Robert E. Bowen and Irene Bowen, His Wife v. United States of America , 331 F.2d 149 ( 1964 )

  • 331 F.2d 149

    64-1 USTC P 9427

    Robert E. BOWEN and Irene Bowen, his wife, Appellants,
    UNITED STATES of America et al., Appellees.

    No. 20867.

    United States Court of Appeals Fifth Circuit.

    April 23, 1964.

    Philip T. Weinstein, Cunningham & Weinstein, Miami, Fla., for appellants.

    John B. Jones, Jr., Acting Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Washington, D.C., William A. Meadows, Jr., U.S. Atty., Miami, Fla., Michael A. Mulroney, Joseph Kovner, George F. Lynch, Attys., Dept. of Justice, Louis F. Oberdorfer, Asst. Atty. Gen., Washington, D.C., for appellees, Lavinia L. Redd, Asst. U.S. Atty., of counsel.

    Before RIVES, BELL and WRIGHT,1 Circuit Judges.



    The District Court dismissed the complaint of appellants to enjoin the collection of federal income taxes for lack of jurisdiction. We affirm on two grounds. First, it was not clear from the complaint that under the circumstances could the government ultimately prevail on its tax claim and thus the attempted collection was not merely an exaction in the guise of a tax. Second, and either ground is conclusive, equity jurisdiction did not otherwise exist because appellants failed to avail themselves of their legal remedy to have the alleged deficiencies in tax redetermined by the Tax Court. 26 U.S.C.A. 7421(a); Enochs v. Williams Packing Company, 1962, 370 U.S. 1, 82 S. Ct. 1125, 8 L. Ed. 2d 292; Abel v. Campbell, 5 Cir., 1962, 309 F.2d 751; and Botta v. Scanlon, 2 Cir., 1963, 314 F.2d 392.




    Of the D.C.Circuit, sitting by designation