Michael A. Zapara and Gina A. Zapara - Page 27

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          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.                                                              




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