B-99892, JANUARY 4, 1951, 30 COMP. GEN. 268

B-99892, JANUARY 4, 1951, 30 COMP. GEN. 268

LIENS - CERTIFICATES OF RELEASE - GENERAL ACCOUNTING OFFICE AUTHORITY A CERTIFICATE OF RELEASE OF LIENS OF THE UNITED STATES UPON ANY REAL OR PERSONAL PROPERTY MAY BE ISSUED BY THE COMPTROLLER GENERAL UNDER 28 U.S.C. 2410 (D) ONLY WHERE THE APPLICANT HAS A LIEN UPON THE PROPERTY, AND THEREFORE RELIEF MAY NOT BE GRANTED AN APPLICANT WHO IS THE OWNER OF THE PROPERTY RATHER THAN THE HOLDER OF A SENIOR LIEN THEREON.

COMPTROLLER GENERAL WARREN TO THE HOUSING EXPEDITER, JANUARY 4, 1951:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1950 (YOUR FILE GC 4), CONCERNING THE REQUEST APPARENTLY SUBMITTED ON BEHALF OF LOUIS JONYER FOR A CERTIFICATE OF RELEASE OF THE GOVERNMENT'S JUNIOR LIEN ON CERTAIN LAND OWNED BY HIM KNOWN AS 2036 NORTH GRATZ STREET, PHILADELPHIA, PENNSYLVANIA. THE REQUEST FOR A RELEASE WAS MADE PURSUANT TO THE PROVISIONS OF SECTION 2410 (D), TITLE 28, U.S.C., AS FOLLOWS:

WHENEVER ANY PERSON HAS A LIEN UPON ANY REAL OR PERSONAL PROPERTY, DULY RECORDED IN THE JURISDICTION IN WHICH THE PROPERTY IS LOCATED, AND A JUNIOR LIEN, OTHER THAN A TAX LIEN, IN FAVOR OF THE UNITED STATES ATTACHES TO SUCH PROPERTY, SUCH PERSON MAY MAKE A WRITTEN REQUEST TO THE OFFICER CHARGED WITH THE ADMINISTRATION OF THE LAWS IN RESPECT OF WHICH THE LIEN OF THE UNITED STATES ARISES, TO HAVE THE SAME EXTINGUISHED. IF AFTER APPROPRIATE INVESTIGATION, IT APPEARS TO SUCH OFFICER THAT THE PROCEEDS FROM THE SALE OF THE PROPERTY WOULD BE INSUFFICIENT TO WHOLLY OR PARTLY SATISFY THE LIEN OF THE UNITED STATES, OR THAT THE CLAIM OF THE UNITED STATES HAS BEEN SATISFIED OR BY LAPSE OF TIME OR OTHERWISE HAS BECOME UNENFORCEABLE, SUCH OFFICER SHALL SO REPORT TO THE COMPTROLLER GENERAL WHO MAY ISSUE A CERTIFICATE RELEASING THE PROPERTY FROM SUCH LIEN.

FROM THE FACTS AS REPORTED IN YOUR LETTER AND THE ENCLOSURE TRANSMITTED BY LETTER OF DECEMBER 6, 1950, FROM YOUR GENERAL COUNSEL, IT APPEARS THAT A GOVERNMENT LIEN IN THE AMOUNT OF $1,162 ATTACHED TO THE ABOVE REFERRED TO PROPERTY AND CERTAIN OTHER PROPERTY OWNED BY MR. JOYNER LOCATED AT 1711 NORTH 13TH STREET, PHILADELPHIA, AS THE RESULT OF A CERTAIN JUDGMENT ENTERED AGAINST THE OWNER OF SAID PROPERTY, ON MAY 5, 1950, BY THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA IN CIVIL ACTION NO. 10756. YOU STATE THAT AN AGREEMENT TO SELL THE GRATZ STREET PROPERTY FOR $3,800 WAS ENTERED INTO BY MR. JONYER SUBJECT TO SECURING RELEASES OF ALL OUTSTANDING LIENS AGAINST SAME; THAT THE PROCEEDS FROM THE SALE WILL BE USED TO PAY THE EXPENSES OF SALE, LOCAL TAXES, AND WATER RENT; THAT $2,006 OF SUCH PROCEEDS WILL BE PAID TO LEO COLEMAN, HOLDER OF A FIRST MORTGAGE, WHICH MORTGAGE, THE RECORD SHOWS, WAS RECORDED ON JULY 30, 1948; THAT THE BALANCE OF $958.88 WILL BE PAID TO THE COLLECTOR OF INTERNAL REVENUE ON ACCOUNT OF FEDERAL TAX LIENS IN THE AMOUNTS OF $6,245.14 AND $1,547.38 ENTERED OF RECORD ON NOVEMBER 28, 1947, AND JULY 30, 1948, RESPECTIVELY; AND THAT MR. JONYER WILL NOT RECEIVE ANY OF THE PROCEEDS FROM THE SALE OF THE GRATZ STREET PROPERTY.

