Audio Investments v. Robertson , 67 F. App'x 795 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
AUDIO INVESTMENTS, an Irrevocable 
Trust,
Plaintiff-Appellant,
v.
DEWEY L. ROBERTSON, SR.,
Defendant & Third Party Plaintiff-
Appellee,
 No. 02-1681
and
UNITED STATES OF AMERICA,
Third Party Defendant-Appellee,
and
ROGER DAVENPORT,
Third Party Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Anderson.
Henry M. Herlong, Jr., District Judge.
(CA-00-2847-8-20BG)
Submitted: May 29, 2003
Decided: June 17, 2003
Before MOTZ and GREGORY, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
2 AUDIO INVESTMENTS v. ROBERTSON
COUNSEL
Orin G. Briggs, Lexington, South Carolina, for Appellant. Eileen J.
O’Connor, Assistant Attorney General, Richard Farber, Michael J.
Haungs, UNITED STATES DEPARTMENT OF JUSTICE, Wash-
ington, D.C.; James O. Spence, Lexington, South Carolina, for Appel-
lees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Audio Investments appeals from the district court’s order granting
summary judgment in favor of the United States in this action to
determine interests in property sold by the Internal Revenue Service
to satisfy tax liens of Roger Davenport. Finding no error, we affirm.
This action originated in the South Carolina state court when Audio
Investments filed an action to quiet title to property that had been sold
by the IRS to satisfy tax liens of Roger Davenport. The purchaser of
the property joined Davenport and the United States as third-party
defendants, and the United States removed the action to the district
court.
Roger Davenport and his wife, Margaret Davenport, separately
transferred their interests in their home in Saluda County, South Caro-
lina, to their daughter, Faith Davenport. Faith paid "ten dollars, plus
love and affection" for these transfers. Faith later transferred her inter-
est in the home to Audio Investments, a "pure trust organization."
The IRS made assessments against Roger Davenport based on his
failure to pay federal income taxes for 1991, 1992, and 1993. After
Davenport failed to pay the assessed amount, the IRS filed notices of
AUDIO INVESTMENTS v. ROBERTSON 3
federal tax liens, and issued notices to Davenport of the intent to levy.
The IRS also filed a notice of federal tax lien with respect to taxes
due from Roger Davenport for 1991-1993 against "Audio Invest-
ments, Alter Ego of Roger Orme Davenport." The IRS subsequently
levied on Davenport’s assets and seized and sold the Saluda County
home.
Nearly a year after a deed was issued to the purchaser, Audio
Investments filed its quiet title action seeking to set aside the IRS sei-
zure and sale. The district court granted the United States’ motion for
summary judgment, finding that the IRS properly seized and sold the
property. Audio Investments appealed.*
Audio Investments challenges the district court’s denial of its
motion to remand the case to the state court. Because Audio Invest-
ments did not timely move to remand the case, see 28 U.S.C.
§ 1447(c) (2000), any objection to the basis for removal—except lack
of subject matter jurisdiction—has been waived. See Baris v. Sulpicio
Lines, Inc., 932 F.2d 1540, 1543-44 (5th Cir. 1991). The issues in this
case concerned the propriety of the IRS’s seizure and sale of real
property to satisfy federal tax liens. We find that the district court
undoubtedly "would have had original jurisdiction of the case had it
been filed in that court." Grubbs v. General Elec. Credit Corp., 405
U.S. 699, 702 (1972). Accordingly, we conclude that the district court
had jurisdiction over the case and, therefore, properly denied the
motion to remand.
Audio Investments next challenges the district court’s entry of
summary judgment in favor of the IRS. It argues that the levy was
improper because the seizure and sale of the property affected the
ownership interests of persons who were not the taxpayer subject to
the liens.
An action for wrongful levy under 26 U.S.C. § 7426(a)(1) (2000),
is the exclusive means for challenging a levy on property that "does
*Although Roger Davenport actively participated in the proceedings in
the district court, he has not appealed from the district court’s order.
Therefore, the scope of this appeal is limited to Audio Investments’
claim of an interest in the property.
4 AUDIO INVESTMENTS v. ROBERTSON
not, in whole or part, belong to the taxpayer against whom the levy
originated." Arth v. United States, 735 F.2d 1190, 1192-93 (9th Cir.
1984); see Miller v. Tony & Susan Alamo Found., 134 F.3d 910, 916
(8th Cir. 1998) (holding that wrongful levy action under § 7426(a)(1)
is the "exclusive remedy of third parties who seek to assert claims on
IRS-levied property"); Williams v. United States, 947 F.2d 37, 39 (2d
Cir. 1991) (same).
A wrongful levy action must be filed within nine months of the
date of the levy. 26 U.S.C. § 6532(c)(1) (2000). Audio Investments
filed its quiet title action nearly one year after the expiration of the
limitations period for filing a wrongful levy action. Having failed to
timely file a wrongful levy action, Audio Investments cannot circum-
vent this exclusive remedy by filing a quiet title action. Dahn v.
United States, 127 F.3d 1249, 1253 (10th Cir. 1997); Fidelity &
Deposit Co. v. City of Adelanto, 87 F.3d 334, 336 (9th Cir. 1996);
Williams, 947 F.2d at 39. Because Audio Investments failed to pre-
serve its claim of an interest in the property, see 26 U.S.C. § 6532(c);
26 U.S.C. § 7426(a)(1); Dahn, 127 F.3d at 1253, we find that the dis-
trict court properly granted summary judgment in favor of the United
States as against Audio Investments.
The last argument raised by Audio Investments is that the district
court erred in denying its motion to compel discovery based on the
IRS’s claim that the requested document fell within the attorney-
client privilege. Audio Investments had requested from the United
States all evidence or documentation supporting the claim that Audio
Investments is the alter ego of Roger Davenport. Because the
requested document was addressed to counsel and contained the basis
for the government’s theory of the case, we find no abuse of discre-
tion by the district court in denying the motion to compel. See NLRB
v. Sears, Roebuck & Co., 421 U.S. 132, 151-52 (1975) (describing
scope of privilege for pre-decisional deliberations); LaRouche v.
National Broadcasting Co., 780 F.2d 1134, 1139 (4th Cir. 1986) (pro-
viding standard).
In conclusion, we affirm the district court’s order upholding the
validity of the seizure and sale of the Saluda County property and
granting summary judgment in favor of the United States. We dis-
pense with oral argument because the facts and legal contentions are
AUDIO INVESTMENTS v. ROBERTSON 5
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED