- 27 - Government acted with “affirmative negligence” in serving as custodian of the levied-upon property.19 Id. at 948. Whether Section 7433 Is the Exclusive Remedy By failing to comply with section 6335(f), respondent denied petitioners the benefit of the statutory remedy whereby they sought to protect themselves against future losses in the stock’s value. Respondent suggests, however, that because section 6335(f) specifies no remedy for respondent’s noncompliance, there can be no remedy other than as might arise from a civil cause of 19 Citing United States v. Whiting Pools, Inc., 462 U.S. 198 (1983), the Court of Appeals analogized the remedies available to the IRS under secs. 6331 and 6332 to the remedies available to private secured creditors under Article 9 of the Uniform Commercial Code. Stead v. United States, 419 F.3d at 948. The Court of Appeals noted that U.C.C. sec. 9-207(a) requires a secured creditor in possession to use “reasonable care in serving as custodian of the property” and suggested that the taxpayers might have been entitled to credit against their tax liability if they could have shown “affirmative negligence” by the Government in this regard. Id. The Court of Appeals in Stead had no occasion to consider the application of this standard of reasonable care to a situation, like the instant case, where the debtor demands the secured party to liquidate the collateral. We note, however, that pursuant to U.C.C. sec. 9-207(a): “If the secured party negligently fails to liquidate the collateral after a demand to that effect has been made, the secured party will be held liable for the resultant loss without regard to the presence in the contract of a clause exempting the secured party from liability.” 9 Anderson, Uniform Commercial Code, sec. 9-207:10, at 11 (3d ed. 1999). Because we have grounded the specific relief in Zapara I on respondent’s violation of sec. 6335(f), we need not and do not decide whether respondent’s employees acted negligently in this regard or whether such negligent conduct might constitute a separate ground for providing petitioners credit against their tax liability.Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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