Jones v. New Pittsburgh Courier Publishing Co.

POMEROY, Justice

(concurring).

I agree with the Court that the federal tax sale involved in this case was invalid because the Internal Revenue Service, although it did in fact give notice of the tax sale as required by Section 6335 (b) of the Internal Revenue Code of 1954,1 nevertheless failed to comply with the mandatory notice of seizure requirement of Section 6335(a) of the Code. Johnson v. Gartlan, 334 F.Supp. 438 (E.D.Va.1971), rev’d on other grounds, 470 F.2d 1104 (4th Cir.), cert. denied, 414 U.S. 865, 94 S.Ct. 122, 38 L.Ed.2d 85 (1973). I append this concurrence to suggest that our disposition of this appeal does not end this case. As a result of pretrial conferences the Chancellor *164limited the issue to be litigated in the first instance to the validity of the tax sale. Appellee, the “New Courier”, however, raised several defenses in its answer and new matter, including that of laches.2 The invalidity of the sale having now been established, the trial court should proceed to consider the other issues raised by the pleadings but not decided at the initial trial.

NIX, J., joins in this concurring opinion.

. The Internal Revenue Service mailed a notice of sale, dated December 19, 1968, to the last known address of the taxpayer, the Pittsburgh Liquidating Corporation. Section 6335(b) of the Internal Revenue Code of 1954, providing for notice of sale, states that such notice shall be given “in the manner prescribed in subsection (a) .” Section 6335(a) provides in part: “If the owner cannot be readily located, or has no dwelling or place of business within such [internal revenue] district, the notice may be mailed to his last known address.” In this case, the Old Courier ceased doing business as of October 15, 1966 and its successor, the Pittsburgh Liquidating Corporation, apparently did not maintain an office. Thus the mailing of the notice of sale to the Old Courier’s last known address fully complied with the statutory requirement of section 6335(b).

. The tax sefle was held on December 30, 1968 and appellant, the receiver of the Pittsburgh Liquidating Corporation (formerly the “Old Courier”), did not institute the present proceeding challenging the legality of the sale until January 12, 1973.