291 F.

2d 520
100 A.L.R.2d 858, 61-2 USTC P 9495

UNITED STATES of America, Plaintiff-Appellee,

v.
Raymond A. O'CONNOR, Bertha K. O'Connor, Raymond A.
O'Connor, Executor under the Last Will and Testament of
Elizabeth F. Fitzpatrick, sometimes known as Mary Elizabeth
Fitzpatrick, deceased, Raymond A. O'Connor, Julian J.
O'Connor and John K. O'Connor, individually and as
co-partners, trading and doing business under the name of R.
A. O'Connor & Co., Burt Packing & Warehouse, Inc., Burt
Cold
Storage Co., Inc., Chisholm Ryder Co., Inc., Howard L.
Kaynor, County Treasurer, Niagara County, New York, Cecilia
Finnigan, Carmelite Sisters, St. Catharines, Ontario,
Catholic Extension Society, Toronto, Ontario, Rev. Thomas A.
O'Connor, St. Paul, Minnesota, rev. Mr. Thomas A. O'Connor,
Fordham University, New York, New York, Rev. Father
Campbell, whose Christian name is unknown, Catherine E.
Kelly, 2322-41st Street, N.W., Washington, D.C., Vivian A.
O'Connor, Maid of the Mist Steamboat Co., Inc., Niagara
Falls, New York, Cocker Saw Co., Inc., Burt, New York,
Defendants-Appellants.
No. 115, Docket 26057.

United States Court of Appeals Second Circuit.

Argued May 16, 1961.
Decided June 5, 1961.

Richard M. Roberts, Sec. Chief, Claims, Tax Division, Dept. of Justice,

Washington, D.C. (Neil R. Farmelo, U.S. Atty., Buffalo, N.Y., Charles K.
Rice, Asst. Atty. Gen., Louis F. Oberdorfer, Asst. Atty. Gen., Lee A.
Jackson, Robert N. Anderson, James P. Turner and Robert W. Kernan,
Attys., Dept. of Justice, Washington, D.C., on the brief), for plaintiff-

appellee.
Charles J. McDonough, Buffalo, N.Y. (Mc, donough, Boasberg &
McDonough, Buffalo, N.Y., on the brief), for defendants-appellants.
Before FRIENDLY and SMITH, Circuit Judges, and WATKINS, District
judge. *
FRIENDLY, Circuit Judge.

This appeal concerns the civil side of the long-standing tax controversy
between the United States and Raymond A. O'Connor of Niagara Falls.
O'Connor was convicted in 1954 and again in 1957 of wilfully attempting to
evade payment of his income taxes for 1946-1949; both convictions were
reversed by this Court on grounds not going to the merits of the Government's
claim, 1956, 237 F.2d 466; 1959, 273 F.2d 358.

On September 12, 1951, the Commissioner made jeopardy assessments against

Raymond O'Connor and his wife Bertha for deficiencies in income taxes, fraud
penalties and interest totalling $409,370.28 for the years 1943-1949; Int.Rev.
Code of 1939, 273(a), 26 U.S.C.A. 273(a). Thereafter Raymond and Bertha
filed a petition in the Tax Court requesting a redetermination of the deficiencies
and penalties; however, no bond to stay collection of the tax was filed, as
permitted by 273(f) of the 1939 Code. The Commissioner answered and
taxpayers replied; no further proceedings have been taken. On August 4, 1952,
the Commissioner made transferee assessments, under 311, in the sum of
$261,209.00 against Elizabeth F. Fitzpatrick as alleged transferee of certain real
prperty deeded to her by Bertha O'Connor on July 31, 1951.

