George G. Hunter, Jr. v. Francis S. Talbot, 345 F.2d 513, 2d Cir. (1965)
Uploaded by
Scribd Government DocsGeorge G. Hunter, Jr. v. Francis S. Talbot, 345 F.2d 513, 2d Cir. (1965)
Uploaded by
Scribd Government Docs345 F.
2d 513
George G. HUNTER, Jr., Plaintiff-Appellant,
v.
Francis S. TALBOT, Defendant-Appellee.
No. 82.
Docket 28915.
United States Court of Appeals Second Circuit.
Argued October 16, 1964.
Decided May 18, 1965.
George G. Hunter, Jr., pro se.
Edward L. Smith, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty.,
Alan G. Blumberg, Asst. U. S. Atty.), for defendant-appellee.
Before WATERMAN, MOORE and SMITH, Circuit Judges.
PER CURIAM:
Plaintiff, a taxpayer, brought suit against defendant, a revenue officer for the
Internal Revenue Service, in the Civil Court for New York County. In
plaintiff's own words, "the gist of this action is the charge that defendant * * *
seized a token balance of a bank account belonging to plaintiff, knowing that
there was only a token balance, and acting solely for the purpose of harassing
and injuring plaintiff without any idea whatever of collecting any tax." Upon
petition by defendant, pursuant to 28 U.S.C. 1442, the suit was removed to
the United States District Court for the Southern District of New York. After
protracted legal scuffling between the parties, Judge Croake dismissed the
action on the ground that defendant was immune from suit.
Stripped of all conclusory verbiage, plaintiff's amended complaint alleged the
following facts: In May, 1962, plaintiff and his wife owed an overdue balance
of $1911 plus interest on their 1960 federal income tax. Defendant telephoned
plaintiff to inquire about payment of the balance. Plaintiff said that although he
was short of funds at the moment, he would be able to pay at least $1,000 by
October. Defendant replied that this proposal sounded "fine" but that he would
need financial statements from plaintiff and his wife before payment could be
deferred. After expressing his objections, plaintiff agreed to submit the
statements within thirty days. When defendant noted that the statements would
have to be filed within ten days, plaintiff rebuked him, rejected the demand,
and hung up.
3
Four weeks later, plaintiff filed the required statements for himself and his wife.
These statements revealed that plaintiff and his wife had accounts in a
Manhattan bank, and that his wife also had accounts in two Queens banks; the
deposits totaled almost $1500. The statements also showed that his wife was
employed in a hospital in Manhattan.
Three days later, defendant sent plaintiff and his wife a notice pursuant to 26
U.S.C. 6331, informing them that if they did not pay the balance of their taxes
in ten days, the government would levy on their property and sources of
income. The government had sent plaintiff and his wife a similar notice in
December, 1961.
After waiting fifteen days, defendant served a writ of levy on the Manhattan
bank in which plaintiff had his business checking accounts. The body of the
accounts had meanwhile been withdrawn by plaintiff and his wife, so that the
levy eventually netted only $29.71. Defendant made no further attempt to levy
on the wife's bank accounts in Queens, which had also been decimated, or on
the wife's hospital salary.
These allegations by plaintiff belie the theory of his suit against defendant. If
defendant was bent on "harassing and injuring" plaintiff, he would not, by any
reasonable stretch of the imagination, wait four weeks for plaintiff's financial
statements, send plaintiff a new and superfluous ten-day warning, wait another
fifteen days, and then levy only on the bank accounts in Manhattan. To our
knowledge, there being no other theory on which the suit could be based, we
hold that plaintiff's claim was "clearly without any merit" and was properly
dismissed. 2 Moore, Federal Practice 12.08, at 2245 (2 ed. 1964). We need
not reach defendant's alternative argument that he was immune from suit,
within the principles of Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d
1434 (1959), and like cases.
Affirmed.
