Constitutionality

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E.L. Peister and Rose Peister, Plaintiffs v. Alvin D. Leach, et al., Defendants

U.S. District Court, Dist. Colo., 83-M-2410, 1/22/86

[Code Secs. 6212 , and 6322 , and 28 USC §2201 ]

Suits by taxpayers: Immunity of IRS agents: Deficiencies: Notice: Lien: Constitutionality: Declaratory judgment action.--Under the doctrine of qualified immunity, IRS agents were immune from a suit by taxpayers seeking damages because the taxpayers allegedly were classified as illegal tax protestors and deprived of equal protection and due process when deficiency notices were improperly mailed, liens were placed on them and property belonging to their church was seized. The agents' conduct was reasonable because the agents complied with statutory and case law in mailing the deficiency notice to the taxpayers' address as given on their last income tax return and the taxpayers did not show a violation of any clearly established constitutional rights. The taxpayers' declaratory judgment action, seeking to declare that agents or agencies of the federal government cannot label persons as "tax protestors" and discriminate against such class, was dismissed because such action was barred by sovereign immunity and the court was barred from granting relief with respect to an action involving the collection of federal taxes.

MEMORANDUM OPINION AND ORDER

 

MATSCH, District Judge:

Plaintiffs filed a Complaint for approximately $5 million in damages resulting from the denial and abridgment of constitutionally protected rights and a petition for declaratory judgment on December 13, 1983 . The plaintiffs claim that the defendants conspired to deprive them of their rights under the United States Constitution, article I, section 9, clause 3 and the first, fifth, and ninth amendments; and corresponding provisions of the Colorado Constitution. In addition, plaintiff E.L. Peister claims deprivation of his rights under the seventh amendment to the U.S. Constitution and article II, section 25 of the Colorado Constitution.

Plaintiffs allege that they were placed in a certain class of persons and individuously discriminated against without benefit of trial when liens were placed on E.L. Peister without notice, and when property belonging to their church was seized without prior notification. They further assert that although their last known mailing address was known to defendants, they purposefully did not use it when mailing notices required to be sent to Mr. Peister, thereby violating plaintiffs' equal protection and due process rights. Plaintiff E.L. Peister also alleges that he was deprived of his constitutionally protected right to contract (i.e., his right to give his possessions to the church) without benefit of trial, thus depriving him of his right to a jury trial under the seventh amendment. Defendants moved to dismiss or for summary judgment and a hearing was held on these and other related claims on December 23, 1985 .

The facts giving rise to this controversy are as follows: Plaintiffs took a vow of poverty and conveyed all of their property to the First Lutheran Mission of the Knolls Church on December 31, 1975 . They have not filed tax returns for the subsequent years based on their belief of exemption.

On August 25, 1981, notices of deficiency were mailed to E.L. Peister at 3624 East Fremont Place , Littleton , Colorado 80122 for the years 1976, 1977, 1978, and 1979. These notices were not returned. On August 31, 1981, Mr. Peister sent letters to several Internal Revenue Service agents with a return address of 3624 East Fremont Place . On October 6, 1981 Mr. Peister wrote to the I.R.S. District Director, Gerald Mihlbachler, at his home address, using a return address of Box 2827 , Littleton , Colorado 80122 . Mr. Mihlbachler sent his response to plaintiffs' Box 2827 address on November 25, 1981. Officer Caughron personally contacted Mr. Peister on June 1, 1983, giving his card to the plaintiff with the request that he contact the officer to resolve the unpaid tax liabilities. Mr. Peister did not contact Officer Caughron. On July 15, 1983, Officer Caughron mailed a Final Notice and Demand for Payment to E.L. Peister at 1111 W. Wolfenberger Road , Castle Rock, Colorado , by certified mail. The notice was returned by the postal service. On August 5, 1983 Revenue Officers Caughron and Frazier drove to the plaintiffs' residence at 1111 W. Wolfenberger Road and informed Mr. Peister of the intent to seize the house, read the levy to him and gave him a copy of the levy and the notice of seizure.

The United States has since removed their lien on the property owned by the First Lutheran Mission of the Knolls as a result of a quiet title action by the church.