On August 23, 1957, just before the six year statute of limitations, Int.Rev.
Code of 1954, 6502, 26 U.S.C.A. 6502, would have run on the O'Connor
assessments, the Government brought this action under 7403. The complaint
alleged, in addition to certain of the facts set forth above, that the assessment
lists covering the assessments against the O'Connors had been received by the
Collector in Buffalo on September 14, 1951, notice and demand upon the
taxpayers made that day, and notices of the tax liens filed on September 21;
that, in the case of the Fitzpatrick assessment, the assessment lists were
received August 7, 1952, notice and demand made that day, and notice of lien
filed on August 8; that seven parcels of real estate and a mortgage standing in
the name of Bertha O'Connor but allegedly owned by Raymond had been
fraudulently conveyed to Mrs. Fitzpatrick; that O'Connor had an interest in an

accounting partnership, held a claim against Chisholm Ryder Co., Inc., and
wholly owned and controlled two other companies, Burt Packing and
Warehouse, Inc. and Burt Cold Storage Co., Inc. which owed him large sums;
and that other named defendants claimed interests or liens upon or against
O'Connor's properties. The complaint sought a personal judgment against the
O'Connors for the amount assessed; the setting aside of the transfers to Mrs.
Fitzpatrick; judgment against Raymond O'Connor, as executor of her estate, for
the amount of the transferee assessment; determination of the validity and
priority of all liens and claims with respect to the O'Connors' properties; sale
and distribution to satisfy the liens; and, finally, the appointment of a receiver
to enforce the Government's lines against the properties of the O'Connor's and
the two Burt corporations with the powers of a receiver in equity. Annexed to
the complaint was a certificate of the Commissioner, 7403(d), that
apppointment of a receiver for the O'Connors and the two companies was in the
public interest.
4

The late Judge Morgan issued an order requiring defendants to show cause on
July 28, 1958, why the prayer for the appointment of a receiver should not be
granted. On the return day the Government presented a 'Memorandum of Points
Relied Upon' and affidavits. Some of these, by E. C. Coyle, Jr., then District
Director of Internal Revenue, related to the facts of assessment, notice and
demand, filing, etc.; they recited also that in September 1951, large tax
deficiencies, not alleged in the complaint, had been assessed against the two
Burt companies, and notice and demand made. The Memorandum of Points
stated that, for proof of other facts to support the appointment of a receiver, the
Government relied on other affidavits attached to the Memorandum, on copies
of deeds and of probate papers relating to Mrs. Fitzpatrick, and on the entire
transcripts of the two criminal trials. The Government also served a subpoena
on Raymond O'Connor.

At the hearing on July 28, counsel for the defendants asked the Court to quash
the subpoena as violating O'Connor's Fifty Amendment privilege against
selfincrimination and for time to brief and prepare to argue 'various questions of
law with respect to the validity of the Government's lien after certain sales of
real estate which were deeded out of Bertha O'Connor, the defendant, prior to
the filing of assessment rolls in this case'; he indicated he might also wish to
object to use of the transcripts of the criminal trials. The judge set times for the
filing of answering affidavits and briefs and adjourned the matter until
September 2; the defense filed a brief dated August 18 but no answering
affidavits. Apparently no proceedings were had on September 2. On September
4, Judge Burke announced that, due to serious illness, Judge Morgan was
unable to be present as expected, but that he had made a decision, which Judge

Burke distributed.
6

The decision recited the facts; determined that, although the Court in its
discretion would not consider any portion of the transcript of the first criminal
trial before Judge Knight, it would consider the entire transcript of the second
trial, over which Judge Morgan had presided; granted the prayer for the
appointment of a receiver, who was also to determine the issues of fact and law
raised by the complaint; and denied the motion to quash the subpoenas, which
appears to have been rendered moot. The judge said his decision was based on
the oral argument, presumably on July 28, and the briefs, and that 'in the
considered opinion of this Court, further argument and/or testimony is
unnecessary for the exercise of the discretion of the District Court in the
appointment of a receiver.' There followed, on September 10, 1958, the order,
here under appeal, appointing Clarence R. Runals as receiver and also as special
master.
Appealability

