We have derived an indelible impression from the cases (involving determination of priority of federal tax liens over competing liens) decided by the Supreme Court, which reveal the persistent application of the choate lien test, first in insolvency cases, then in statutory lien cases, and finally in nonstatutory contractual lien cases. The United States places great reliance upon the recent case, United States v. Christensen, 9 Cir., 1959, 269 F.2d 624. In that case, a mortgage had been executed on November 22, 1943, covering certain real property owned by the taxpayer.
Both cases are distinguishable from the instant case in that in each of those cases the unpaid taxes were statutory liens and the claimant did not come within the definition of a mortgagee as described in Section 6323(a). The appellant then cites two Circuit Court of Appeals cases: United States v. Christensen, 9 Cir., 269 F.2d 624, and United States v. Bond, 4 Cir., 279 F.2d 837. Both of these cases gave priority to federal tax liens over subsequent real estate taxes paid by the mortgagee and applied the choate lien test, citing in support thereof United States v. City of New Britain, supra. A similar result was obtained in Union Central Life Insurance Co. v. Peters, 361 Mich. 283, 105 N.W.2d 196, and Bank of America National Trust Savings Ass'n v. Embry, 188 Cal.App.2d 425, 10 Cal.Rptr. 602. These cases are not controlling of the federal question and we believe were erroneously decided.
In my view, the conclusion reached by the majority stands opposed to controlling authority. (See United States v. New Britain, 347 U.S. 81; see, also, United States v. Bond, 279 F.2d 837 [4th Cir.]; United States v. Christensen, 269 F.2d 624 [9th Cir.]; Stadelman v. Hornell Woodworking Corp., 172 F. Supp. 156 [U.S. Dist. Ct., W.D.N.Y.]; United States v. Lord, 155 F. Supp. 105 [U.S. Dist. Ct., N.H.]; Union Central Life Ins. Co. v. Peters, 361 Mich. 283.) Nor may the impact of such authority be avoided by having the State, through legislative enactment or court decision, label local taxes and assessments "expenses of the sale", that is, of the mortgage foreclosure sale following the action brought by the mortgagee (Civ.
See in accord, with respect to attorney's fees, United States v. Bond, 279 F.2d 837 (C.A. 4th Cir.); In re New Haven Clock Watch Co., 253 F.2d 577 (C.A. 2d Cir.); Bank of America v. Embry, 188 Cal.App.2d 425, 10 Cal.Rptr. 602; with respect to payments of subsequently attaching local taxes, United States v. Bond, supra; United States v. Christensen, 269 F.2d 624 (C.A. 9th Cir.); and Page 92 with respect to future advance clause transactions, American Surety Co. v. Sundberg, 58 Wn.2d 337, 363 P.2d 99; Rev. Rule 56-41, 1956-1 Cum. Bull. 562; cf. United States v. Peoples Bank, 197 F.2d 898 (C.A. 5th Cir.); Hoare v. United States, 294 F.2d 823 (C.A. 9th Cir.). But, it is said, the principal and interest of the mortgage were definite in amount, the attorney's fee later became certain by court order and if the tax lien were to prevail the preference of the mortgagee given by § 6323 will be frustrated since payment of the attorney's fee will reduce the net amount realized from the mortgage.
The provision thus does not authorize reimbursement for property taxes or for other expenses that have already been paid. See United States v. Christensen, 269 F.2d 624, 626-27 (9th Cir. 1959) (holding that a mortgagee's payment of state taxes on mortgaged property after federal tax liens were recorded did not create a lien superior to the United States' tax liens).
Alleged beneficial interests of the creditors in this case arose after the tax liens and are subordinate to the tax liens. United States v. City of New Britain, 1954, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520; United States v. Christensen, 9 Cir. 1959, 269 F.2d 624. The case of In re Halprin, 3 Cir. 1960, 280 F.2d 407, does not stand for the proposition it is cited for by appellants, since it involved only the priority of a person financing the contract out of which the taxpayer would earn any property subject to the federal tax lien.
The fact that the lessees might have thereafter extinguished this liability by paying the arrearages did not render such liabilities either contingent or unliquidated. Nothing said in United States v. Christensen, 9 Cir., 269 F.2d 624, or United States v. Bond, 4 Cir., 279 F.2d 837, calls for a different conclusion than expressed above. Both of these cases involved the question of whether the protection afforded by section 6323(a) extends to property taxes assessed against mortgaged property and paid by the mortgagee after a tax lien attached.
The Government correctly points out that Sumpter only permitted reimbursement for property tax payments, which is not what Precision seeks here, and further that Sumpter appears to be an outlier, inconsistent with Ninth Circuit law on the subject. See Dkt. 215 at 10 n.4 (citing United States v. Christensen, 269 F.2d 624, 629 (9th Cir. 1959) (mortgagee's payment of state taxes on mortgaged property after federal tax liens were recorded did not give mortgagee a lien for such local taxes superior to the United States' tax liens)). Precision's post-trial brief argues that its claims for reimbursement, restitution, or unjust enrichment are essentially the same claim in the context of this case.
United States v. New Britain, 1954, 347 U.S. 81, 74 S.Ct. 367, 98 L.Ed. 520. That priority of federal tax liens is determined according to federal law is well settled. Michigan v. United States, 1943, 317 U.S. 338, 63 S.Ct. 302, 87 L.Ed. 312; United States v. New Britain, supra; United States v. Christensen, 9 Cir., 1959, 269 F.2d 624. A lien is specific and perfected so as to be choate when nothing further need be done to make the lien enforceable.
In United States v. Lord, D.C.D.N.H., 1957, 155 F.Supp. 105, the Court held that advances by the mortgagee for insurance made after the notice of the tax lien did not take priority over the federal lien for taxes, although the mortgage, by its terms, provided for these advances by the mortgagee. In United States v. Christensen, 9 Cir., 1959, 269 F.2d 624, the mortgagee, in compliance with the provisions of the mortgage agreement, paid the local taxes after notice of the federal tax lien. The Court held that the federal lien for taxes took priority over the amount so advanced under the mortgage for local taxes.