1. A tax lien of the United States obtained under 26 U.S.C. §§
3670, 3671, 3672, held
prior in right to an attachment
lien on property in California obtained under California Code of
Civil Procedure, §§ 537, 542(a), where the federal tax lien was
recorded subsequent to the date of the attachment lien, but before
the attaching creditor obtained judgment. Pp. 340 U. S.
2. The effect of a state law lien in relation to a provision of
federal law for the collection of debts owed the United States is a
federal question. P. 340 U. S. 49
3. Although a state court's classification of a lien as specific
and perfected is entitled to weight, it is subject to reexamination
by this Court. On the other hand, if the state court itself
describes the lien as inchoate, this classification is practically
conclusive. Pp. 340 U. S.
4. As described by the highest court of California, the
attachment lien under the law of that State is contingent or
inchoate. P. 340 U. S.
5. Priority in right of federal tax liens obtained under 26
U.S.C. §§ 3670, 3671, 3672, is not defeated by a contingent,
inchoate lien prior in time. Pp. 340 U. S.
6. The result in this case cannot be affected by the doctrine of
relation back. P. 340 U. S.
93 Cal. App. 2d
, 209 P.2d 657, reversed.
In four suits involving parcels of land in California, a state
court awarded a Judgment creditor priority over liens of the United
States for taxes. The District Court of Appeal affirmed. 93 Cal. App. 2d
, 209 P.2d 657. The State Supreme Court declined to hear the
case. This Court granted certiorari. 339 U.S. 947.
p. 340 U. S.
Page 340 U. S. 48
MR. JUSTICE MINTON delivered the opinion of the Court.
The question presented here is whether a tax lien of the United
States is prior in right to an attachment lien where the federal
tax lien was recorded subsequent to the date of the attachment
lien, but prior to the date the attaching creditor obtained
On October 17, 1946, Wilton M. Morrison sued George and Genell
Stylianos on an unsecured note. Pursuant to § 537 and 542 of the
California Code of Civil Procedure, [Footnote 1
] Morrison procured the attachment of four
parcels of real estate owned by the Stylianos in San Diego County.
On April 24, 1947, Morrison obtained judgment, and it was recorded
in the office of the Recorder of San Diego County on May 2, 1947.
Meanwhile, on December 3, 5, and 10, 1946, the United States had
filed notices of federal tax liens in the same office. [Footnote 2
Subsequently, four suits were brought in the Superior Court of
San Diego County involving the four parcels of land upon which
Morrison had procured the attachment. Morrison and the United
States were made parties defendant in each of these suits. The
first suit was brought to quiet title to one of the parcels of real
estate. The Stylianos had sold this parcel to the plaintiffs of the
suit, who paid the balance of the purchase price into court. The
other three suits were to foreclose separate mortgages on the other
three parcels. The Superior Court ordered the balance of the
purchase price and any surplus
Page 340 U. S. 49
remaining from the foreclosure sales after the mortgagees
received payment in full to be applied first in payment of
Morrison's judgment lien, and secondly in payment of any federal
tax liens. [Footnote 3
The District Court of Appeal for the Fourth Appellate District
affirmed. Winther v. Morrison, 93 Cal. App. 2d
, 209 P.2d 657. The Supreme Court of California declined to
hear the case, and we granted certiorari. 339 U.S. 947. [Footnote 4
] The four cases were
consolidated below for purposes of appeal, and Morrison's claims of
priority were treated as a single issue. They are treated here in
the same manner.
Section 537 of the California Code of Civil Procedure provides
that a plaintiff may have the property of the defendant attached at
any time "as security for the satisfaction of any judgment that may
be recovered." Section 542a provides:
"The lien of the attachment on real property attaches and
becomes effective upon the recording of a copy of the writ,
together with a description of the property attached, and a notice
that it is attached with the county recorder of the county wherein
said real property is situated. . . . The attachment, whether
heretofore levied or hereafter to be levied, shall be a lien upon
all real property attached for a period of three years after the
date of levy unless sooner released or discharged either as
provided in this chapter, or by dismissal of the action, or by the
recording with the recorder of an abstract of the judgment in the
The effect of a lien in relation to a provision of federal law
for the collection of debts owing the United States is always a
federal question. Hence, although a state court's classification of
a lien as specific and perfected is
Page 340 U. S. 50
entitled to weight, it is subject to reexamination by this
Court. On the other hand, if the state court itself describes the
lien as inchoate, this classification is "practically conclusive."
Illinois v. Campbell, 329 U. S. 362
329 U. S. 371
The Supreme Court of California has so described its attachment
lien in the case of Puissegur v. Yarbrough, 29 Cal. 2d
, 412, 175 P.2d 830, 831, by stating that "The attaching
creditor obtains only a potential right or a contingent lien. . . .
" Examination of the California statute shows that the above is an
apt description. The attachment lien gives the attachment creditor
no right to proceed against the property unless he gets judgment
within three years or within such extension as the statute
provides. Numerous contingencies might arise the would prevent the
attachment lien from ever becoming perfected by a judgment awarded
and recorded. Thus, the attachment lien is contingent or inchoate
-- merely a lis pendens
notice that a right to perfect a
Nor can the doctrine of relation back -- which, by process of
judicial reasoning, merges the attachment lien in the judgment and
relates the judgment lien back to the date of attachment -- operate
to destroy the realities of the situation. When the tax liens of
the United States were recorded, Morrison did not have a judgment
lien. He had a mere "caveat of a more perfect lien to come."
