Exchange Nat. Bank. v. United States , 147 Wash. 176 ( 1928 )

I concur in the result reached in the foregoing majority opinion solely upon the ground that this tax debt due to the United States, viewed apart from any supporting lien right, has priority over this tax debt due the state of Washington, viewed apart from any supporting lien right. It seems clear to me that each of these two tax debts primarily came into existence by the levy of a taxin personam, and not by the levy of a tax in rem. I think a critical reading of the revenue legislation of the respective sovereignties, the United States and the state, and the record in this case showing the manner of the levying of these respective taxes, will render this plain. The revenue legislation of each has prescribed procedure by which its personam tax debts may be made specific liens upon property of one personally owing such tax debt. This record, I think, warrants the conclusion that neither the United States, the state of Washington, nor Spokane county for the state of Washington, has ever, by the prescribed statutory procedure, perfected its inchoate tax lien right against any of the property of which the funds here in question are the proceeds. I, therefore, view these respective tax debts wholly apart from any supporting lien right. Thus, I think the question of which shall be "first satisfied" out of these funds is determinable by the language of § 3466, United States Revised Statutes, quoted in the majority opinion, and hence must be determinable in favor of the United States.

I confine my concurrence in the majority opinion to this ground, because I am not ready to yield assent to the view that a United States income tax legally becomes a lien upon any property of the person against whom it is levied until evidence thereof is filed as prescribed by § 3186, quoted in the majority opinion, as against lien rights which are superior to those of "any mortgagee, purchaser or judgment creditor." I am, as at present advised, in accord with the views expressed by the learned chancellor in Ferris v. Chic-Mint Gum Co., 14 Del. Ch. 232, 124 A. 577. I fear that the majority opinion of my brethren may be considered as wedding us to a contrary view. At all events, it seems to me unnecessary to so commit ourselves in the disposition of this case.