THE RECORD SHOWS FURTHER THAT, BY LETTER OF OCTOBER 31, 1950, THE FIRM OF GINSBERG AND GINSBURG, APPARENTLY ACTING ON BEHALF OF MR. JONYER, REQUESTED THE HOUSING EXPEDITER TO RELEASE THE GOVERNMENT'S LIEN WHICH ATTACHED TO THE GRATZ STREET PROPERTY AS A RESULT OF THE ABOVE REFERRED TO JUDGMENT OF MAY 5, 1950. IT WAS STATED IN SAID LETTER OF OCTOBER 31, 1950, THAT ON AUGUST 31, 1950, FINAL SETTLEMENT UNDER THE SALE AGREEMENT REFERRED TO ABOVE WAS ARRANGED; THAT THE DISTRIBUTION OF THE PURCHASE PRICE, INCLUDING A PAYMENT OF $2,006 TO THE MORTGAGEE, WAS MADE AS SET FORTH THEREIN; AND THAT THERE IS NO MORE EQUITY IN THE PROPERTY INSOFAR AS MR. JONYER IS CONCERNED. THE RECORD INDICATES THAT, AT THE SAME TIME THE REQUEST FOR RELEASE WAS FILED ON BEHALF OF MR. JONYER, THE COLLECTOR OF INTERNAL REVENUE AT PHILADELPHIA RECEIVED AN APPLICATION FILED BY PAUL GINSBURG FOR DISCHARGE OF THE ABOVE REFERRED TO FEDERAL TAX LIENS ENTERED AGAINST THE PROPERTY OF MR. JONYER. IN THAT CONNECTION, IT IS STATED IN LETTER OF OCTOBER 31, 1950, FROM THE OFFICE OF COLLECTOR OF INTERNAL REVENUE AT PHILADELPHIA THAT, UNDER THE TERMS OF THE APPLICATION, THE NET PROCEEDS FROM THE SALE OF THE GRATZ STREET PROPERTY, OR $958.88, WOULD BE TURNED OVER TO THE GOVERNMENT IN PARTIAL SATISFACTION OF MR. JONYER'S FEDERAL TAX LIABILITY UPON RELEASE OF THE GRATZ STREET PROPERTY FROM THE FEDERAL TAX LIENS; THAT IT IS THE INTENTION OF THAT OFFICE TO APPROVE THE APPLICATION AND RELEASE OF THE GRATZ STREET PROPERTY FROM THE FEDERAL TAX LIENS UPON RECEIPT OF PAYMENT OF THE NET PROCEEDS FROM THE SALE; THAT THE FEDERAL TAX LIENS WILL REMAIN IN FORCE AND EFFECT UPON ALL OTHER PROPERTY OF MR. JONYER, INCLUDING THE PREMISES AT 1711 NORTH 13TH STREET VALUED AT $7,000; AND THAT IT IS UNDERSTOOD THAT THE SETTLEMENT FOR THE GRATZ STREET PROPERTY CANNOT BE CLOSED BECAUSE OF THE ABOVE REFERRED TO JUDGMENT AGAINST MR. JONYER ENTERED OF RECORD ON MAY 5, 1950. IN CONCLUSION, IT WAS POINTED OUT IN SAID LETTER THAT THE LATTER JUDGMENT IS SUBSEQUENT IN POINT OF TIME TO THE NOTICE OF THE FEDERAL TAX LIEN AND THE MORTGAGE, THE TOTAL AMOUNTS OF WHICH ARE CONSIDERABLY IN EXCESS OF THE VALUE OF THE GRATZ STREET PROPERTY, AND, AS INDICATED IN YOUR LETTER, IT WAS URGED THAT THE OFFICE OF THE HOUSING EXPEDITER TAKE THE NECESSARY STEPS TO REMOVE THE OBJECTIONS ON THE TITLE CERTIFICATE BY RELEASING THE GRATZ STREET PROPERTY FROM THE LIEN OF JUDGMENT ENTERED OF RECORD ON MAY 5, 1950.

THIS OFFICE HAS NO AUTHORITY TO ISSUE A CERTIFICATE OF RELEASE OF LIENS OF THE UNITED STATES UNDER THE ABOVE-QUOTED STATUTORY PROVISION EXCEPT UPON THE CONDITIONS EXPRESSLY STIPULATED THEREIN. SEE 17 COMP. GEN. 180. THE CONDITIONS EXPRESSLY STIPULATED IN THE STATUTE ARE, INTER ALIA, THAT THE APPLICANT SHALL HAVE "A LIEN" UPON THE PROPERTY, DULY RECORDED, AND THAT "A JUNIOR LIEN * * * IN FAVOR OF THE UNITED STATES ATTACHES TO SUCH PROPERTY.' IN THE PRESENT INSTANCE, INSOFAR AS CONCERNS THE APPLICATION FILED WITH YOUR OFFICE BY THE FIRM OF GINSBERG AND GINSBURG ON BEHALF OF MR. JONYER, SUCH APPLICATION DOES NOT MEET THE REQUIREMENTS OF THE STATUTE SINCE THE PRINCIPAL WAS THE OWNER OF THE PROPERTY RATHER THAN THE HOLDER OF A SENIOR LIEN THEREON. FOR SUCH REASON THE REQUEST MADE IN YOUR LETTER MUST BE DENIED ON THE PRESENT RECORD.

THE ENCLOSURES TRANSMITTED WITH THE LETTER OF DECEMBER 6, 1950, ARE RETURNED HEREWITH.