New York v. Maclay, 288 U. S. 290
288 U. S. 294
The liens asserted by the United States stem from 53 Stat. 448,
449, 26 U.S.C. §§ 3670, 3671, 3672. Section 3670 provides:
"If any person liable to pay any tax neglects or refuses to pay
the same after demand, the amount (including any interest, penalty,
additional amount, or addition to such tax, together with any costs
that may accrue in addition thereto) shall be a lien in favor of
the United States upon all property and rights to property, whether
real or personal, belonging to such person."
Section 3671 provides that the lien arises when
Page 340 U. S. 51
the assessment lists are received by the Collector unless some
other date is specified by law. Section 3672 provides that the lien
shall not be valid against mortgagees, pledgees, purchasers, or
judgment creditors until notice thereof has been filed in the
office provided by the law of the state for such filing -- in this
case, the office of the Recorder of San Diego County.
In cases involving a kindred matter, i.e.,
priority under Rev.Stat. § 3466, [Footnote 5
] it has never been held sufficient to defeat
the federal priority merely to show a lien effective to protect the
lienor against others than the Government, but contingent upon
taking subsequent steps for enforcing it. Illinois v. Campbell,
supra, 329 U. S. 374
If the purpose of the federal tax lien statute to insure prompt and
certain collection of taxes due the United States from tax
delinquents is to be fulfilled, a similar rule must prevail here.
Accordingly, we hold that the tax liens of the United States are
superior to the inchoate attachment lien of Morrison, and the
judgment of the District Court of Appeal for the Fourth Appellate
Deering's Calif.Code Civ.Proc.Ann.1941, §§ 537 and 542.
Notice of a further lien in the sum of $412.18 was filed on
January 22, 1948, but as to this the Government does not claim
The Government also disclaims any priority over the mortgages
foreclosed in these proceedings.
Morrison died while the case was pending on appeal to the
District Court of Appeal, and the Security District Court of
Appeal, as executor of his last will and testament was
Rev.Stat. § 3466.
"Whenever any person indebted to the United States is insolvent,
or whenever the estate of any deceased debtor, in the hands of the
executors or administrators is insufficient to pay all the debts
due from the deceased, the debts due to the United States shall be
first satisfied, and the priority hereby established shall extend
as well to cases in which a debtor, not having sufficient property
to pay all his debts, makes a voluntary assignment thereof, or in
which the estate and effects of an absconding, concealed, or absent
debtor are attached by process of law, as to cases in which an act
of bankruptcy is committed."
MR. JUSTICE JACKSON, concurring.
I am persuaded that we are required to hold the tax lien of the
Government superior to the California attachment. While we should
accept the law of California as
Page 340 U. S. 52
its court has declared it, the federal question remains whether
it is in conflict with 26 U.S.C. §§ 3670-3672, 53 Stat. 448, as
amended, 53 Stat. 882. The history of this tax lien statute
indicates that only a judgment creditor in the conventional sense
United States v. Snyder, 149 U.
(1892), was decided at a time when the forerunner
of the present statute, § 3186 of the Revised Statutes as amended
by § 3 of the Act of March 1, 1879, 20 Stat. 331, provided:
"If any person liable to pay any tax neglects or refuses to pay
the same after demand, the amount shall be a lien in favor of the
United States from the time when the assessment list was received
by the collector, except when otherwise provided, until paid, with
the interest, penalties, and costs that may accrue in addition
thereto, upon all property and rights to property belonging to such
case held, in interpreting the above statute
along with Art. I, § 8 of the Constitution, that the lien created
by that statute was a valid binding lien even against a bona
purchaser for value without knowledge or notice of the
existence of such a lien.
Thereafter, the statute was amended, and a proviso added which
". . . That such lien shall not be valid as against any
mortgagee, purchaser, or judgment creditor until notice of such
lien shall be filed by the collector . . ."
in the appropriate place for filing. 37 Stat. 1016. The House
Report accompanying the proposed amendment, H.R.Rep.No. 1018, 62d
Cong., 2d Sess. 2, 1912, said in part, after citing the above
". . . the lien is so comprehensive that it covers all the
property and rights to property of the delinquent situated anywhere
in the United States, and any person taking title to real estate is
subjected to the
Page 340 U. S. 53
impossible task of ascertaining whether any person, who has at
any time owned the read estate in question, has been delinquent in
the payment of the taxes referred to while the owner of the real
estate in question. The business carried on under the internal
revenue law may be at a great distance from the property affected
by this secret lien, but this will not relieve the property from
In 1938, United States v. Rosenfield, 26 F. Supp.
, held that a bona fide
purchaser for value of
shares of stock from a seller against whom notice of lien for
federal income taxes had been duly filed prior to the sale took
subject to the lien even though the purchaser did not have notice
or knowledge of such lien. As a direct result of this decision, the
statute was again amended, this time to include pledgees
and the exception in case of securities as now found in 26 U.S.C.
§3672(b)(1). The reason for this amendment is disclosed in the
Committee Report accompanying the Revenue Bill of 1939.
H.R.Rep.No.855, 76th Cong., 1st Sess. 26, 1939. This report says,
". . . While it is true that the filing of the notice of the tax
lien may constitute notice in the case of real property, it is
inequitable for the statute to provide that it constitutes notice
as regards securities. . . . An attempt to enforce such liens on
recorded notice would, in many cases, impair the negotiability of
securities and seriously interfere with business transactions. . .
My conclusion from this history is that the statute excludes
from the provisions of this secret lien those types of interests
which it specifically included in the statute, and no others.