(e) To allow the priority of federal tax liens to be determined by the different rules of the various States would contravene the policy of uniformity in the federal tax laws. P. 331. 45 N.J. 206, 212 A.2d 25, reversed and remanded. Robert S. Rifkind argued the cause for the United States. With him on the brief were Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph Kovner and Richard J. Heiman.
Many courts have been of the same view as the District Court in this case. See Equitable Life Assurance Society of the United States v. Bagin, 45 N.J. 206, 212 A.2d 25; and we might well have been inclined, from the standpoint of legal reasoning concerning attorney's liens and the insurance premium expenses, to follow the decision of the District Court. However, United States v. The Equitable Life Assurance Society of the United States, 384 U.S. 323, 86 S.Ct. 1561, 16 L.Ed.2d 593, held to the contrary.
There is no proof that during the period of this accounting Yucht was insolvent, particularly as of the date of the proof of claim. Cf. United States v. Equitable Life Assurance Society of the United States, 384 U.S. 323, 324, 86 S.Ct. 1561, 1562, 16 L.Ed.2d 593, 596-597, 86 S.Ct. 1561 (1966), rev'g Equitable Life Assurance Society of the United States v. Bagin, 45 N.J. 206, 212 A.2d 25 (1965) (Attorney fee allowed under then R. 4:55-7(c) in foreclosure action were inchoate interests under then applicable federal tax lien laws; hence, the U.S. Supreme Court held IRS had priority under 26 U.S.C.A. §§ 6321- 6323 but in absence of proof of insolvency 31 U.S.C.A. § 191 (now § 3713) did not afford a basis for priority.). Counsel for the I.R.S. alternatively asserts that the I.R.S. has a lien under 26 U.S.C.A. § 6321.
In United States v. Equitable Life Assurance Soc., 384 U.S. 323, 86 S.Ct. 1561, 16 L.Ed.2d 593 (1966), rev'g sub nom. Equitable Life Assurance Soc. v. Bagin, 45 N.J. 206 (1965), the United States Supreme Court considered a question analogous to that presented here. There the court, in reversing a decision of our Supreme Court, held that a federal tax lien was entitled to priority over a claim for attorney's fees arising under former R.R. 4:55-7(c), now R. 4:42-9(a)(4). The precise question addressed in Equitable Life was "whether a federal tax lien is entitled to priority over the mortgagee's claim for such an attorney's fee, where notice of the tax lien is recorded prior to default by the mortgagor."
The courts in our State had occasion to pass on aspects of the problem before 1966 in Equitable Life Assur. Society v. Bagin, 45 N.J. 206 (1965), and Textile Products v. Feldan, 54 N.J. Super. 291 (Ch.Div. 1959). In Textile Products the attorney for a defendant who in effect interpleaded the fund was held not entitled to counsel fees as against a federal tax lien.