539 F.

2d 935
38 A.L.R.Fed. 887, 76-2 USTC P 9554

AQUA BAR & LOUNGE, INC., Appellant,

v.
UNITED STATES of America DEPARTMENT OF
TREASURY INTERNAL
REVENUE SERVICE and Joseph B. Saltz.
No. 75-2125.

United States Court of Appeals,

Third Circuit.
Argued March 25, 1976.
Decided July 7, 1976.

Abe Lapowsky, Philadelphia, Pa., for appellant.

Robert E. J. Curran, U. S. Atty., Gary Tilles, Asst. U. S. Atty., Scott P.
Crampton, Asst. Atty. Gen., Gilbert E. Andrews, Elmer J. Kelsey, F.
Arnold Heller, Attys., Tax Div., Dept. of Justice, Washington, D. C., for
appellees.
Before SEITZ, Chief Judge, and ROSENN and GARTH, Circuit Judges.
OPINION OF THE COURT
SEITZ, Chief Judge.

This appeal raises the issue of whether a taxpayer whose property has been
seized and sold by the federal government for non-payment of federal taxes
may thereafter bring suit against the United States to quiet title to that same
property provided that he refrains from contesting the merits of the underlying
tax assessment itself.

Plaintiff, Aqua Bar & Lounge, Inc. ("plaintiff") was the owner of a restaurant
liquor license issued by the Pennsylvania Liquor Control Board. On January
16, 1975, the Internal Revenue Service ("IRS"), pursuing the non-judicial

remedies available to it, issued a notice of seizure of plaintiff's property rights

in this license pursuant to 26 U.S.C. 6331 for non-payment of federal
employment taxes. Thereafter, the IRS issued a notice of sealed bid sale of
plaintiff's property rights in the liquor license under the provisions of 26 U.S.C.
6335. The license was ultimately purchased by the defendant Joseph Saltz.
3

Plaintiff then brought this action in the district court against the United States
and Saltz seeking to have the seizure and subsequent sale of its license declared
null and void on the grounds: (1) that the IRS had no power to seize the license
under 6331; and (2) that the IRS had failed to comply with the procedures for
sale set forth in 6335. In addition, it requested a preliminary injunction
restraining Saltz from petitioning the Pennsylvania Liquor Control Board to
transfer the license from the plaintiff to himself. However, the plaintiff did not
challenge the validity of the underlying tax assessment whose nonpayment had
resulted in the seizure and sale of its property.

Upon motion of the United States, the district court denied plaintiff's motion
for a preliminary injunction and dismissed its complaint as against both the
government and Saltz for lack of jurisdiction. The court reasoned that the
complaint sought, in essence, a declaratory judgment "with respect to Federal
taxes" which the court had no power to grant under the Declaratory Judgment
Act, 28 U.S.C. 2201. In addition, the court determined that the instant action
was barred by the Anti-Injunction Act, 26 U.S.C. 7421(a), which prohibits a
suit seeking to restrain "the assessment or collection of any tax." Finally, apart
from the Declaratory Judgment and Anti-Injunction Acts, the court held that
the suit could not be maintained because the United States had not waived its
sovereign immunity with respect to it. This appeal followed.

Characterizing its suit as one to quiet title to property on which the United
States has a lien, plaintiff asserts that the district court had jurisdiction to hear
this action under 28 U.S.C. 1340 in combination with28 U.S.C. 2410(a)(1).
Section 1340 of the Judicial Code grants the federal district courts "original
jurisdiction of any civil action arising under any Act of Congress providing for
internal revenue." Clearly, a suit which contests the validity of a federal tax lien
and sale falls within its terms. See United States v. Coson, 286 F.2d 453, 45556 (9th Cir. 1961). This general grant of jurisdiction does not, as plaintiff
recognizes, constitute a waiver of sovereign immunity by the United States.
Quinn v. Hook, 231 F.Supp. 718 (E.D. Pa.1964), aff'd 341 F.2d 920 (3d Cir.
1965). However, plaintiff argues that the required waiver is found in 2410(a)
(1) which provides that the United States may be named as a party in any civil
action "to quiet title to . . . real or personal property on which the United States
has or claims a mortgage or other lien." Finally, plaintiff maintains that neither

the Anti-Injunction Act nor the Declaratory Judgement Act operates to deprive
a federal court of its jurisdiction under 1340 and 2410 when the taxpayer
involved merely challenges the validity of a tax lien for failure to comply with
statutory requirements and refrains from contesting the merits of the underlying
tax assessment itself.
6

The government agrees that 1340 is a possible jurisdictional basis for this
action. However, it maintains, and the district court found, that even assuming
that this suit may be treated as an action to quiet title, 2410(a) (1) does not lift
the bar of sovereign immunity in cases where a taxpayer whose property has
been seized, as opposed to a third party who claims an interest in that property,
brings suit against the United States. In addition, it contends that the district
court correctly determined that both the Anti-Injunction and Declaratory
Judgment Acts prohibit this suit.

We turn first to the question of whether, based on the allegations contained in

the complaint, this suit may be treated as an action to quiet title to property on
which the United States has a lien. We think that this question must be
answered in the affirmative.1 At the time of the proceedings below, title to the
license remained in plaintiff's name on the records of the Pennsylvania Liquor
Control Board. In addition, neither the IRS nor Saltz had obtained physical
possession of the license document as it remained for safekeeping in the Liquor
Control Board's offices in Harrisburg. Certainly, both the tax lien asserted by
the government and the sale of the license to Saltz, if indeed invalid, would cast
clouds on the title to the license. See Little River Farms, Inc. v. United States,
328 F.Supp. 476 (N.D. Ga.1971). An action to quiet title is the proper method
of removing such clouds on title. United States v. Coson, supra at 457.