An order appointing a receiver is appealable under 28 U.S.C. 1292(a)(2). An

order appointing a special master, standing alone, would not be, although it
could normally be attacked by a petition for mandamus to the court and
prohibition to the master, La Buy v. Howes Leather Co., 1957,352 U.S. 249,
254-260, 77 S.Ct. 309, 1 L.Ed.2d 290; Webster Eisenlohr, Inc. v. Kalodner, 3
Cir., 1944, 145 F.2d 316; United States v. Kirkpatrick, 3 Cir., 1951, 186 F.2d
393. Our jurisdiction under 1292(a)(2) over the order appointing the receiver
would surely empower us to remove from the appointee functions that a
receiver may not properly perform, 28 U.S.C. 2106. Whether it would extend to
deciding that no special master may properly be appointed is doubtful, and we
must consider that question even though the Government has not raised it. In
the Ninth Circuit the problem would be solved by treating the appeal, insofar as
it related to an order non-appealable but susceptible of attack by mandamus, as
a petition for the latter, Shapiro v. Bonanza Hotel Co., 9 Cir., 1950, 185 F.2d
777; Steccone v. Morse-Starrett Products Co., 9 Cir., 1951, 191 F.2d 197; our
seemingly contrary position, Abbe v. New York, N.H. & H. Ry. Co., 2 Cir.,
1948, 171 F.2d 387; Mottolese v. Preston, 2 Cir., 1949, 172 F.2d 308; Zamore
v. Goldblatt, 2 Cir., 1953,201 F.2d 738, has been characterized as 'a very
peculiar doctrine for a modern court to espouse.' 6 Moore, Federal Practice
(1953 ed.) p. 93; cf. Magnetic Engineering & Mfg. Co. v. Dings Mfg. Co., 2
Cir., 1950, 178 F.2d 866; Arrowhead Co. v. The Aimee Lykes, 2 Cir., 1951,
193 F.2d 83. Whatever the reasons for requiring a formal petition addressed to
the judge may have been in the three cases cited, there can hardly be any in a
case where the judge is no longer able to respond1 and a portion of his order is

within the interlocutory appeal statute; it would be undue formalism for us here
to refuse to express our views on an issue where mandamus would lie and
perhaps thereby lead the District Court, in deference to Judge Morgan, into
action that would provoke a later petition for mandamus and affirmative action
thereon. Cf. Florida v. United States, 8 Cir., 1960, 285 F.2d 596, 599-601,
where the non-appealable order was not of the sort as to which mandamus
would issue.
Appointment of the Receiver
8

( 1) Appellants claim they were deprived of a fair hearing. They were not. The
proceedings on July 28 made plain that any further factual material was to be
presented in affidavits rather than in open court; appellants chose not to file any.
The adjourned session was to be only for further argument a privilege the judge
was not required to grant, see F.C.C. v. WJR, The Goodwill Station, 1949, 337
U.S. 265, 275-276, 69 S.Ct. 1097, 93 L.Ed. 1353. Still it might be argued that,
having granted it, he was obliged to go through with it, since appellants might
have refrained from presenting relevant legal considerations in reliance on his
promise. That contention is not open here, for two reasons: The first is that
appellants did file a brief which appears to have made a complete presentation
of their legal case. The second is that any relevant legal claims are still open in
this court-- it would be absurd to reverse to allow the District Court to hear
arguments against Judge Morgan's power to appoint a receiver which we would
deem it error for that Court to accept; and it is apparent that any arguments
going to discretion were fully made on July 28 and in the brief. Of course, the
procedure here followed was not a desirable one; but it was pursued only
because of Judge Morgan's serious illness and we cannot see that it deprived
appellants of any substantial rights.