The United States , as a sovereign entity, may be sued only to the extent it has consented to suit by statute. United States v. Testan, 424 U.S. 392, 399 (1976); United States v. Sherwood, 312 U.S. 584, 586 (1941). This doctrine cannot be circumvented by naming an officer of the sovereign as defendant. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 688-89 (1949).

Defendants argue that the declaratory judgment action is actually being brought against the government. "The general rule is that a suit is against the sovereign if 'the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,' or if the effect of the judgment would be 'to restrain the Government from acting, or to compel it to act.' " Dugan v. Rank, 372 U.S. 609, 620 (1963) (citations omitted).

The plaintiffs are asking this court to declare that agents or agencies of the U.S. Government cannot label persons as "tax protestors" or "illegal tax protestors" and thereafter discriminate against or deny constitutional rights to those persons through that classification. Since the relief requested would impact upon the government and its operations, rather than on the individual officials, the defendants are correct in their allegation that the action is against the sovereign. The Internal Revenue Service, an agency of the United States goverment, is not a suable entity and the complaint has failed to establish that the U.S. has waived sovereign immunity with respect to such suits. See Dugan, 372 U.S. at 617-18.

In addition, the Declaratory Judgment Act, 28 U.S.C. §2201 , bars federal courts from granting declaratory relief with respect to all cases involving federal taxes. See Flora v. United States [60-1 USTC ¶9347 ], 362 U.S. 145, 164-65 (1960). The statute was enacted to facilitate the orderly and prompt determination and collection of federal taxes and to prevent interference by a procedure designed to settle private controversies. Id. at 164, (quoting S. Rep. No. 1240, 74th Cong., 1st Sess. 11).

This case involves a controversy concerning the collection of federal taxes. Accordingly, this court lacks both subject matter jurisdiction and personal jurisdiction to grant the declaratory judgment sought by the plaintiffs.

The plaintiffs ask for approximately $5 million in damages for violation of their constitutional rights. They allege that they are entitled to money damages because they have been classified as illegal tax protestors and deprived of equal protection and due process of the law.

Government officials are entitled to some form of immunity from suits for damages. Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982). Judicial, prosecutorial and legislative functions require absolute immunity. Id. at 811. Other officials involved in making discretionary decisions are given qualified immunity. Id. at 814.

Implicit in the idea that officials have immunity is a recognition that they may err and that it is better to risk some error and possible injury than not to decide or act at all. Scheuer v. Rhodes, 416 U.S. 232, 242 (1974). In identifying qualified immunity as the best attainable accommodation of competing values, in Butz and Scheuer, the Supreme Court relied on the assumption that this standard would permit "[i]nsubstantial lawsuits [to] be quickly terminated." Butz v. Economou, 438 U.S. 478, 507-08 (1978), quoted in Harlow, 457 U.S. at 814.

Defendants, in this case, are entitled to qualified immunity. See G.M. Leasing Corp. v. United States [77-2 USTC ¶9597 ], 560 F.2d 1011, 1014 (10th Cir. 1977), cert. denied, 435 U.S. 923 (1978) (duty of levying upon property in satisfaction of IRS jeopardy assessments not of such nature as to justify absolute immunity). Under the qualified immunity doctrine, officials "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 418. The Supreme Court reaffirmed this objective standard in Davis v. Scherer, 104 S. Ct. 3012 (1984).

Plaintiffs allege that they did not receive notice of the actions taken against them and were therefore denied due process. Defendants contend that their actions were within the scope of their duties as I.R.S. agents and did not violate the constitutional rights of the plaintiff. Section 6212 of the Internal Revenue Code authorizes the Secretary of the Treasury or his delegate to send notice of a tax deficiency to a taxpayer by certified or registered mail to his last known address. Exactly what constitutes a taxpayer's "last known address" is an unsettled question.

The Commissioner is required to exercise reasonable care and diligence in determining a taxpayer's last known address for the purpose of mailing a notice of deficiency. Green v. United States [77-2 USTC ¶9564 ], 437 F. Supp. 334, 337 (N.D. Okla. 1977). A taxpayer's last known address has been held, therefore, to be an address to which the Commissioner reasonably believes the taxpayer wishes the notice be sent. Id. The Commissioner may ordinarily rely on the taxpayer's most recent tax return unless "clear and concise" notice is provided by the taxpayer subsequent to that return. Cyclone Drilling, Inc. v. Kelley [85-2 USTC ¶9595 ], 769 F.2d 662, 664 (10th Cir. 1985). Clear and concise notice is notice by which the taxpayer indicates that he wishes the new address to replace all old addresses. Id. Such an indication of replacement may be either explicit or implicit (subsequent tax return bearing new address). Id.

