Russell v. United States

FILED
United States Court of Appeals
Tenth Circuit

December 19, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY J. RUSSELL; ANITA L.
RUSSELL,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA, No. 07-1438

Defendant-Appellant,

and

HOLLY WILLIAMS, Public Trustee
of El Paso County,

Defendant.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:07-CV-00456-RPM)

Philip J. Giacinti, Jr., of Procopio, Cory, Hargreaves and Savitch LLP, Denver,
Colorado, for Plaintiffs-Appellees.

Patrick J. Urda (Nathan J. Hochman, Assistant Attorney General, Bruce R.
Ellisen, Attorney, and Troy A. Eid, of Counsel, with him on the briefs), U.S.
Department of Justice, Washington, D.C., for Defendant-Appellant.

Before MURPHY, BRORBY and HARTZ, Circuit Judges.
BRORBY, Circuit Judge.

Appellant United States (hereafter “government”) appeals the district

court’s judgment in favor of Timothy and Anita Russell (the Russells) in their

federal action to quiet title in their real property on which the government holds a

recorded federal tax lien. The government contends the district court erred in

relying on Colorado law in granting the Russells judgment because a provision of

the Internal Revenue Code, 26 U.S.C. § 7425(b), preempts state law and leaves

federal tax liens undisturbed where the government did not receive notice of a

nonjudicial sale. We exercise our jurisdiction under 28 U.S.C. § 1291 and reverse

and remand with instructions for the district court to vacate its prior judgment and

enter judgment in favor of the government on its motion to dismiss the complaint.

I. Factual and Procedural Background

During the underlying action, the parties agreed to the following undisputed

pertinent facts. In August 2003, Ashcroft Homes, Inc. (Ashcroft) obtained a

construction loan in the amount of $506,400 from U.S. Bank in exchange for a

deed of trust to the property in question. Almost a year later, in July 2004, the

Internal Revenue Service (IRS) filed a notice of a federal tax lien against

Ashcroft on the property in the amount of $160,353.09, and on July 23, 2004, the

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Clerk and Recorder of El Paso County, Colorado, recorded the lien. On October

24, 2004, U.S. Bank assigned the deed of trust to Timber Creek Holdings, L.P.

(Timber Creek).

In February 2005, after Ashcroft defaulted on its loan, Timber Creek

commenced foreclosure proceedings. On April 13, 2005, the Public Trustee of El

Paso County conducted a foreclosure sale at which Timber Creek purchased the

property for $630,987.94. However, the government was not provided notice of

the foreclosure sale. In November 2005, Timber Creek sold the property to the

Russells.

On March 7, 2007, the Russells filed a complaint against the United States

seeking to quiet title to their property under Colo. Rev. Stat. § 38-38-506(2)(a).

The government moved to dismiss the complaint in conjunction with 26 U.S.C.

§ 7425(b)(1), contending it preempted Colorado law and required the lien remain

undisturbed unless it received notice of the sale, which it did not.

At a hearing held on the government’s motion to dismiss, the district court

heard argument from both parties, determined no factual disputes existed, and

granted judgment in favor of the Russells, relying on Colo. Rev. Stat. § 38-38-

506(2) and 26 U.S.C. 7425(d), a redemption provision, in holding the government

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must redeem or purchase the property for $710,959.42 within 120 days or forfeit

its lien, making title to the property “free and clear of any claim of lien” by the

government. This appeal followed.

II. Discussion

On appeal, the government poses the same argument it made before the

district court, contending the Colorado statute on which the district court relied

conflicts with and is preempted by provisions of the Internal Revenue Code

governing the validity of federal tax liens after a nonjudicial sale. In making this

argument, it points out that a government lien generally attaches to the delinquent

taxpayer’s property and rights to that property, and the lien remains attached even

if the property is transferred to a third party. In a case, like here, where a

nonjudicial sale occurs on property in which the government holds a tax lien, it

argues these general principles continue to apply through 26 U.S.C. § 7425(b),

which requires, as intended by Congress, for the lien to remain undisturbed if the

