Unpublished Dispositionnotice: Fifth Circuit Local Rule 47.5.3 States That Unpublished Opinions Should Normally Be Cited Only when They Establish the Law of the Case, Are Relied Upon As a Basis for Res Judicata or Collateral Estoppel, or Involve Related Facts. if an Unpublished Opinion is Cited, a Copy Shall Be Attached to Each Copy of the Brief.james J. Bottom, et al., Plaintiff-appellant v. United States of America, Defendant-appellee, 636 F.2d 1216 (5th Cir. 1980)

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U.S. Court of Appeals for the Fifth Circuit - 636 F.2d 1216 (5th Cir. 1980) Nov. 24, 1980

Before ENGEL, MERRITT, and KENNEDY, Circuit Judges.


This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Plaintiff is appealing the District Court's finding that a settlement fund payable to plaintiff for personal injuries sustained in an automobile accident is subject to levy by the Internal Revenue Service. Plaintiff relies primarily on In re Schmelzer, 480 F.2d 1074 (6th Cir. 1974), for his argument that the personal injury award is not subject to judicial process under Ohio law and therefore it cannot be subject to levy.

This Court's interpretation of the effect of Ohio law on the Bankruptcy Act has no effect on this case. It is established that the collection of federal taxes should be prior to any rights of the state to exempt its citizens from federal taxing power. Herndon v. United States [74-1 USTC p 16,127], 501 F.2d 1219, 1223 (8th Cir. 1974). Only the federal exemption statute can exempt property from a federal levy. 26 C.F.R. Sec. 301.6334(c); Herndon v. United States, supra at 221. Personal injury settlements are not exempted from levy by the federal exemption statute. 26 U.S.C. § 6334(a).

It is therefore Ordered that the judgment of the District Court be affirmed pursuant to Rule 9(d)3, Rules of the Sixth Circuit, because the questions on which the decision depends are so unsubstantial as not to need further argument.