The opinion of the court was delivered by: John E. Miller, Chief Judge.
There is before the court for consideration and disposition the
plaintiff's motion for summary judgment.
The record, including the pleadings, admissions, affidavits and
exhibits on file in the instant case, together with the record in
the related case, Gunn v. Mathis, D.C., 157 F. Supp. 169, Civil
No. 1385, discloses all of the material facts necessary to be
considered in the determination of the motion.
The defendant is a citizen of Arkansas and resides at Van Buren
in Crawford County. Jurisdiction is conferred by Title
28 U.S.C.A. §§ 1340 and 1345.
On April 14, 1950, and March 7, 1950, the defendant was sent
statutory notices of deficiencies in taxes for the calendar years
1942, 1943, 1944, 1945 and 1946, plus 50 percent fraud penalties
for the years 1942, 1943 and 1944. The fraud penalties were based
upon a determination of the Commissioner of Internal Revenue that
the defendant had filed false and fraudulent income tax returns
for the years involved with the intent to evade the tax.
Following receipt of the notices of deficiencies, the defendant
duly filed petitions in the Tax Court of the United States,
Docket Nos. 28673 and 28674, which court on April 27, 1956, held
that "the fraud penalties for 1942 to 1944, inclusive, were
properly determined by respondent, and that petitioner's returns
for those years were fraudulent with intent to evade tax.*fn1
On July 26, 1956, the defendant filed his petition in the
United States Court of Appeals for the Eighth Circuit for review
of the decision of the Tax Court, but failed to file a bond as
provided in Title 26 U.S.C.A. § 7485 (Internal Revenue Code of
1954), staying the assessment and collection of the deficiencies
and fraud penalties as determined by the Tax Court by its
decision of April 27, 1956.
On August 31, 1956, while the petition for review was pending
in the Court of Appeals, assessments of the deficiencies and
fraud penalties were made in conformity with the decision of the
Tax Court, and on October 26, 1956, notices of tax lien based
upon the assessments of August 31, 1956, were filed and recorded
in the office of the Circuit Clerk and Recorder of Crawford
On August 8, 1957, the United States Court of Appeals rendered
its opinion in the suit filed by the defendant, Gunn v.
Commissioner of Internal Revenue, 8 Cir., 1957, 247 F.2d 359. On
page 366 of the opinion the court said:
"For the reasons stated, the Tax Court's decision
as related to the taxable years 1942-1944 is
reversed, with remand for further proceedings, and
the decision as related to the taxable years
1945-1946 is affirmed."
On November 15, 1957, the defendant commenced an action in this
court, Gunn v. Mathis, D.C., 157 F. Supp. 169 (Civil No. 1385)
against the District Director of Internal Revenue and other
Internal Revenue employees seeking an injunction against any
levy, seizure or distraint under the assessments of August 31,
1956, on the ground that such assessments as to the calendar
years 1942, 1943
and 1944, by virtue of the decision of the Court of Appeals, had
not become final.*fn2
Following the remand to the Tax Court of Gunn v. Commissioner,
supra, the Commissioner of Internal Revenue on December 9, 1957,
filed in the Tax Court a motion to require the petitioner
(defendant here) to make a further and better statement of the
nature of his defense. On the next day the following order was
entered by the Tax Court granting the Commissioner's motion:
"On December 9, 1957, the Commissioner filed a
motion for a further and better statement of the
nature of petitioner's defense. The premises
considered, and so that as many facts as possible may
be stipulated prior to trial, it is
"Ordered, that on or before January 3, 1958,
petitioner file an amended petition making a further
and better statement with respect to his net worth on
December 31, 1941, and on whatever other material
dates petitioner intends to produce evidence of net
worth, showing the following items:
"B. Bank balances, showing the names and location
"C. Securities, showing the nature of the items,
dates acquired and cost.
"D. Personal property, showing the individual
items, dates acquired and cost.
"E. Real property, showing the individual items,
dates acquired by petitioner and cost.
"F. Mortgages and notes held by petitioner, showing
each individual instrument, dates acquired and basis
"G. Receivables, both business and personal,
showing each individual item, dates acquired and
"I. Petitioner's mortgages and notes held by
others, showing each individual instrument, dates
given and the amounts owed on each.
"J. Payables, both business and personal, showing
each individual item, dates on which ...