Secretary of Treasury did not receive notice of the sale at least twenty-five days

prior to the sale and the government properly recorded notice of the lien at least

thirty days before the sale. The government points out this remedy allows it to

enforce its junior lien against the property through administrative or judicial

proceedings, which is incompatible with the remedy in Colo. Rev. Stat. § 38-38-

506, which provides the interest of a lien holder who did not receive notice of

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nonjudicial sale must be terminated if the lien holder is given the opportunity to

exercise rights to cure and redeem the property and fails to do so. It also argues

subsection (d) of 26 U.S.C. § 7425, allowing the government to redeem property,

merely gives the United States a permissive right to redeem property referenced

in § 7425(b) within 120 days and is only one of several options the government

may pursue to enforce its lien. 1

In response, the Russells argue in favor of the district court’s application of

Colo. Rev. Stat. § 38-38-506(2)(a). They contend 26 U.S.C. § 7425(b) does not

contain language expressly or impliedly preempting state law and that this

circuit’s existing case law establishes Colo. Rev. Stat. § 38-38-506 does not

contravene 26 U.S.C. § 7425(b). In addition, they point out that subsection (d) of

26 U.S.C. § 7425, like § 38-38-506, also prescribes redemption as a remedy so

that the state and federal remedies are similar and not in conflict. They further

argue the purpose of the Federal Tax Lien Act of 1966 2 is not served by the

1
The government also suggests the Russells’ only remedy for removing the
lien is outlined in 26 U.S.C. § 6325(b)(4)(A), which requires them to either
deposit cash or a bond in the amount the government determines to be the value
of its lien interest, after which they have 120 days to file an action challenging
the value of the lien and possibly obtaining a refund of any amount exceeding the
value determined by the court. Any issue of other relief available to the Russells
is not before us on appeal for disposition, and therefore, we do not address it.
2
Pub. L. No. 89-719, 80 Stat. 1125 (as codified in 26 U.S.C. §§ 3505,
7425-26, 7810) (1966).

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government’s argument because 26 U.S.C. § 6323(a) and (f) make federal lien

priorities subject to a state’s priority scheme, and 28 U.S.C. § 2410(a) and (d) 3

reference both state court jurisdiction and laws of the situs state, illustrating state,

rather than federal, law should be applied.

We begin with our standard of review for a motion to dismiss, which is the

procedural vehicle on which the government sought resolution and the district

court disposed of the case. “Because the sufficiency of a complaint is a question

of law, we review de novo the district court’s grant of a motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), applying the same standards

as the district court.” Sunrise Valley, LLC v. Kempthorne, 528 F.3d 1251, 1254

(10 th Cir. 2008) (internal quotation marks and citation omitted), petition for cert.

filed, 77 USLW 3267 (Oct. 20, 2008) (No. 08-537). “Those standards require that

we must accept as true all well-pleaded facts, and construe all reasonable

allegations in the light most favorable to the plaintiff.” Id. Dismissal is

appropriate for “failure to state a claim upon which relief can be granted,” Fed. R.

Civ. Proc. 12(b)(6), which, in rare instances, may occur on the “basis of a

3
While the Russells cite subsection (d), it does not contain any reference
to the local laws of the situs state. See 28 U.S.C. § 2410(d). Instead, we assume
they are referring to subsection (c), which references “the local law of the place
where the court is situated” in generally discussing judgments or decrees
discharging property from liens held by the United States. See 28 U.S.C.
§ 2410(c).

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dispositive issue of law.” Neitzke v. Williams, 490 U.S. 319, 326 (1989); see also

Gregory v. United States, 942 F.2d 1498, 1500 (10 th Cir. 1991).

We next turn to the issue of preemption, on which the government brought

its motion to dismiss and its appeal. A fundamental principle in the Constitution

under the Supremacy Clause “is that Congress has the power to preempt state

law.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). The

preemptive effect of federal law may be apparent from the express terms of the

statute, or it may be implicit. See Pac. Gas & Elec. Co. v. State Energy Res.