(2) Appellants' second attack is that the Government failed to prove demand,
which 3670 of the 1939 Code, 26 U.S.C.A. 3670, requires before the lien of a
tax may attach. They make much of the point that Coyle's affidavit alleges
there were sent to the O'Connors in 1951 forms of Statements of Income Tax
Due, labelled Form 17-A, which, in fact, did not then exist, the then applicable
form of notice of assessment and demand for payment being Form 7658.
However, there were also annexed to Coyle's affidavits copies of the
Assessment Certificate and accompanying Assessment List in regard to the
O'Connors and also in regard to Mrs. Fitzpatrick, and the 'Remakrs' column of
these lists carries a reference '(7658-- Sept 14 1951)' for the O'Connors and
'(7658-- Aug 7-1952)' for Mrs. Fitzpatrick. This sufficiently proved the mailing
of Form 7658 in the absence of countervailing evidence.

10

( 3) Appellants' claim that the pendency of the Tax Court proceedings

prevented the appointment of a receiver flies in the face of the reasons
underlying the statutory provisions for jeopardy assessments. These were
necessary concomitants to establishment of the procedure whereby normally
taxpayers may obtain a review of the Commissioner's determination in advance
of payment; without provision for jeopardy assessments there would be too
many cases in which the time spent in such a review might defeat collection of
the tax. As explained in Sen.Rep. No. 52 (69th Cong. 1st Sess.), pp. 26-27,
incident to the Revenue Act of 1926 (1939-- 1 Cum.Bull. 332, 352), the system
of jeopardy assessment 'does not interfere in any manner with the regular course
of deficiency letters, petitions to the Board, and appeals therefrom to the circuit
court of appeals'; but neither do the latter stay collection of the tax when a
jeopardy assessment has been made, unless the taxpayer files a bond as
permitted by 273(f) of the 1939 Code. If, after collection, the courts determine
the Commissioner has over-assessed, a refund will be made. There are no valid
objections to this procedure on constitutional grounds, see Phillips v.
Commissioner, 1931, 283 U.S. 589, 597-601, 51 S.Ct. 608, 75 L.Ed. 1289.

11

(4) Finally, appellants argue that the Government did not establish it had valid
claims against any f the defendants, and especially against the property of Mrs.
O'Connor, who had filed no income tax returns, or of Mrs. Fitzpatrick. Even
though, as we later hold, the assessment is not conclusive in an action under
7403, the remedy of the appointment of a receiver does not depend on the
Government's having already proved its claim and its lien; that is one of 'the
matters' which the court is to 'adjudicate * * * and finally determine.' It is
sufficient if the Government makes a prima facie showing, United States v.
Peelle Co., 2 Cir., 1955, 224 F.2d 667, 669; '* * * where the record shows that
a substantial tax liability probably exists, and that the Government's collection
of the tax may be jeopardized if a receiver is not appointed, the appointment
will be made,' 9 Mertens, Law of Federal Income Taxation, Supp. (1960) p. 41,
and cases cited; Florida v. United States, supra, 285 F.2d at page 602. Here the
facts summarized in the Government's Memorandum of Points made out such a
case. There was no error in permitting the Government to present these by
affidavits, and the record in the criminal trial served the purpose as well or,
indeed, better.2 See Bromberg v. Moul, 2 Cir., 1960, 275 F.2d 574, 576.
Appointment of the Special Master

12

Renewing their complaint as to denial of a fair hearing, aggravated, on this

branch of the case, by the fact that the Government had not sought a reference,
appellants attack the appointment of the Special Master on four additional

grounds:
13

(1) That, under our decision in Pipola v. Chicco, 2 Cir., 1960, 274 F.2d 909, the
assessment is conclusive as to the merits, hence there is no question as to the
tax for the special master to determine;

14

(2) That the pending Tax Court proceedings barred any litigation of the merits
of the tax claims in the District Court;

15

(3) That the appointment of a Special Master violated the dictate of

F.R.Civ.Proc. 53(b), 28 U.S.C.A., that 'a reference shall be made only upon a
showing that some exceptional condition requires it'; and

16

(4) That, in any event, the receiver should not have been appointed special
master.