The I.R.S. mailed the notice of deficiency to plaintiffs' address as given on his last income tax return. None of the defendants had yet received any other addresses for the plaintiffs. All of these actions were taken in accordance with the I.R.S. code and therefore, defendants' conduct was reasonable. (In oral argument Mr. Peister referred to the notice of levy which was sent to 1111 W. Wolfenberger Road . Since plaintiffs claim no interest in the property levied upon they have no standing to challenge the procedures involved in procuring that levy.)

Plaintiff also contends that the agents involved did not act in good faith. An official's subjective good faith is irrelevant to the question of qualified immunity. Davis, 104 S.Ct. at 3018. The test is one of objective reasonableness as measured by clearly established law. Id. In Davis , the Supreme Court found that officials do not lose their qualified immunity merely because their conduct violates some statutory or administrative provision, and that the plaintiff must show a violation of his clearly established constitutional rights. Id. at 3021. In light of this recent decision, the case at hand is one which can be appropriately disposed of by summary judgment. In this case, the I.R.S. agents complied with statutory and case law in giving notice of the deficiency. There is no precedent to the contrary. They are therefore immune from suit under the doctrine of qualified immunity.

Accordingly, it is

ORDERED that defendants' motion for summary judgment on the constitutional claims against individual I.R.S. agents is granted, and that defendants' motion to dismiss on the declaratory judgment claim is also granted.

 

 

 

Vada Baldassari and James P. Baldassari, Jr., Plaintiffs and Respondents v. The United States of America , Defendant and Appellant

Calif. Court of Appeals, Third Appellate Dist., 3 Civil 16871, 3/30/78, (144 CalRptr 741)

[Code Sec. 6321--result unchanged by 1976 Tax Reform Act]

Liens for taxes: Nominee liens: Constitutionality: Pre-filing hearing: Need for.--The government properly filed a tax lien against the plaintiffs as nominees without holding a hearing before the lien was filed. Due process requirements were satisfied because the plaintiffs had (and used) a post-filing opportunity to bring a quiet title action to discharge the lien.

Earl D. Kendall, Sr., Frank Samstag, for plaintiffs and respondents. D. Dwayne Keyes, United States Attorney, M. Carr Ferguson, Assistant Attorney General, Myron C. Baum, Acting Assistant Attorney General, Gilbert E. Andrews, Aaron P. Rosenfeld, Harold S. Larsen, Department of Justice, Washington, D. C. 20530, for defendant and appellant.

REGAN, Associate Justice:

In this Placer County Superior Court action to quiet title to two parcels of real property which had been subjected to federal "nominee" tax liens, plaintiffs' motion for summary judgment decreeing the liens to be invalid as a matter of law was granted. This appeal followed.

[Background]

On May 27, 1974, penalties were assessed against James P. Baldassari, Sr. (hereafter sometimes referred to as taxpayer), pursuant to section 6672 of the Internal Revenue Code of 1954 (James P. Baldassari, Sr., is the husband of plaintiff Vada Baldassari and the father of plaintiff James P. Baldassari, Jr.). On November 26 and November 28, 1975, the Internal Revenue Service (IRS) filed a notice of federal tax lien, listing as taxpayer "Vada Baldassari as nominee of James P. Baldassari", on property hereafter referred to as the Nicholas Road property. On March 10, 1976, the IRS filed a notice of federal tax lien, listing as taxpayer "James P. Baldassari, Jr., and Vada Baldassari as nominees of James P. Baldassari," on property hereafter referred to as Route 1.

It is these notices of federal tax lien which are the subject of the plaintiffs' complaint to quiet title, which was brought pursuant to both federal and state statute (28 U. S. C. A. §2410; Code Civ. Proc., §738). The plaintiffs allege in their complaint and in their motion for summary judgment, that as of June 24, 1975, they were the sole owners of the Route 1 property, as joint tenants, that they were not the nominees of James P. Baldassari, Sr., and that they did not owe any federal income tax. It was further alleged that the Nicholas Road property had been deeded to Vada Baldassari as her sole and separate property, that she was not the nominee of James P. Baldassari, Sr., and that she did not owe any federal income tax.

