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the section 6335(f) mandate to comply with petitioners’ request
to sell it. In evaluating the circumstances under which the
Government should be considered to assume the risk of loss with
respect to seized property, three appellate court cases are
especially instructive. Two of these cases, United States v.
Barlows, Inc., 767 F.2d 1098 (4th Cir. 1985), and United States
v. Pittman, 449 F.2d 623 (7th Cir. 1971), were discussed in
Zapara I. In these two cases, the Government was held to have
assumed the risk of loss with respect to seized property; the
taxpayers were afforded the same type of equitable relief that we
have provided petitioners. The third case, Stead v. United
States, 419 F.3d 944 (9th Cir. 2005), decided after our opinion
in Zapara I (and after the filing of respondent’s motion for
reconsideration), concluded that the risk of loss did not pass to
the Government. A comparison of the facts and analyses of these
three cases convinces us that the result in the instant case
properly aligns with the result in Barlows and Pittman.
The courts in Barlows and Pittman held that the Government
assumed the risk of loss with respect to levied-upon properties
(an account receivable in Barlows, real estate in Pittman) where
it exercised dominion and control over the properties, having
failed to publish notice of sale “as soon as practicable”, as
required by section 6335(b). In each case, the Government’s
actions impeded the taxpayer’s ability to use the levied-upon
property to defray outstanding tax liabilities and increased the
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