David Bohn, Appellee, v. United States of America et al., Appellants, 467 F.2d 1278 (8th Cir. 1972)

Appellee Bohn was arrested by F.B.I. agents in a Minnesota parking lot and charged with conducting a gambling business in violation of 18 U.S.C. § 1955. The arresting agents seized his automobile and over $2,000 in cash. Bohn brought this action in District Court seeking a declaratory judgment that the seizure was illegal, and asking the court to order return of the seized property.

Following commencement of the action the Internal Revenue Service levied upon the seized property, pursuant to a writ of execution issued under a default judgment against Bohn in the amount of $749,999.25, for unpaid wagering excise taxes, penalties, and interest. The government then filed its answer to the complaint, asserting the I.R.S. levy as the sole basis for its right to retain the property.

The District Court held the seizure invalid and, applying the doctrine of custodia legis, also held that the seized property was not subject to execution while in the custody of the law enforcement officials. For reasons which we shall more fully state, we hold that the District Court lacked subject matter jurisdiction, and we must, therefore, reverse.

Jurisdiction was based on 28 U.S.C. § 1346(a) (2), a portion of the Tucker Act vesting District Courts with subject matter jurisdiction of civil claims against the United States not exceeding $10,000 in amount. Bohn's objections to the manner in which his property was seized are not controverted, nor are they in issue, for the government does not now base its claim to the property on the seizure. Rather, in this stance, Bohn's challenge to the government's retention of the property in partial satisfaction of an unpaid federal tax judgment involves solely a question of tax collection. Though this was not originally a tax case, the levy under the tax judgment introduced the issue of tax collection, and the asserted jurisdiction under 28 U.S.C. § 1346(a) (2) must, consequently, be determined with an eye to the provisions of 26 U.S.C. § 7421(a) and Sec. 7422(a),¹  relating to restrictions on jurisdiction over collection of taxes.

While the provisions of 26 U.S.C. § 7421(a) are general in nature (Holland v. Nix, 214 F.2d 317, 320 (5th Cir. 1954)), the statute has not prevented courts from affording taxpayer relief under extraordinary circumstances (Shelton v. Gill, 202 F.2d 503 (4th Cir. 1953)), as where the assessment is wholly unauthorized. E. g., Singleton v. Mathis, 284 F.2d 616 (8th Cir. 1960). But, " [t]he mere illegality of the exaction is insufficient to justify a holding that the statute prohibiting such actions is inapplicable. This is true even though the asserted illegality is predicated upon a claim of unconstitutionality." Martin v. Andrews, 238 F.2d 552, 557 (9th Cir. 1956). See also Matcovich v. Nickell, 134 F.2d 837, 838 (9th Cir. 1943); Bailey v. George, 259 U.S. 16, 20, 42 S. Ct. 419, 66 L. Ed. 816 (1922).

The jurisdiction of the District Court is, moreover, also defective because the record discloses no evidence that Bohn has complied with the requirements of 26 U.S.C. § 7422(a). Filing a claim in accordance with that section is a statutory prerequisite to a refund. McMahon v. United States, 172 F. Supp. 490, 496 (D.C.R.I.1959). Probability that the claim will be rejected does not affect this requirement. United States v. Felt & Tarrant Manufacturing Company, 283 U.S. 269, 273, 51 S. Ct. 376, 75 L. Ed. 1025 (1931). It has been uniformly held that the provisions of 26 U.S.C. § 7422(a) create a jurisdictional requirement that cannot be waived. United States v. Rochelle, 363 F.2d 225, 231 (5th Cir. 1966). In this posture of the case we do not reach the issue of custodia legis.

The judgment is vacated and the case remanded with directions to dismiss for lack of jurisdiction.