Conservation & Dev. Comm’n, 461 U.S. 190, 203-04 (1983). Implicit preemption

of state law may occur in at least two circumstances, when: (1) Congress intends

federal law to “occupy the field,” or (2) state law is naturally preempted to the

extent it conflicts with a federal statute. See Crosby, 530 U.S. at 372. Such

conflict occurs when “compliance with both federal and state regulations is a

physical impossibility” or when the state law “stands as an obstacle to the

accomplishment and execution of the full purposes and objectives of Congress.”

Pacific Gas, 461 U.S. at 204 (internal quotation marks and citations omitted).

In determining whether a statute expressly or implicitly preempts state law,

we look to the principles of statutory construction. “We review a district court’s

statutory interpretation de novo,” and “[i]t is our primary task in interpreting

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statutes to determine congressional intent, using traditional tools of statutory

construction.” United States v. Manning, 526 F.3d 611, 614 (10 th Cir. 2008)

(internal quotation marks and citations omitted), petition for cert. filed (Oct. 20,

2008) (No. 08-6852). In ascertaining such congressional intent, “[w]e begin by

examining the statute’s plain language,” and “[i]f the statutory language is clear,

our analysis ordinarily ends.” Id. Moreover, “it is an elemental canon of

statutory construction that where a statute expressly provides a particular remedy

or remedies, a court must be chary of reading others into it.” Cuba Soil & Water

Conservation Dist. v. Lewis, 527 F.3d 1061, 1065 (10 th Cir. 2008) (internal

quotation marks and citation omitted), petition for cert. filed, 77 USLW 3252

(Oct. 13, 2008) (No. 08-499). “If the statute’s plain language is ambiguous as to

Congressional intent, we look to the legislative history and the underlying public

policy of the statute.” Manning, 526 F.3d at 614 (internal quotation marks and

citation omitted).

With these principles in mind, we turn to the statutes at issue in this appeal.

Under Colorado law, when a person or entity with a recorded interest, such as a

lien holder, is not named as a party defendant in the foreclosure action or properly

notified of the foreclosure sale, that person or entity is considered an “omitted

party.” See Colo. Rev. Stat. § 38-38-506(1). Generally, an omitted lien holder’s

interest in the foreclosed property may be terminated if, in a civil action

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commenced by an interested person, the omitted lien holder is afforded rights of

cure and redemption. See Colo. Rev. Stat. § 38-38-506(2). The omitted lien

holder has a right to redeem the property within a specified time, and if no

redemption occurs within that time frame, title of the property sold “shall vest” in

the holder of the certificate of purchase or redemption. See Colo. Rev. Stat. § 38-

38-501.

In determining whether federal law preempts such state law, we turn to the

federal statute at issue, the legislative history of 26 U.S.C. § 7425(b), and case

law applicable to government tax liens. As the government contends, a properly

filed government tax lien generally attaches to a delinquent taxpayer’s property

and rights to that property and remains attached, even if the property is

transferred to a third party, until the lien is satisfied or becomes unenforceable by

reason of lapse of time. See 26 U.S.C. §§ 6321 and 6322; United States v. Cache

Valley Bank, 866 F.2d 1242, 1244 (10 th Cir. 1989). The transfer of the attached

property “does not affect the lien because no matter into whose hands the

property goes, the property passes cum onere, or with the lien attached.” Cache

Valley, 866 F.2d at 1244-45. When the property on which the United States has

or claims a tax lien is involved in a nonjudicial sale, we have looked beyond these

general principles specifically to 26 U.S.C. § 7425(b). See Sec. Pac. Mortgage v.

Choate, 897 F.2d 1057, 1058 (10 th Cir. 1990). Section 7425(b) provides, in part,

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that such property:

shall, except as otherwise provided, be made subject to and without
disturbing such lien or title, if notice of such lien was filed or such
title recorded in the place provided by law for such filing or
recording more than 30 days before such sale and the United States is
not given notice of such sale ....

