United States v. Rizzo

In December, 1932, a cargo- of alcohol was seized by Customs and Coast Guard officials acting together; and the United States filed, in the federal court for New Jersey, a libel in .admiralty praying forfeiture for violation of the customs and navigation laws. Rizzo, as claimant, filed an answer. A decree of forfeiture was entered on the ground that the cargo was carried on a vessel employed in a trade other than that for which she was licensed. The Court of Appeals reversed, citing United States v. Chambers, 291 U. S. 217 . While the Government’s petition for

First. Rizzo does not attempt here to support the order on. the ground stated by the Court of Appeals. Nor could he well do so. The claim for taxes, being non-maritime, could not have been set forth in the libel. Compare The Steamboat Orleans v. Phoebus, 11 Pet. 175 , 182. To defer presenting the claims for taxes until after the final decree adjudicating the right to the property was novt dilatory conduct. Obviously, .there would have been no occasion to proceed against, the property for collection of the -tax if the alcohol had been declared forféit to the-United States.

Second. Rizzo contends that the tax sought to be recovered is a penalty imposed for violation of the National Prohibition Act; hence uncollectible, because, of the repeal of the Eighteenth Amendment. United States v. Chambers, 291 U. S. 217 . Rut this tax -is not a penalty. It is the basic tax upon distilled spirits irrespective of their legal or illegal origin. United States v. One Ford Coupe, 272 U. S. 321 , 328; Various Items of Personal Property v. United States, 282 U. S. 577 , 579. A lien attaches to alcohol “as soon as it is in existence as such” and continues until the tax is paid. Rev. Stat. §§ 3248, 3251; Thompson v. United States, 142 U. S. 471 , 474. That lien is valid against all transferees, without assessment, distraint or other administrative proceedings. Alkan v. Bean, 1 Fed. Cas. No. 202, p. 418; United States v. Turner, 28 Fed. Cas. No. 16,548, p. 232.

Rizzo objects here that the alcohol does not appear to have been of domestic manufacture. His answer in the District Court stated that it was not imported; and there is no showing that it was. the alcohol was subject to the tax, the burden rested upon him to prove payment. Rev. Stat. § 3333, as amended. No evidence to that effect was introduced. The contrary was established.

Fourth. Rizzo contends that the United States is also barred because its counsel agreed, when the terms of sale were framed, that the proceeds should be answerable only to the causes of forfeiture set' forth in the libel and that any tax lien should be waived.' There was no such agreement. . The notice of the “terms and conditions under which the sale will be conducted” (to which counsel for the Government is alleged to have consented) recited: “3. The- cargo of alcohol which is being sold is to be sold free and clear of all claims of any kind or character.” The order of sale had provided that “all further proceedings herein shall be against said proceeds of sale.” Thus it was in the common form authorized by Admiralty Rule 40, which is interpreted as transferring all existing liens

Fifth. Rizzo contends that the Circuit Court of Appeals sitting in admiralty lacks jurisdiction to enforce the lien for taxes. The argument is that collection of internal revenue taxes must be effected in accordance with prescribed statutory methods; and that the Act of February 26, 1926, c. 27, § 1115, 44 Stat. 117 , and Rev. Stat. § 838 provide specifically for collection by the Collector of Internal Revenue through proceedings specified. But compare Rev. Stat. § 3213. The order of the appellate court confirming the sale deprived the Government of two of the statutory methods. First, the right to forfeit the alcohol even after it had been transferred to a bona fide purchaser while in a container not properly stamped, Act of January 11, 1934, c. 1, Title II, § 206, 48 Stat. 317 . Second, the right to collect the taxes from the purchaser under the court’s order, Rev. Stat. § 3334, as amended by Act of March 1, 1879, c. 125, § 5, 20 Stat. 340 . But in ordering sale of the alcohol free of liens, the Court of Appeals in effect provided, in accord with the common practice, that existing liens should attach to.the proceeds. Compare Terre Haute & L. Ry. v. Harrison, 96 Fed. 907 , 911. These being in custodia legis, it was proper to petition that they be applied towards satisfaction of the tax. Compare Marshall v. New York, 254 U. S. 380 , 384-385; In re Tyler, 149 U. S. 164 , 182-183, 187. The practice prevails in admiralty as in other courts. In Schuchardt v. Ship Angelique, 19 How. 239 , 241, where proceeds of the sale of a mortgaged ship had been paid into the registry,

Sixth. Finally, Rizzo contends that this Court lacks jurisdiction because the order appealed from does no more than carry out another order not here for review. This is not true. The United States '"seeks to enforce against property in the possession of the Circuit Court of Appeals a right which had not theretofore been litigated, and which was not barred by earlier proceedings. If the Government had been a stranger, to the litigation it would have been entitled to intervene; compare Savannah v. Jesup, 106 U. S. 563 , 564-565; Krippendorf v. Hyde, 110 U. S. 276 , 282-283; Gumbel v. Pitkin, 113 U. S. 545 , 547-548; 124 U. S. 131 ; and a denial of intervention would have been reviewable as a final judgment; compare Central Trust Co. v. Grant Locomotive Works, 135 U. S. 207 , 224-225; Credits Commutation Co. v. United States, 177 U. S. 311 , 315-316; Clark v. Williard, 292 U. S. 112 , 117-119. Its right to have the new issue adjudicated is not-to be denied because it was already a party'to the suit. Compare In the Matters of Howard, 9 Wall. 175 , 183. The cases which hold that merely administrative . proceedings under a decree may not be brought here for review have no application. See Wynkoop, H., C. Co. v. Gaines, 227 U. S. 4 . Compare Collins

The order is reversed with direction to the Circuit Court of Appeals to pay to the United States the proceeds of the sale now in the registry after deducting the usual court charges.

Reversed.