Joseph F. and Caroline Enos - Page 34

                                       - 34 -                                         
         in the instant case are different and, accordingly, the                      
         principles of res judicata do not apply in the instant case.  See            
         Hambrick v. Commissioner, supra at 351.                                      
              Respondent contends that two cases have already addressed               
         the central issue in the instant case; i.e., whether the August              
         15, 1978, notice of deficiency satisfied petitioners’ 1971 tax               
         liability:  Enos v. DeHart, 217 Bankr. 457 (Bankr. M.D. Pa.                  
         1997),15 and Enos v. United States, Civil Action No. 90-10178-WAG            


              14(...continued)                                                        
               argument that the debtor should be subrogated to the                   
               position the IRS has, vis a vis, Enos should be                        
               afforded the debtor.  We, therefore, determine that the                
               facts of this case present a situation in which the                    
               debtor should be subrogated to the position held by the                
               IRS pursuant to the levy. * * *                                        
               15Enos v. DeHart, 217 Bankr. 457, 465 (Bankr. M.D. Pa.                 
          1997), states:                                                              
                    As was observed earlier, the Enoses are ultimately                
               liable for the tax and the entire amount of unpaid                     
               interest on tax.  Notwithstanding that conclusion, I                   
               recognize the Enoses may argue that by agreeing to                     
               payment terms with Metropolitan, the Internal Revenue                  
               Service exercised such control and dominion over the                   
               account receivable owing the Enoses by Metropolitan                    
               that the Internal Revenue Service may be required to                   
               credit the taxpayer for the full amount of the value of                
               the receivable levied upon.  Barlow’s, Inc. v. United                  
               States, 36 Bankr. 826, 829 (Bank. E.D. Va.), affd. 53                  
               Bankr. 986 (E.D. Va. 1984), affd. 767 F.2d 1098 (4th                   
               Cir. 1985).  The impact of such a conclusion on the                    
               Enoses’ future liability would be pivotal.                             
               Nevertheless, in recognizing the Enoses’ overall                       
               liability to pay their taxes, including interest, I                    
               will take no position as to whether they would have any                
               defenses to such claim.  A finding as to the ultimate                  
               availability of various defenses by the Enoses to the                  
               Internal Revenue Service does not appear to be                         
                                                             (continued...)           




Page:  Previous  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  37  Next

Last modified: May 25, 2011