6337 Annotations: Representations- Levy

Redemption of Properly: Representations

[72-2 USTC ¶9507]Kenneth E. Fidler, Plaintiff v. United States of America , and Robert E. Liegel, Defendants

U. S. District Court, No. Dist. N. Y., 72-CV-81, 4/20/72

[Code Sec. 6325]

Lien for taxes: Property subject to lien sold: Jurisdiction as to U. S.: Taxpayer's redemption rights.--The Court dismissed an action by the taxpayer with respect to his redemption rights against the U. S. in property sold for taxes, but set a date for trial on the issue against the holder of the certificate of sale. The dismissal as to the U. S. was based on lack of jurisdiction or, alternatively, on failure to state a claim on which relief could be granted.

Warren W. Bader, Costello, Cooney & Fearon, 600 Monroe Bldg., Syracuse , N. Y., for plaintiff. James M. Sullivan, Jr., United States Attorney, Syracuse , N. Y., J. Brian Ferrel, Department of Justice, Washington , D. C. 20530, for defendant United States . Robert G. Liegel, Failmezger & Liegel, 716 State Tower Bldg., Syracuse, N. Y., for defendant Robert E. Liegel.

Memorandum-Decision and Order

PORT, District Judge:

This is an action by the plaintiff taxpayer against the United States and the defendant Liegel, holder of a certificate of sale to certain real property of the plaintiff sold to satisfy unpaid tax liens against the plaintiff. The plaintiff questions neither the underlying assessment, the tax liens, nor the regularity of the sale. He claims that his right to redemption was interfered with by reason of representations made to him by the defendants.

[Defendants' Motions]

Both defendants have moved pursuant to Rule 12(b) of the Federal Rules of Civil Procedure to dismiss the action for lack of jurisdiction and for failure to state a claim.

The action against the United States must be dismissed for lack of jurisdiction or, in the alternative, for failure to state a claim. See Falik v. United States [65-1 USTC ¶9295], 343 F. 2d 38 (2d Cir. 1965) and Fidler v. United States, Civil Number 72-CV-150, decided today.

Insofar as the defendant Liegel is concerned, there are questions of fact which should be disposed of on a trial. Accordingly, the case is set down for a hearing at Auburn , New York , at 10:00 a. m. on May 3, 1972 .

[Show Cause Order]

Prior to the institution of the above-captioned action, an order was obtained by the plaintiff requiring the defendant to show cause why the United States, its officers and agents should not be stayed from conveying title to the real property covered by the certificate of sale. The order to show cause contained a stay which has been continued to date by consent of the parties. The order to show cause was filed with the Clerk of the Court by the plaintiff as a separate action and was accorded Civil Number 71-CV-591. In view of the disposition made in the above-captioned action, the order to show cause has been mooted and should be dismissed in order that the Clerk's docket may be cleared.

For the reasons herein, it is

ORDERED, that the stay heretofore granted in the show cause order in 71-CV-591 be and it hereby is vacated; and it is further

ORDERED, that an action in this court entitled Kenneth E. Fidler, Plaintiff v. United States of America , Robert E. Liegel, Defendants, 71-CV-591, be and the same hereby is dismissed as moot; and it is further

ORDERED, that the motion of the defendant United States to dismiss the complaint in 72-CV-81 be and the same hereby is granted; and it is further

ORDERED, that judgment be entered dismissing the above-entitled action (72-CV-81) against the United States for lack of jurisdiction or, in the alternative, for failure to state a claim upon which relief can be granted; and it is further

ORDERED, that the issues between the plaintiff and the defendant, Robert E. Liegel, in the above-entitled action be and they hereby are set down for trial at a session of this court to be held at the United States Post Office & Courthouse, Auburn , New York , at 10:00 a. m. on May 3, 1972 ; and it is further

ORDERED, that pending the disposition of this action, the defendant, Robert E. Liegel be and he hereby is restrained from surrendering the Certificate of Sale of Seized Property dated August 23, 1971 relating to realty and improvements at West Lake Road, Skaneateles, New York signed by Walter K. Benchley, and receiving therefore a deed pursuant to 28 U. S. C. §6338.