26 U.S.C. § 7425(b)(1). Another subsection of § 7425 requires notice of the sale

of such property must be provided to the Secretary of Treasury “in writing ... not

less than 25 days prior to such sale.” 26 U.S.C. § 7425(c)(1). Thus, a fair

reading of § 7425(b) and (c) establishes a federal tax lien continues to attach to

property, even in the event of a nonjudicial sale, so long as the United States

recorded a notice of lien at least thirty days before the sale and it did not receive

notice of such sale at least twenty-five days in advance.

Nevertheless, the Russells contend § 7425 does not expressly or implicitly

provide for preemption of state law. We disagree. In previously addressing the

issue of property sold in a nonjudicial sale without notice to the government as a

tax lien holder, we held “Section 7425(b) of the Internal Revenue Code dictates

the method for discharging a tax lien when the underlying property is sold.”

Security Pacific, 897 F.2d at 1058; see also Orme v. United States, 269 F.3d 991,

994 (9 th Cir. 2001) (holding § 7425(b) governs nonjudicial sales of property on

which the government claims a federal tax lien). In considering the language of

the statute, we held that “when proper notice is not given to the IRS and the

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government has complied with the filing requirements of § 7425(c), the sale of

the property is made subject to and without disturbing the tax lien or title.”

Security Pacific, 897 F.2d at 1058 (internal quotation marks and citation omitted).

Stated another way, in United States v. Colorado, 872 F.2d 338, 341 (10 th Cir.

1989), we determined that if “the senior lienholder fails to give notice of the sale

to the government, the government’s junior lien is preserved and the purchaser of

collateral takes [the] property ‘subject to’ the government’s lien.” In contrast, if

proper notice is given to the government, we have held “local law will determine

the discharge or divestment of the tax lien.” Security Pacific, 897 F.2d at 1058.

In addressing this issue in conjunction with another issue on the priority

status of a government lien, we found it necessary to look at the legislative

history of § 7425 and concluded Congress enacted § 7425(b) because it

recognized “[f]oreclosure without notice had the effect of extinguishing” the

government’s lien “under circumstances where it [was] not possible for the

[government] to take steps to protect the United States in the collection of its tax

revenues.” United States v. Colorado, 872 F.2d at 341 (quoting S. Rep. No. 89-

1708 (1966), reprinted in 1966 U.S.C.C.A.N. 3722, 3748). To the extent § 7425

is ambiguous as to Congress’s intent to preserve the government’s tax lien when

it fails to receive proper notice, the legislative history of § 7425 states:

Where foreclosures covered by this provision are made without

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 proper notice to the Government, the bill provides that this does not
affect the Government’s claim under a tax lien (as where the
Government is not joined in a judicial foreclosure). In these cases,
the Government’s claim continues against the property into the hands
of a third party. On the other hand, where notice of the
Government’s claim under a tax lien is not filed ... or where the
Government is notified of the proceeding, a sale has the same effect
on the claim as local law provides with respect to similar claims.

S. Rep. No. 89-1708 at 28 (1966), reprinted in 1966 U.S.C.C.A.N. 3722, 3749;

H.R. Rep. No. 89-1884 at 26 (1966), reprinted in 1966-2 C.B. 815, 833. Thus, it

is clear Congress intended federal law to “occupy the field” in resolving such

federal tax lien issues, resulting in our conclusion § 7425(b) “dictates the method

for discharging a tax lien when the underlying property is sold.” Security Pacific,

897 F.2d at 1058; see also Orme, 269 F.3d at 994 (concluding that in enacting

§ 7425(b), “Congress has spoken clearly on the divestiture of federal tax liens in

sales of property”).

Moreover, it is evident Colorado law is naturally preempted where notice is

not given to the government as a lien holder. This is because the remedy in Colo.

Rev. Stat. §§ 38-38-501 and 38-38-506, which requires extinguishment of the

government’s lien if it fails to redeem the property, conflicts with the remedy

provided in § 7425(b), which preserves the government’s lien. 4 Nevertheless, the

4
While we are not bound by prior district court decisions, we find
resolution of a similar issue, in Bank One v. United States, helpful in our
disposition of this case. In that case, the district court came to the same
conclusion regarding § 7425(a)(1) applying to judicial foreclosure sales because it

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Russells suggest 26 U.S.C. § 7425(d)(1), like Colo. Rev. Stat. §§ 38-38-501 and

38-38-506, requires the government to redeem the property or forfeit its lien.