Plaintiffs contend that the IRS had no authority to file "nominee" liens and further contend that the filing of such liens deprives them of their property without due process of law in violation of the Fifth Amendment to the federal Constitution.

Defendant United States filed an opposition to plaintiffs' motion, asserting that the nominee liens were neither beyond the authority of the IRS nor unconstitutional, and that summary judgment was inappropriate because there existed material issues of fact concerning whether plaintiffs were the true owners of the properties or were merely holding title thereto as nominees of the taxpayer.

The trial court, while accepting defendant's position that the IRS had the authority to file nominee liens, nevertheless was of the opinion plaintiffs were denied due process of law in that "Some sort of hearing is mandatory before the lien attaches under constitutional requirements."

[Nominee Liens]

The liens in question arose pursuant to section 6321 of the Internal Revenue Code of 1954, which provides for liens in favor of the United States against real property belonging to a taxpayer in the amount of the tax assessed plus interest and penalties. Although legal titles to the properties in question were not in the taxpayer (Baldassari, Sr.) the IRS determined through information evidenced by depositions, documents and materials filed with the lower court that the two parcels of real property were likely held by plaintiffs as "nominees" only and that the property in reality was that of the taxpayer, transferred to put it beyond reach of creditors. Having so determined, it was necessary for the notice of lien to be filed and recorded in nominee form since section 6323 of the Internal Revenue Code of 1954 provides that no such lien is valid as against any purchaser, holder of a security interest, mechanic's lien, or judgment lien creditor until proper notice thereof has been filed pursuant to law.

Although plaintiffs take issue with authorities cited by defendant, we are convinced that the statutory pattern of the internal revenue laws and the cases, taken together, authorize the filing of nominee liens under circumstances in which the IRS has reasonable cause to believe that the property against which the lien is filed may have been transferred to a third party to avoid creditors, including the federal government to which taxes are owed or expected to be owed. Internal Revenue Code section 6321 has been held by the United States Supreme Court not only to afford the right to impose a lien on property in the hands of a third party straw man or alter ego, but the court went further and held that section 6331 permitted levy (distraint, seizure and sale) upon property. [G. M. Leasing Corp. v. United States (1977) [77-1 USTC ¶9140] 429 U. S. 338, 350-351 [50 L. Ed. 2d 530, 542].) Plaintiffs would attempt to restrict a holding such as that in the G. M. Leasing case to a strictly "taxpayer lien" where the transfer of property has taken place only after tax assessments were made and other liens filed, or where deficiency hearings were being held, or other administrative determinations of ownership had previously been made. We do not see the powers of the federal government to collect or assure the collection of taxes as so restricted. For example, it has been held that the statutory right of the government to collect taxes from a transferee of a taxpayer's property by imposition of a lien thereon, where the property was fraudulently transferred to avoid its seizure, is quite analogous to the common law remedies in cases of fraudulent transfers. (See, e.g., United States v. Kensington Shipyard & Drydock Corp. (3d Cir. 1950) [51-1 USTC ¶9200] 187 F. 2d 709, 712-713.)

Such summary procedures as described above do not violate due process of law by not affording a prefiling hearing, since there exists a procedure for a later judicial determination of all the issues of actual liability. (Phillips v. Commissioner of Internal Revenue (1931) [2 USTC ¶743] 283 U. S. 589, 593-595 [75 L. Ed. 1289, 1295-1296], see also Felland v. Wilkinson (W. D. Wis. 1928) 33 F. 2d 961, 962-963.)

Plaintiffs would draw an analogy between the tax lien procedures and the prejudgment attachment of real property which was declared unconstitutional in Randone v. Appellate Department (1971) 5 Cal. 3d 536. No such analogy exists. Attachment under the California statutes in Randone involved a seizure of property. In the tax case before us there is no seizure in the Randone sense. It was a failure to recognize this which, at least in part, led the trial court to base the summary judgment on "seizure" without a hearing. We do not perceive a "seizure" in the constitutional sense, as the term was used by the trial court, in the act of filing notices of tax liens. The notice procedure did not deprive plaintiffs of their title, control, possession or enjoyment of the properties in question. The only effect was to place a cloud on the title. We are aware of no cases holding that such a filing of lien is a taking or seizure of property in the constitutional sense. In this connection, we note that the creation of the statutory automatic tax lien (§6321) upon real property owned by a delinquent taxpayer has been held to be a proper exercise by Congress of its constitutional authority to levy and collect taxes. (Michigan v. United States (1943) 317 U. S. 338, 340 [87 L. Ed. 312, 314].) The purpose of filing the notice of lien was not to create it, but only to maintain its priority over certain other liens, as provided in Internal Revenue Code section 6323.

