Michael A. Zapara and Gina A. Zapara - Page 23

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          taxpayer’s risk with respect to the levied-upon property.15  In             
          each case, the court held that the taxpayer was entitled to                 
          equitable relief in the form of credit against tax liability for            
          the value of the property seized.                                           
               Because current section 6335(f) had not yet been enacted               
          when Barlows and Pittman were decided, those cases necessarily              
          did not consider the effect of the Government’s failure to adhere           
          to the mandate of section 6335(f) to comply with the owner’s                
          request to sell the seized property (absent a determination and             
          notification to the owner that the sale would not be in the best            
          interests of the United States).  Confronted with that issue in             
          this case, we have concluded that the consequences to petitioners           


               15 The Court of Appeals in United States v. Pittman, 449               
          F.2d 623, 627 (7th Cir. 1971), noted that had the Government                
          followed the requirements of sec. 6335(b) to advertise and sell             
          the seized real estate, there would have been no question that              
          the taxpayer’s liability would have been reduced to reflect the             
          seizure.  As the court observed, the Government “did not follow             
          through and sell the property, as required by the Code.  Instead,           
          it held it and permitted it to deteriorate in value”.  Id. at               
          628.  Consequently, the court concluded:  “We do not conceive               
          that the error of the Government and any loss resulting from it             
          are attributable to the taxpayer.”  Id.                                     
               The Court of Appeals in United States v. Barlows, Inc., 767            
          F.2d 1098 (4th Cir. 1985), affirmed on the basis of the District            
          Court’s opinion, which stated in part:                                      
               the IRS assumed the risk of * * * [the third-party                     
               debtor’s] default when the IRS acted inconsistently                    
               with the statute [sec. 6335(b)], thereby increasing                    
               Barlows’ risk in the property and precluding Barlows                   
               from proceeding against the account itself. [United                    
               States v. Barlows, Inc., 53 Bankr. 986, 989 (E.D. Va.                  
               1984), affd. 767 F.2d 1098 (4th Cir. 1985).]                           




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