin Leasing, Ltd. v. Unit-

ed States, 55 Am. Fed. Tax Rep. 2d 85-513, 85-514 (10th Cir. 1981);

see also Van Dorn Co. v. Future Chemical and Oil Corp., 753 F.2d

565, 570-71 (7th Cir. 1985) (indicating disapproval of Avco Delta for

failing to inquire into applicable state law in determing that assets of

the subsidiary corporation).

The following passages are deleted from the text of the opinion:

798 F.2d at 1244, col. 2, delete: ‘‘, and made ail corporate decisions

without consulting other directors’’

798 F.2d at 1244, col. 2, delete: ‘‘Some of the corporation’s equip-

ment was purchased on the proprietorship’s credit.”’

The full court has been advised of appellant’s petition for rehear-

ing and suggestion for rehearing en banc and the amendments to the

Opinion. No judge of the court has objected to the amendments or

requested a vote on the suggestion for rehearing en banc.

Fed. R. App. P. 35(b).

With the Opinion so amended the petition for rehearing is denied

and the suggestion for rehearing en banc is rejected.

LEVY

Due from: Charles E. Wolfe, dba Evergreen Express, the alter ego, agent, trans-

DEPARTMENT OF TREASURY

INTERNAL REVENUE SERVICE

feree or nominee of:

Wolfe & Co., Inc. P.O. Box 212, Billings, MT 59103

Onginating Internal Revenue District (City and State)

: Helena, Montana

KIND OF PERIOD DATE OF IDENTIFYING BALANCE OF STATUTORY TOTAL

TAX ENDED | ASSESSMENT NO. ASSESSMENT ADDITIONS

941 6-30-74 | 1l- 4-74 81-0290829 $27,686.55 $1,630.26 $

2,260.09 31,572.90

941 9-30-74 | 12-30-74 26,095.76 1,375.65

1,843.71 29,315.12

941 12-31-74 3-24-75 1,273.35 72.66 1,346.01

941 3-31-75 6-23-75 4,020.55 118.37

168.78 4,307.70

720 9-30-74 2-24-75 3,678.40 154.46

: 224.42 4,057.28

720 12-31-74 6- 2-75 3,905.26 104.15

175.97 4,185.38

720 6-30-75 | 10-27-75 3,778.82 33.97

44.17 3,856.96

TOTAL AMOUNT DUE $78,641.35

There is now due, owing, and unpaid with respect to the above-named account, the amounts set

forth herein for internal revenue taxes for which notice and demand has been made for payment.

Section 6331, Internal Revenue Code, authorizes collection of taxes by levy upon all property or

rights to property of a taxpayer (except property that is exempt under section 6334) or on which

the lien provided by section 6321 exists. Therefore, under the provisions of section 6331, so much

of the property or rights to property, either real or personal, as may be necessary to satisfy the

unpaid balance of assessment set forth herein together with additions provided by law, including fees,

costs, and expenses of this levy, are hereby levied upon in order to satisfy the taxes and additions.

(T/P or T/P’s representative's name)

Dated at Billings, MT this 2nd day of December, 1975

Signed: D.L. Leifert, Revenue Officer

SPS SEIZURE FILE

was presented inventory.

C) Yes

® No

ioe name

URN

Date: November 26, 1975

TO: Interstate Commerce Commission

Room 222

Post Office Building

NOTICE OF LEVY

2602 First Avenue North

Billings, MT 59101

INTERNAL REVENUE SERVICE

Originating District: Helena, Montana

You are hereby notified that there is now due, owing, and unpaid to the United States of America, from