Were we to assume, arguendo, that the filing of the notice of lien could be regarded as a "seizure" of plaintiffs' property, there would still be no right to a prefiling hearing. The United States Supreme Court has made it clear that a prior hearing is not necessary even to collect taxes by seizure and sale of property. Thus, in Phillips v. Commissioner of Internal Revenue, supra, the court pointed out that with respect to taxes, property rights must yield provisionally to governmental needs, and where opportunity is afforded for a later determination of legal rights, summary procedures to collect taxes are valid. (See 283 U. S. at p. 595 [75 L. Ed. 1296]; see, in accord, Fuentes v. Shevin (1972) 407 U. S. 67, 91-92 [32 L. Ed. 2d 556, 576]; Kelly v. Springett (9th Cir. 1975) 527 F. 2d 1090; Bomher v. Reagan (9th Cir. (1975) 522 F. 2d 1201, 1202.) This reasoning and rule is applied whether the property from which the tax revenue is to be obtained is in the hands of the taxpayer himself or is reasonably believed to be his property in the hands of a transferee or nominee. (See Bos Lines, Inc. v. C. I. R. (8th Cir. 1965) [66-1 USTC ¶9149] 354 F. 2d 830, 834-835.) The collection of taxes without prior hearing being constitutional, the filing of liens preceding any collection, without prior hearing, is a fortiori constitutional, so long as there is an effective post-filing hearing procedure.

There is such post-filing procedure here. Section 2410 of the United States Code provides for a quiet title action to discharge a federal lien on property to be filed in either a federal or state court. This procedure is pursued herein by plaintiffs. It follows that since plaintiffs have the opportunity to establish that they are in fact the true owners, the trial court erred in holding that there was an unconstitutional seizure of property. Moreover, since the parties have shown no statutory requirement of a prefiling hearing for nominee liens and we have found none in our own research, ¹ there can be no sound basis for this summary judgment. The record shows the existence of an issue of fact as to the true ownership of the land in question, insofar as federal tax liability is concerned. The instant action is the vehicle for deciding such issue. The validity of the tax liens depends upon whether plaintiffs are the bona fide owners of the properties or are only nominees.

The judgment is reversed and the cause remanded to the trial court for trial on the issues framed by the complaint, the answer and any pretrial order.

¹ See, e.g., Internal Revenue Code sections 6331, 6901, 7402.

 

 

 

John A. and Mary Sue Garcia, et al., Appellants v. United States of America , Appellee

(CA-5), U. S. Court of Appeals, 5th Circuit, No. 25632, 421 F2d 1231, 1/20/70, District Court affirmed

[Code Sec. 641]

Trusts: Creation: Validity: Agency arrangement distinguished.--Where an alleged trust for minor children was not a validly created trust but was merely an agency arrangement, the property allegedly owned by the trust belonged to the taxpayers and was subject to government tax liens. The trust instrument failed to mention any of the property in question, and the taxpayers retained complete control over the trust operations, the disposition of its income, and the use and management of the property.

[Code Sec. 6322]

Liens: Enforcement procedure: Constitutionality.--There was no merit in the taxpayers' contentions that they had been deprived of their constitutional rights through the government's lien enforcement procedures. The taxpayers claimed that the judgments against them were so large, that the tax liens were so detrimental to their property, and that the government was so arbitrary in using enforced collection procedures and in insisting that the judgments be paid that they were deprived of their property without due process of law and were subject to involuntary servitude for the rest of their lives. Also, the taxpayers were found not to have been unconstitutionally deprived to counsel before the trial court which had refused their petition for appointment of counsel because they were not indigent.

