Circuit Court of Appeals, Second Circuit.
Ralph C. Greene, U. S. Atty., and William A. De Groot, Asst. U. S. Atty., both of Brooklyn, N. Y. (Nelson T. Hartson and Frank J. Ready, both of Washington, D. C., of counsel), for the United States.
Zalkin & Cohen, of New York City (S. Marshall Kronheimer and Emanuel Fichandler, both of New York City, of counsel), for respondent.
Before HOUGH, MANTON, and HAND, Circuit Judges.
HOUGH, Circuit Judge.
The record before us is an insufficient groundwork for some of the arguments at bar. It is impossible to argue therefrom that the United States has or ever had a lien upon any fund in respect of these taxes, or any of them, so that R. S. § 3186, as amended (Comp. St. § 5908), may apply. That statute declares that a tax shall be "a lien in favor of the United States from the time when the assessment list *952 was received by the collector," etc. There is no evidence whatever as to when any assessment list was received by anybody. We know nothing except that a demand for some unexplained kind of tax was made by the United States in March, 1923, and that further demands for income taxes were made later.
This estate is not in bankruptcy, but it is insolvent, and therefore R. S. § 3466 (Comp. St. § 6372), is the only available statute. That declares that "whenever any person indebted to the United States is insolvent * * * the debts due to the United States shall be first satisfied." Thus the sole question before us is whether debts of the insolvent secured by no lien shall be paid ahead of expenses created by the receivership, because such debts are for taxes due to the United States. So far as shown, this is the first attempt on the part of the United States to assert a claim for payment out of a fund ahead of the expenses incurred in the production thereof. There being no question of lien before us, we find no rights asserted under any form of execution, as by distress or the like. The United States comes into court and asserts in substance that, when the officers of the court have accumulated a fund insufficient to defray the expenses of its accumulation, the Treasury is entitled to take that fund and leave the court expenses unpaid.
For purposes of argument only it may be admitted that out of any fund available for paying the debts of an insolvent debtor United States taxes are to be paid first, and in full. But it is elementary that what is available to pay the debts of any debtor must be the property of that debtor. When these claims were presented, that property had all been consumed in the production of the present fund, which equitably belongs to the persons who made it, and they made it, not by giving credit to the insolvent Box Company, but by giving credit or rendering services to one or another of the various receivers herein. It may well be, as urged by the appellee, that the doctrine of United States v. Oklahoma, 261 U.S. 253, 43 S. Ct. 295, 67 L. Ed. 638, as followed and interpreted in Equitable, etc., Co. v. Connecticut, etc., Co. (C. C. A.) 290 F. 712, and Strain v. United States Fidelity, etc., Co. (C. C. A.) 292 F. 694, disposes of appellant's claim; but we prefer to put decision on the ground that, thoroughly admitting priority in the United States under the statute in any fund available for the payment of this insolvent's debts, there is and can be no claim in favor of even the most preferred of creditors until there is some fund available for the payment of all creditors of the insolvent.
There is no such fund; consequently the order below was right, and is affirmed.