the taxpayer whose name appears below, the sum of $78,641.35

TAX UNPAID

KIND OF | PERIOD DATE OF IDENTIFYING BALANCE OF STATUTORY TOTAL

TAX ENDED | ASSESSMENT NO. ASSESSMENT ADDITIONS

941 6-30-74 | ll- 4-74 81-0290829 $27,686.55 $3,890.35 $31,572.90

941 9-30-74 | 12-30-74 af 26,095.76 3,219 36 29,315.12

941 12-31-74 3-24-75 1,273.35 72.66 1,346.01

720 9-30-74 2-24-75 3,678.40 378.88 4,057.28

720 12-31-74 6- 2-75 3,905.26 280.12 4,185.38

720 6-30-75 | 10-27-75 3,778.82 78.14 3,856.96

941 3-31-75 6-23-75 4,020.55 287.15 4,307.70

TOTAL AMOUNT DUE $78,641.35

You are further notified that demand has been made for the amount set forth herein upon the taxpayer

who has neglected or refused to pay, and that such amount is stil due, owing, and unpaid from this

taxpayer. Accordingly, you are further notified that all property, rights to property, moneys, credits,

and bank deposits mow in your possession and belonging to this taxpayer (or with respect to which

you are obligated) and all sums of money or other obligations owing from you to this taxpayer, or

on which there is a lien provided under Chapter 64, Internal Revenue Code, are hereby levied upon

and seized for satistaction of the aforesaid tax, together with all additions provided by law, and demand

is hereby made upon you for the amount necessary to satisfy the liability set forth herein, or for

such lesser sum as you may be indebted to him to be applied as a payment on his tax liability. Checks

or money orders should be made payable to the Internal Revenue Service.

Signed: D.L. Leifert, Revenue Officer, Billings, Montana

Phone: 245-6711, ext. 6265

Name and Address of Taxpayer:

Charles E. Wolfe, dba Evergreen Express,

the alter ego, agent, transferee or nominee of

Wolfe & Co., Inc.

P.O. Box 212

Billings, MT 59103

CERTIFICATE OF SERVICE

I hereby certify that this notice of levy was served by delivering a copy of it to the person name below.

Name: Paul Labane

Title: Department Supervisor

Date and Time: 12-2-75 — 10:30 a.m.

Signature of Revenue Officer or Service Representative: D.L. Leifert

NOTICE OF SEIZURE

DEPARTMENT OF THE TREASURY

INTERNAL REVENUE SERVICE

Name and Address:

Interstate Commerce Commission

Room 222

Post Office Building

2602 1st Ave. No.

Billings, MT 59101

Pursuant to the authority in section 6331 of the Internal Revenue Code and by virtue of a levy placed in

my hands for execution by the District Director of Internal Revenue of the district shown below, I have seized

the following described property for nonpayment of delinquent internal revenue taxes:

Due from: Charles E. Wolfe, dba Evergreen Express, the alter ego, agent, trans-

feree or nominee of:

Wolfe & Co. Inc., P.O. Box 212, Billings, MT 59103.

In the amount of: $78,641.35

Internal Revenue District (City & State):

Helena, MT

Description of Property

Interstate Commerce Commission Certificate of Public Convenience & Necessity, Number

MC129350 Sub 1

* ? ” ? * , ? Sub 4

” ” ” ? ? ” ? 5

Total of Thirteen Certificates

Signature of Revenue Officer:

D.L. Leifert

Address: 711 Central Ave., Billings, MT

Date: 12-2-75

NOTICE OF LEVY

Date: August 19, 1976

To: C.M. Burns

dba Western Trucking

Baker, Montana

INTERNAL REVENUE SERVICE

Originating District: Helena, Montana

You are hereby notified that there is now due, owing, and unpaid to the United States of America, from