17

The last objection is clearly sound. Although in theory the receiver may have
no interest in whether any claims are established, in fact he certainly does; such
an interest, as well as his duties to the claimants and the taxpayer, disqualify
him from performing the judicial duties here imposed, see Tumey v. State of
Ohio, 1927, 273 U.S. 510, 522, 47 S.Ct. 437, 71 L.Ed. 749, and cases cited. It
goes without saying that this observation betrays no lack of confidence in the
indivicual here appointed; we enforce a general principle. As previously
intimated, we could stop at this point, but to do so would leave the District
Court uncertain whether it ought not appoint another special master. We turn
therefore to appellants' first claim.

18

Pipola v. Chicco, supra, was an action by purchasers of real estate under 28

U.S.C. 2410(a) to cancel a Government tax lien against their grantor as
erroneously assessed. The Government challenged plaintiffs' right to go behind
the assessment; it urged, on the authority of a dictum in Bull v. United States,
1935, 295 U.S. 247, 259-261, 55 S.Ct. 695, 79 L.Ed. 1421, that the grantor
could not have done so, hence a fortiori the grantee could not. Stating that 'The
lack of precise authority either to prove or to disprove this (the former)
contention is surprising' (274 F.2d 912) and that 'Counsel have cited no case
and we have found none where inquriy into the merits of the assessment was
permitted in a suit to enforce a tax lien,' we concluded, in an opinion by the
writer, that 'the government's premise that this may not be done is adequately
supported' by the Bull dictum.

19

Our intuition that there must be authority on this issue has proved sounder than

our belief that, on a question of tax collection procedure, the Government could
be expected to have known of it. The Government has not elaborately
researched the point and has concluded that it erred in arguing to us in Pipola
that, in a suit under what is now 7403, a taxpayer may not challenge the merits
of the assessment underlying an asserted lien, although it contends the decision
was none the less correct because of asserted differences between the rights of
the taxpayer and of a third person3 -- an issue not now before us. Another Court
of Appeals has found our statement disturbing, United States v. Coson, 9 Cir.,
1961, 286 F.2d 453, 463-464. For reasons now to be stated, we now overrule
it.4
20

The Government's present position starts from the language of subsection (c),
'The court shall * * * proceed to adjudicate all matters involved therein and
finally determine the merits of all claims to and liens upon the property.' That
alone settles nothing; for, if, as said in Bull, the assessment in fact had all the
force of a judgment save in a proceeding before the Tax Court under 6213, 26
U.S.C.A. 6213, or in a refund suit under 7422 of the Code, 28 U.S.C.A. 7422,
and 28 U.S.C. 1346(a)(1), 'the merits' would be simply the procedural
regularity of the assessment and the determination of the property to which the
lien attached. However, we are convinced the assessment does not have so
broad an effect.

21

Two early Supreme Court decisions, not mentioned in Bull or cited to us in

Pipola, held that when the Government sues on a bond to secure payment of an
assessment, the legality of the assessment is open for judicial determination,
Clinkenbeard v. United States, 1874, 21 Wall. 65, 22 L.Ed. 477; United States
v. Rindskopf, 1881, 105 U.S. 418, 26 L.Ed. 1131.5 See also United States v.
Philadelphia & Reading R.R. Co., 1887, 123 U.S. 113, 116, 8 S.Ct. 77, 31
L.Ed. 138. Other early cases to the same effect are United States v. Bank of
America, C.C.E.D.Pa.1883, 15 F. 730, and United States v. Nebraska Distilling
Co., 7 Cir., 1897, 80 F. 285; contra, United States v. Hauser, D.C.S.D.Cal.1938,
25 F.Supp. 689. In Bowers v. American Surety Co., 2 Cir., 1929, 30 F.2d 244,
245, Judge Learned Hand stated that 'in an action at law to recover a tax, the
United States must prove that the tax is due,' citing Clinkenbeard and
Rindskopf, although the assessment would be conclusive as to the legality of
the tax for purposes of distress or in a suit to enforce a bond given to hold that
off.

