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Washington v. Koening

filed: June 23, 1992.

CHARLENE ANNE WASHINGTON; ERIC A. MUNSON, PLAINTIFFS-APPELLANTS,
v.
TERRY KOENING, INDIVIDUALLY AND OTHER CURRENTLY UNKNOWN PERSONS; UNITED STATES OF AMERICA; IRA A.C. PEETS, INDIVIDUALLY, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-90-01403-MHP. Marilyn H. Patel, District Judge, Presiding.

Before: Reinhardt, Noonan and Thompson, Circuit Judges.

MEMORANDUM

OVERVIEW

Plaintiffs-appellants Charlene Washington and Eric Munson appeal the district court's orders granting partial summary judgment for the government and dismissing their action. We affirm.

FACTS AND PROCEEDINGS

In April of 1990, Internal Revenue Service ("IRS") Officers Ira Peets and Theresa Koenig ("officers") seized a Cadillac registered in Washington's name from the driveway of her residence. The Cadillac was seized to satisfy a tax lien. Washington submitted documents showing that Munson, her son, had a prior lien on the vehicle as collateral for a $6,000 loan. On May 14, 1990, Washington and Munson filed a complaint against the government and the officers in their individual capacities, alleging violations of their constitutional and statutory rights.

On September 21, 1990, before filing an answer, the government filed a motion for summary judgment. The district court granted the motion, rejecting the plaintiffs' claims that the seizure of the Cadillac violated either the fourth amendment or 26 U.S.C. §§ 6331(f) and 7433.*fn1 The court refused to consider the claims against the individual officers because it found they had not been properly served with process. The court also denied the plaintiffs' request for default judgments against the government and the officers. Thereafter, the government returned the Cadillac to Washington and the district court dismissed the action as moot. This timely appeal followed.

Discussion

A. Summary Judgment for the Government

We review a grant of summary judgment de novo. Maisano v. Welcher, 940 F.2d 499, 500 (9th Cir. 1991), cert. denied sub nom Maisano v. I.R.S., 112 S. Ct. 1957 (1992). "Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. (citations omitted); Fed. R. Civ. P. 56(c).

Washington argues the seizure of the Cadillac from her driveway without a warrant violated her fourth amendment rights. We reject this argument. Without evidence of special features of the driveway (i.e. barriers, lack of visibility from the street) or activities performed upon it to support a reasonable expectation of privacy, a warrantless seizure of an automobile from a taxpayer's driveway pursuant to a tax levy does not violate the fourth amendment. Maisano, 940 F.2d at 502-03.

The plaintiffs contend Munson's prior lien on the Cadillac exceeded its value and made the levy "uneconomical" under 26 U.S.C. § 6331(f).*fn2 They assert the word "property" in section 6331(f) means the taxpayer's net equity in the property. We disagree. Section 6331 authorizes the government to levy upon "all property and rights to property" belonging to a delinquent taxpayer. 26 U.S.C. § 6331(a). Holding that "property" extends only to the taxpayer's net equity would require the government to determine the rights of third-party claimants before making a levy. There is no such requirement. See United States v. National Bank of Commerce, 472 U.S. 713, 721, 729 (1985); United States v. Badger, 930 F.2d 754, 757 (9th Cir. 1991); United States v. Bell Credit Union, 860 F.2d 365, 368 (10th Cir. 1988). "[Section] 6331 is a provisional remedy, which does not determine the rights of third parties until after the levy is made, in postseizure administrative or judicial hearings." National Bank of Commerce, 472 U.S. at 731 (emphasis in original).

The plaintiffs also contend the alleged violation of section 6331(f) constituted a further violation of 26 U.S.C. § 7433.*fn3 We reject this argument. ...


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