FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS June 6, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
MARK ANDRES GREEN,
Plaintiff–Appellant, No. 12-5201
v. (D.C. No. 4:12-CV-00296-CVE-FHM)
PERSHING, LLC; JOHN DOES 1-20, (N.D. Okla.)
Defendants–Appellees.
ORDER AND JUDGMENT*
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered
submitted without oral argument.
Plaintiff Mark Green, proceeding pro se, appeals the district court’s entry of
judgment on the pleadings in favor of Defendant Pershing, LLC. All of Plaintiff’s claims
against Defendant arose from Defendant’s compliance with an Internal Revenue Service
notice of levy regarding Plaintiff’s individual retirement account. The district court
concluded that Plaintiff was barred from obtaining relief against Defendant pursuant to 26
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
U.S.C. § 6332(e), which provides that a third party who surrenders property to the IRS in
accordance with a levy “shall be discharged from any obligation or liability to the
delinquent taxpayer and any other person with respect to such property or rights to
property arising from such surrender or payment.” The court accordingly granted
Defendant’s motion for judgment on the pleadings.
We see no error in this ruling. Plaintiff’s arguments regarding the validity of the
levy are misplaced and would be “properly considered in a suit against the IRS and not
against [Defendant].” Burroughs v. Wallingford, 780 F.2d 502, 503 (5th Cir. 1986) (per
curiam). Questions about the validity of a levy “are not valid reasons for refusing to
honor a levy.” United States v. Moskowitz, Passman & Edelman, 603 F.3d 162, 166 (2d
Cir. 2010) (internal quotation marks omitted). Indeed, § 6332(e)’s protections are “not
limited to levies which survive challenges to their validity.” Moore v. Gen. Motors
Pension Plans, 91 F.3d 848, 851 (7th Cir. 1996) (per curiam). Nor is there any merit to
Plaintiff’s argument—based upon the long-defunct 1939 tax code and cases interpreting
it—that Defendant should not have complied with the levy because it was not executed
via a warrant of distraint. When dealing with intangible property, such as Plaintiff’s
individual retirement account, the IRS effectuates a levy “by the sole act of serving notice
of levy upon the third party holding the property.” Kane v. Capital Guardian Trust Co.,
145 F.3d 1218, 1221 (10th Cir. 1998). The IRS did so in this case, Defendant
appropriately complied with the notice of levy, and § 6332(e) now protects Defendant
from liability.
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For substantially the same reasons given by the district court, we AFFIRM the
district court’s entry of judgment in favor of Defendant and against Plaintiff.
Entered for the Court
Monroe G. McKay
Circuit Judge
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