22

The question thus becomes whether in a suit under 7403 the assessment is
conclusive, as it would be in a summary method of enforcement, or
presumptive but inconclusive, as it would be in an action at law on the
assessment or on a bond to secure its payment. A number of cases have stated

the latter. United States v. Feazel, D.C.W.D.La.1943, 47 F.Supp. 679; United

States v. Acri, D.C.N.D.Ohio 1952, 109 F.Supp. 943, affirmed 6 Cir., 1953, 209
F.2d 258, reversed on other grounds, 1955, 348 U.S. 211, 75 S.Ct. 239, 99
L.Ed. 264; United States v. Ridley, D.C.N.D.Ga.1954, 127 F.Supp. 3; Graham
v. United States, 9 Cir., 1957, 243 F.2d 919. In addition to United States v.
Hauser, supra, there is also some slight authority for the former view, United
States v. Briglia, D.C.S.D.N.Y.1960, 182 F.Supp. 271. We think the closer
analogy is to the action at law on the assessment; when the Government seeks
the aid of the courts in enforcing the assessment in any form, it opens the
assessment to judicial scrutiny in all respects. See Murray's Lessee v. Hoboken
Land & Improvement Co., 1855, 18 How. 272, 283-285, 15 L.Ed. 372; Damsky
v. Zavatt, 2 Cir., 1960, 289 F.2d 46.
23

This conclusion also is supported by history. The present 7403 began as 106 of
the Act of July 20, 1868, c. 186, 15 Stat. 125, 167; this became Rev. Stat. 3207.
Section 1030 of the Revenue Act of 1924, c. 234, 43 Stat. 253, 350,
renumbered it as (a) and added, as (b), what is now 7224 of the 1954 Code, 26
U.S.C.A. 7424, dealing with civil actions by third persons to clear title to
property. The presence in what was then Rev.Stat. 3207(b) of a provision that,
in proceedings thereunder, 'the assessment of the tax upon which the lien of the
United States is based shall be conclusively presumed to be valid,' and the
absence of such a provision in 3207(a), had a significance when the two
sections were juxtaposed more apparent than now when they have been
separated. Again, when in 1936, 3207(a) was amended to include personal
property, c. 690, 49 Stat. 1648, the House report stated this would 'give the
Government an opportunity to secure a determination of the tax liability of a
taxpayer in a court of equity * * *' H.R.Rep. No. 2818, 74th Cong. 2d Sess., p.
7. Finally, the history of the 1954 Code itself, which we found 'inconclusive' in
our previous opinion, 274 F.2d at page 912, as the Government then urged,
assumes a new aspect when we now learn that the Senate's rejection of the
House amendment that would have inserted the 'conclusive' language of 7424
into 7403, was preceded by an objection at the Senate Hearings on H.R. 8300,
Part 1, pp. 611-612, by the Association of the Bar of the City of New York, that
since the defendant may show an assessment as 'erroneous, excessive or ellegal'
when a suit at law is brought upon it, 'It seems illogical to deny such right to the
taxpayer in a suit to enforce a tax lien.'

24

Appellants' two other attacks on the appointment of a special master are best
considered together. The first is that a taxpayer who has seasonably elected to
have his tax liability determined by the Tax Court may not be forced to trial
before another forum. The Government responds that the procedure before the
Tax Court was simply intended 'to furnish a forum where full payment of the

