609 F.2d 117

80-1 USTC P 9129

In the Matter of MONARCH INDUSTRIES, INC., Bankrupt.
UNITED STATES of America, Internal Revenue Service,
Plaintiff-Appellant,
v.
Richard PALMER, Trustee for Monarch Industries, Inc.,
Defendant-Appellee.

No. 79-1841
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Dec. 26, 1979.

M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Chief, Appellate Section, Crombie J. D. Garrett, Karl Schmeidler, Tax Div., Dept. of Justice, Washington, D. C. for plaintiff-appellant.

Friedman & Britton, Morton Kosto, Orlando, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before COLEMAN, Chief Judge, HILL and GARZA, Circuit Judges.

PER CURIAM:

1

The Internal Revenue Service (IRS) appeals from a judgment denying it lienor status in the estate of Monarch Industries, Inc. (taxpayer).1 Prior to the filing of taxpayer's petition in bankruptcy, the IRS assessed a deficiency and demanded payment. Apparently recognizing that the pre-petition assessment and demand, without more, perfected a lien in favor of the IRS, See I.R.C. § 6321; United States v. Speers, 382 U.S. 266, 86 S.Ct. 411, 15 L.Ed.2d 314 (1965), the district court nonetheless held that the lien was invalid as against the bankruptcy trustee because the IRS had failed to file notice of its tax lien in the proper place. I.R.C. § 6323(f)(1)(A)(ii). Respondent practically concedes that this holding was error. The notice was properly filed with the Clerk of the Florida Circuit Court as required by Fla.Stat.Ann. § 28.222(3)(e) (West 1974). The district court's decision was founded on an erroneous reference to the statutory provisions governing security interests under the Uniform Commercial Code, which have no applicability to federal tax liens.

2

The judgment of the district court is reversed with directions to enter judgment treating the claim of the United States for withholding of income taxes and FICA taxes as a perfected secured claim in bankruptcy.

3

REVERSED.

*

Fed.R.App.Proc. 34(a), 5th Cir. Local R. 18

1

Before both the bankruptcy and district courts, the IRS also attempted to prove the existence of a levy upon certain of the bankrupt's accounts receivable, Cf. United States v. Eiland, 223 F.2d 118 (4th Cir. 1955), in addition to proving a lien under I.R.C. § 6321. The IRS does not appeal from the district court's adverse resolution of the levy issue