Edward A. Copley, 2800 Republic Nat'l Bank Bldb., Dallas , Tex. , for appellants. Mitchell Rogovin, Assistant Attorney General, Lee A. Jackson, Meyer Rothwacks, Harry Marselli, Carolyn R. Just, Crombie J. D. Garrett, Department of Justice, Washington, D. C., 20530, Ted Butler, United States Attorney, Andrew L. Jefferson, Jr., Assistant United States Attorney, San Antonio, Tex., for appellee.

Before RIVES and GODBOLD, Circuit Judges, and NOEL, District Judge.

[Constitutionality Issues]

GODBOLD, Circuit Judge:

This appeal is from a judgment of the District Court reducing to judgment assessments of income tax liabilities, penalties and interest and foreclosing tax liens on real property of the taxpayers located in Texas . The validity of the assessments is not contested on this appeal, other than on constitutional grounds discussed below.

[Appointive Counsel]

The taxpayers, John A. and Mary Sue Garcia, claim that they were unconstitutionally deprived of counsel before the District Court and before this Court. We do not reach the question whether there ever may be a constitutional right to appointive counsel in complex civil cases as this, because the District Court, in considering taxpayers' petition for appointment of counsel, concluded that they were not indigent and, therefore, under no circumstances could be entitled to appointive counsel. This factual determination was not clearly erroneous and we do not disturb it. Fed. R. Crim. P. 52.

[Lien Enforcement Procedures]

Taxpayers also assert that they were deprived of rights guaranteed them by the Fifth, Eighth, Thirteenth, and Fourteenth Amendments to the Constitution. Marshalling and construing the wide-ranging thrusts of their contentions, the substance appears to be that judgments against them are so large and the liens so detrimental to their property, and the government so arbitrary in using "enforced collection procedures" and in insisting that the judgments be paid, that the taxpayers are deprived of their property without due process, deprived of equal protection, subjected to cruel and unusual punishment, and are in involuntary servitude for the rest of their lives. None of these contentions has any merit.

[Existence of Trust]

A separate issue is raised by other appellants as to one piece of real estate. While taxpayers were involved in their tax controversies with the government they purported to set up a trust for their minor children, the Garcia Educational Trust. The District Court held that a valid trust was not created but the arrangement was merely one of agency, so that the real estate allegedly owned by the Trust in fact belonged to the taxpayers and hence was subject to the government's lien and to foreclosure thereof. The minor beneficiaries of the Trust have appealed from this determination, and by direction of this Court counsel ad litem have been appointed to represent them on the appeal.

The District Court correctly found that no trust was created. The instrument purporting to create it spells out that the trust is created, designates the beneficiaries and names a trustee (an attorney), describes the powers of the trustee and establishes a termination date for the purported trust. That is all it does. It does not mention or even purport to deal with subject matter property of any description, which is indispensable for creation of a trust relationship. There is no transfer to the trustee of anything of value, therefore no trust was created by inter vivos transfer. Golob v. Stone, 262 S. W. 2d 536, (Tex. Civ. App. 1953); Vernon 's Ann. Civ. St. art. 7425b-7; 1 Scott, Trusts, §§ 17, 26.2, 32. The settlors do not declare themselves trustees of property for another, Scott, supra, §§ 17, 17.1, 17.4, 18; Vernon 's Ann. Civ. St. art. 7425b-7(A). The settlors do not promise to transfer property to another as trustee, Scott, supra, §§ 17.3, 17.4, 22; Vernon 's Ann. Civ. St. art. 7425-7(E). The settlors do not purchase property in the name of another as trustee for him, Scott, supra, §19.

The District Court had before it detailed evidence of the purchase by the trustee of the real estate in question, furniture and fixtures, equipment, and automobiles, all at the direction of Dr. Garcia, and of the effectual control by Dr. Garcia of the operations of the Trust, the disposition of trust income, the use and management of its property (at times for his benefit without consideration or less than full consideration), and the employment of the Trust as a conduit to obtain loans and then lend the money to himself without interest. The District Court did not err in concluding that the purported and abortive creation of a trust was in fact only an agency arrangement.

The minor beneficiaries insist that absent a specific finding of fraud the existence of a trust must be determined from the face of the creating instrument, and the District Court could not look at the surrounding, and subsequent, facts and circumstances. But, as we point out above, the instrument was not even facially effectual to create a trust.

AFFIRMED.