assessment would not be a condition precedent to suit,' Flora v. United States,

1960, 362 U.S. 145, 163, 80 s.Ct. 630, 4 L.Ed.2d 623, and that where a
jeopardy assessment has been made and the taxpayer, by failing to obtain a stay
through filing a bond, has created a situation in which judicial (as well as
extrajudicial) methods of collection may be put in motion, the Tax Court and
the District Court have concurrent jurisdiction to determine the tax-- a position
not altogether reconcilable with the statement of the Senate Committee, quoted
above, Sen.Rep. No. 52 (69th Cong. 1st Sess.), pp. 26-27 (1939-1 Cum.Bull.
332, 352), that in such a case 'the right of the taxpayer to have the correct
amount of the deficiency determined by the Board and the appellate courts is
not interferred with * * *' Without determining whether apellants' position is
sustainable in its fullest reach, we think a wise exercise of discretion would
generally favor a procedure whereby a taxpayer who has elected to have his
liabilities determined by the Tax Court ought be allowed to follow that course
to a conclusion, provided he diligently pursues it.6 Here two considerations
might have indicated a contrary course, assuming, as we do arguendo, that this
was open. One was the long delay in moving the Tax Court case to trial;
however, the Government seems to have been quite willing to tolerate that. The
other was the late Judge Morgan's familiarity with the facts as a result of his
having presided at the second criminal trial. However, that consideration would
have been more cogent if the issue were the propriety of the judge's hearing the
case himself rather than of appointing a master; in any event, it is no longer
applicable. The general policy in favor of allowing taxpayers who have
complied with prescribed procedures to have their tax liabilities determined by
the expert body established by Congress for that purpose thus comes into play;
and here that policy combines with the commands of F.R.Civ.Proc. 53(b) that
'A reference to a master shall be the exception and not the rule' and that 'in
actions to be tried without a jury, save in matters of account, a reference shall be
made only upon a showing that some exceptional condition requires it.' Now
that Judge Morgan's special knowledge of the case is forever lost, we see no
exceptional condition that would justify reference to a master when the Tax
Court is available.
25

Order affirmed insofar as it appoints a receiver, vacated insofar as it appoints a

special master.

United States District Judge for the Northern and Southern Districts of West
Virginia, sitting by designation

We note a possible counter-argument namely, that Judge Morgan's death would

prevent the issuance of mandamus under the principle of United States v.

Boutwell, 1873, 17 Wall. 604, 21 L.Ed. 721, and United States ex rel.
Bernardin v. Butterworth, 1898, 169 U.S. 600, 18 S.Ct. 441, 42 L.Ed. 873,
although prohibition to the master would still lie. We doubt the principle of the
cited cases applies here; the action was of the District Court, not of the judge,
28 U.S.C. 132, and the writ may be directed to the court itself, Ex parte United
States, 1932, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283. See 6 Moore, Federal
Practice (1953 ed.), p. 72, fn. 76, and Hartley Pen Co. v. United States District
Court, 9 Cir., 1961, 287 F.2d 324
2

This is so despite appellants' argument that Raymond O'Connor was the only
civil defendant who had been a party to the cirminal trial. Since no final
determination was being made upon the merits, the Government's entire
showing could have been by affidavits. To the extent that the trial testimony
had been subject to cross-examination by anyone, it was tested that much more
than affidavits would have been

Taken literally, this contention would mean that a transferee such as Mrs.
Fitzpartrick could not contest an assessment although the taxpayer could

This opinion has been submitted to Chief Judge Lumbard and Judge Swan, who
joined in the Pipola opinion; although the present panel necessarily takes full
responsibility for the instant decision, Judges Lumbard and Swan have
authorized me to say they perceive no objection to the withdrawal of the
statements in Pipola here under consideration

A lower court had earlier reached the same result, in another case involving
Rindskopf, in a suit on the assessment itself, C.C.E.D.Wis.1879, 27
Fed.Cas.No. 16,166, p. 816, under Rev.Stat. 3207, the ancestor of 7403

Cf. Florida v. United States, supra, 285 F.2d at page 604, dealing with a case
where refund suits for some years were pending in the District Court and
petitions for other years in the Tax Court, in addition to the action under 7403