the taxpayer whose name appears below, the sum of $117,151.81

TAX UNPAID

KIND OF | PERIOD DATE OF IDENTIFYING BALANCE OF STATUTORY TOTAL

TAX ENDED | ASSESSMENT NO. ASSESSMENT ADDITIONS

941 6-30-74 | 11- 4-74 81-0290829 $27,686.55 $6,410.66 $34,093.21

941 9-30-74 | 12-30-74 = 26,095.76 5,610.71 31,706.47

941 12-31-74 3-24-75 471.50 101.74 573.24

941 3-31-75 6-23-75 i 4,020.55 674.23 4,694.78

941 12-31-74 6- 2-75 ty 462.60 18.07 480.67

941 9-30-75 | 12- 8-75 sj 26,929.65 2,580.28 29,509.93

941 12-31-75 3-29-75 - 672.10 19.95 692.05

720 9-30-74 2-24-75 = 3,670.40 707.64 4,378.04

720 12-31-74 6- 2-75 x 3,905.26 637.95 4,543.21

720 6-30-75 | 10-27-75 i 3,778.82 425.47 4,204.29

720 9-30-75 2-16-76 ‘ 1,780.72 125.41 1,906.13

2290 6-30-75 9- 8-75 360.12 9.67 369.79

TOTAL AMOUNT DUE /$117,511.81

You are further notified that demand has been made for the amount set forth herein upon the taxpayer

who has neglected or refused to pay, and that such amount is stil due, owing, and unpaid from this

taxpayer. Accordingly, you are further notified that all property, rights to property, moneys, credits,

and bank deposits now in your possession and belonging to this taxpayer (or with respect to which

you are obligated) and all sums of money or other obligations owing from you to this taxpayer, or

on which there is a lien provided under Chapter 64, Internal Revenue Code, are hereby levied upon

and seized for satisfaction of the aforesaid tax, together with all additions provided by law, and demand

is hereby made upon you for the amount necessary to satisfy the liability set forth herein, or for

such lesser sum as you may be indebted to him to be applied as a payment on his tax liability. Checks

or money orders should be made payable to the Internal Revenue Service.

Signed: D.L. Leifert, Revenue Officer, Billings, Montana

Phone: 245-6711, ext. 6265

Name and Address of Taxpayer:

Charles E. Wolfe, dba Evergreen Express,

the alter ego, agent, transferee or nominee of

Wolfe & Co., Inc.

P.O. Box 212 Q

Billings, MT 59103

CERTIFICATE OF SERVICE

I hereby certify that this notice of levy was served by delivering a copy of it to the person named below.

Name: John R. Davidson

Title: Attorney for C.M. Burns

Date and Time: 9-1-76 — 2:45 p.m.

Signature of Revenue Officer or Service Representative:

D.L. Leifert

NOTICE OF LEVY

Date: December 29, 1976

To: Hart Motor Express

c/o John Davidson

Midland Bank Building

Billings, Montana

INTERNAL REVENUE SERVICE

Originating District: Helena, Montana

You are hereby notified that there is now due, owing, and unpaid to the United States of America, from

the taxpayer whose name appears below, the sum of $114,968.02

TAX UNPAID

KIND OF} PERIOD DATE OF IDENTIFYING BALANCE OF STATUTORY TOTAL

TAX ENDED | ASSESSMENT NO. ASSESSMENT ADDITIONS

941 6-30-74 | ll- 4-74 81-0290829 $20,557.55 $7,405.31 $27,962.86

941 9-30-74 | 12-30-74 ™ 26,099.76 6,720.26 32,820.02

941 12-31-74 3-24-75 45 471.50 113.56 585.06

941 3-31-75 | 6-23-75 4,020.55 853.01 4,873.56

941 6-30-75 | 9-15-75 462.60 29.61 492.21

941 9-30-75 | 12- 8-75 26,938.65 3,756.18 30,693.83

941 12-31-75 | 3-29-75 672.10 36.72 708.82

720 9-30-74 2-24-75 ‘- 3,670.40 850.85 4,530.25

720 12-31-74 6- 2-75 i 3,905.26 803.48 4,708.74

720 6-30-75 | 10-27-75 3,778.82 686.28 4,365.10

720 9-30-75 2-16-76 1,780.72 202.86 1,983.58

2290 6-30-75 9- 8-75 3 360.12 18.78 378.90

2290 6-20-76 9- 8-75 ve 820.42 ~ 44.67 865.09

TOTAL AMOUNT DUE _ {$114,968.02