456
Thomas, J., dissenting
after-acquired real property, "as to defeat [the] later-filed federal tax lien." United States v. Pioneer American Ins. Co., 374 U. S. 84, 88 (1963).
Applying the governing "first in time" rule, the Court recognizes—as it must—that if the Bank's interest in the property was "perfected in the sense that there [was] nothing more to be done to have a choate lien" before September 9, 1987 (the date the federal notice was filed), United States v. New Britain, 347 U. S. 81, 84 (1954), "that is the end of the matter; the Bank's lien prevails," ante, at 450. Because the Bank's identity as lienor and the amount of its judgment lien are undisputed, the choateness question here reduces to whether "the property subject to the lien" was sufficiently "established" as of that date. New Britain, supra, at 84. Accord, Pioneer American, supra, at 89. See 26 CFR § 301.6323(h)-1(g) (1992). The majority is quick to conclude that "establish[ment]" cannot precede attachment, and that a lien in after-acquired property therefore cannot be sufficiently perfected until the debtor has acquired rights in the property. See ante, at 451-453. That holding does not follow from, and I believe it is inconsistent with, our precedents.
We have not (before today) prescribed any rigid criteria for "establish[ing]" the property subject to a competing lien; we have required only that the lien "become certain as to . . . the property subject thereto." New Britain, supra, at 86 (emphasis added). Our cases indicate that "certain" means nothing more than "[d]etermined and [d]efinite," Pioneer American, supra, at 90, and that the proper focus is on whether the lien is free from "contingencies" that stand in the way of its execution, United States v. Security Trust & Savings Bank, 340 U. S. 47, 50 (1950). In Security Trust, for example, we refused to accord priority to a mere attachment lien that "had not ripened into a judgment," New Britain, supra, at 86, and was therefore "contingent upon taking subsequent steps for enforcing it," 340 U. S., at 51.
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