270 F.2d 528 - Enochs v. Muse — 270 F.2d 528

¶1Charles K. Rice, Asst. Atty. Gen., Robert E. Hauberg, U. S. Atty., Jackson, Miss., Lee A. Jackson, Grant W. Wiprud, I. Henry Kutz, Fred E. Youngman, Attys., Dept, of Justice, Washington, D. C., for appellant.

¶2L. Lamar Beacham, Jackson, Miss., for appellee.

¶3Before RIVES, Chief Judge, and CAMERON and JONES, Circuit Judges.

¶4JONES, Circuit Judge.

¶5The appellees, Kenneth Muse and Winnie Muse, are husband and wife. They will be referred to in this opinion as the taxpayers. They filed within the prescribed time a joint income tax return for the year 1956 and paid the tax as shown by the return to be owing. Thereafter the District Director determined that the taxpayers had underpaid estimated tax under the provisions of Section 6654 of the Internal Revenue Code of 1954.1 The *529Director made an assessment in the amount of S204.23 and demanded payment. The taxpayers brought suit seeking an injunction against the collection of the assessment by levy or otherwise claiming that the assessment is void because of the failure to give the notice as required by the statute.2 The District Director moved for a summary judgment on the ground that the addition to the tax under Section 6654 was not a deficiency as that term is defined in Section 6211,3 and therefore the complaint did not state a claim on which relief could be granted. The district court overruled the District Director’s motion and he answered. The taxpayers moved for a summary judgment and their motion was granted. A perpetual injunction was granted against levying upon the taxpayers’ property or taking other steps to collect the assessment. The district court’s reasons for its judgment appear in its opinion. Muse v. Enochs, D.C., 164 F.Supp. 561. The District Director has appealed.

¶6“Tax”, unless otherwise provided, includes additions to the tax and becomes payable, upon notice and demand, pursuant to the provision of the 1954 Code,4 in the same manner as taxes. It seems clear that under the quoted statutory provisions the item here involved is an addition to the tax which is to be treated and collected and paid in the same manner as a tax. The addition here demanded by the District Director was a deficiency with respect to which the taxpayers were entitled to the statutory ninety-day notice and the related right to file a petition with the Tax Court. This being so the injunction was authorized by the Act. 26 U.S.C.A. §§ 6212(a), 6213(a), 7421 (a). Granquist v. Hackleman, 9 Cir., *5301959, 264 F.2d 9. See also Newsom v. Commissioner, 22 T.C. 225, affirmed 5 Cir., 1955, 219 F.2d 444. The judgment of the district court is

¶7Affirmed.

¶9. “If the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitles A or B, he is authorized to send notice of such deficiency to the taxpayer by registered mail.” 26 U.S.C.A. § 6212(a).

¶10“Within 90 days, or 350 days if the notice is addressed to a person outside the States of the Union and the District of Columbia, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), tile taxpayer may file a petition with the Tax Court for a rede-termination of the deficiency. Except as otherwise provided in section 6861 no assessment of a deficiency in respect of any tax imposed by subtitle A or B and no levy or proceeding in court for its collection sliall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such 90-day or 150-day period, as the ease may be, nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final. Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy (luring the time such prohibition is in force may be enjoined by a proceeding in the proper court.” 26 U.S.C.A. § 6213(a).

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