However, that subsection, entitled “Redemption by United States,” simply states:

(1) Right to redeem.–In the case of a sale of real property to which
subsection (b) applies to satisfy a lien prior to that of the United
States, the Secretary may redeem such property within the period of
120 days from the date of such sale or the period allowable for
redemption under local law, whichever is longer.

26 U.S.C. § 7425(d)(1) (emphasis added). Clearly, the language permitting

redemption is permissive, and not mandatory, and to interpret it otherwise would

run contrary to Congress’s intent for the government’s tax lien to survive after a

sale without notice. Thus, redemption under § 7425(d) is simply one of the

options the government may use to enforce a lien. As previously noted, “where a

statute expressly provides a particular remedy or remedies, a court must be chary

of reading others into it.” Cuba, 527 F.3d at 1065. Thus, in conjunction with the

applicable federal statute, legislative history, and our case law, it is clear federal,

rather than state, law applies under the circumstances presented here because the

government did not receive notice after timely filing its lien.

also provides the government’s federal tax lien will not be disturbed absent
statutory notice. See 2007 WL 2350101, at **3-5 (D. Colo. Aug. 15, 2007)
(unpublished op.) (holding that under 26 U.S.C. § 7425(a)(1) a federal tax lien
remains undisturbed without further action by the government and preempts state
law because an actual conflict exists between it and Colo. Rev. Stat. § 38-38-
506(2) where “[t]here is no viable way to apply both statutes and accomplish the
full objective of the federal statute”).

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 Undaunted, the Russells rely on Security Pacific; United States v.

Colorado; and Colorado Property Acquisitions, Inc. v. United States, 894 F.2d

1173 (10th Cir. 1990), in support of their appeal, pointing out that this court

ultimately found against the government as the lien holder in those cases.

However, in both Security Pacific and United States v. Colorado, we first

determined whether the government’s lien was preserved under § 7425(b) before

we addressed the remaining issue of whether its junior lien was automatically

elevated to priority status over another senior lien holder. To that end, we held

§ 7425(b) “does not elevate the government’s lien but ‘merely preserves federal

tax liens from being extinguished through sale of the underlying collateral’ when

property is sold without notice.” Security Pacific, 897 F.2d at 1058 (quoting

United States v. Colorado, 872 F.2d at 341). Similarly, in Colorado Property

Acquisitions, we determined the senior lien holder’s lien retained priority over the

federal lien on certain property. 894 F.2d at 1176. In this case, no issue was

raised as to the junior status of the government’s lien, so the disposition of those

cases on the lien priority issue is not relevant to resolution of this appeal.

The Russells also argue state law must apply based on both 26 U.S.C.

§ 6323(a) and (f), which they contend make federal lien priorities subject to a

state’s priority scheme, and 28 U.S.C. § 2410(a) and (c), which reference both

state court jurisdiction and the laws of the situs state. We disagree. Subsections

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(a) and (f) of 26 U.S.C. § 6323 simply require lien notices to be filed in the state

in which the property is situated and are not dispositive of the preemption issue

presented here. Subsections (a) and (c) of 28 U.S.C. § 2410, regarding state court

jurisdiction and application of state law in civil actions affecting property on

which the United States has a lien, are general statements of law which do not

affect our conclusion that Congress, in enacting § 7425(b), intended federal law

to apply when the government fails to receive notice of a nonjudicial sale.

Applying our de novo review, it is evident under the facts presented that

the government filed its tax lien at least thirty days before the sale and did not

receive notice of the nonjudicial sale at least twenty-five days in advance. As a

consequence, federal law is dispositive of the issue, resulting in the government’s

tax lien remaining undisturbed and the Russells failing to state a cause of action

on which relief can be granted.

III. Conclusion

For these reasons, we REVERSE and REMAND with instructions for the

district court to vacate its decision issued on August 17, 2007, and grant judgment

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in favor of the government on its motion to dismiss, in accordance with this

decision.

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