Our conclusion in this regard is not undermined by the fact that the license is
personal rather than real property. Although suits to quiet title have traditionally
involved real property, this particular action is governed by federal rather than
state law. And, the relevant federal statute, 2410, contemplates, by its very
terms, actions to quiet title to personalty on which the United States has or
claims a lien. Little River Farms, Inc. v. United States, supra at 479; Yannicelli
v. Nash, 354 F.Supp. 143 (D.N.J.1973).

Having determined that this suit may be properly viewed as an action to quiet
title, we turn to the crucial issue of whether a taxpayer whose property is
subjected to a federal tax lien may bring suit against the United States under
2410(a)(1). Plaintiff concedes that an action which collaterally assails the
merits of the underlying tax assessment will not lie under the statute. Quinn v.
Hook, supra. However, it maintains that this statute waives sovereign immunity

without regard to the plaintiff's status when the action contests only the validity
of a tax lien and sale for failure to comply with statutory requirements. In this
regard, it points out that the language of 2410 does not limit its availability to
parties other than the taxpayer whose property is involved. In addition, it
contends that any construction of 2410 which prohibits a taxpayer from
bringing suit thereunder would deprive him of any remedy against the
government for the illegal seizure and sale of his property.
10

The government, on the other hand, vigorously maintains that both the
legislative history of 2410 and the weight of the case law construing it
demonstrate that it was intended to waive sovereign immunity only in suits
brought by third parties claiming ownership or an interest in the property
belonging to the taxpayer. Moreover, it argues that any other interpretation
would upset the comprehensive and inter-related system of administrative and
judicial remedies for collecting taxes and resolving an individual's tax liability.

11

After examination, we do not believe that plaintiff's interpretation of 2410(a)

(1) is foreclosed by the statute's legislative history as the government suggests.
The quiet title provision of 2410 was added to the statute in 1942. To be sure,
in explaining the amendment's purpose to Congress, the Attorney General, later
Mr. Justice Jackson, did not include taxpayers among the prospective plaintiffs
who he felt might utilize the provision. H.Rep.No.1191, 77th Cong., 1st Sess.,
p. 2; S.Rep.No.1646, 77th Cong., 2d Sess., p. 2. However, we do not read his
brief remarks to exhaust all the possibilities under the statute's rather broad
language. Moreover, we note that the legislative history surrounding the most
recent revision of 2410, contained in the Federal Tax Lien Act of 1966,
makes no mention of any such limitation to third parties although the history of
certain other provisions of that Act specifically limit their applicability to
parties other than the taxpayer involved. 1966 U.S.Code Cong. &
Admin.News, p. 3722 et seq. Under these circumstances, we think it best to
look to the specific language Congress chose to enact rather than the
draftsman's illustrations. See, e. g., Schwegmann Bros. v. Calvert, 341 U.S.
384, 395, 71 S.Ct. 745, 95 L.Ed. 1035 (1951) (Jackson, J., concurring). And
that language does not preclude a taxpayer from availing himself of 2410.

12

Nor do we find that the weight of the case law in this area supports the
government's position. Nearly every case cited by the government involved a
taxpayer's attempt to utilize 2410 to challenge the merits of the tax
assessment underlying the lien.2 E.g., Falik v. United States, 343 F.2d 38 (2d
Cir. 1965); Quinn v. Hook, supra. To be sure, these cases have uniformly held
that a taxpayer may not mount a collateral attack on the merits of the tax
assessment under 2410. However, we believe that those decisions are

distinguishable from the instant case both on their facts and in terms of the
policies on which they were premised.
13

The leading case relied on by the government, Falik v. United States, is

illustrative. There a taxpayer brought suit against the United States to remove a
tax lien on her home. The taxpayer contended that the lien was invalid because
the unpaid taxes on which it was based had been wrongfully assessed against
her. In finding that no such challenge could be maintained under 2410, Judge
Friendly reasoned that Congress could not have intended to extend to taxpayers
a new remedy by which they could contest their tax liability through this
addition to the Judicial Code. Rather, he held that the taxpayer's exclusive
remedies were to either contest the deficiency in the Tax Court or pay the
assessment and thereafter bring suit in the district court for a refund. See also
Quinn v. Hook, supra. However, he at no time determined that a taxpayer could
not utilize 2410 under any circumstances. Indeed, a close reading of his
opinion suggests that a taxpayer could maintain an action under 2410 if he
limits his challenge to the procedural regularity of the lien. 343 F.2d at 42.

14

The rationale of Falik and similar cases thus has no application where, as here,
the taxpayer questions only the legality of the procedures used to enforce a tax
lien and not the validity of the tax assessment itself. When his challenge is so
limited, the taxpayer makes no attempt to circumvent

15 long standing principle that, except as provided in (26 U.S.C.) 6213 with
"the
respect to review of determinations of deficiencies in income, gift and estate tax by
the Tax Court, a person whose sole claim is that a federal tax assessment was not
well grounded in fact and law must 'pay first and litigate later.' " Falik, 343 F.2d at
42.
16

Indeed, the remedies found exclusive in Falik offer no recourse at all to the
aggrieved taxpayer who, as plaintiff here, admits that the assessed taxes are
due. Moreover, since the validity of the tax assessment is not put in issue, we
fail to see how a decision permitting a taxpayer to bring suit under these
circumstances will undermine the established administrative and judicial
framework for resolving an individual's tax liability. Three of the four courts
which have recently confronted the same issue now before us have recognized
these distinctions and permitted the taxpayer to bring suit under 2410. Popp v.
Eberlien, 409 F.2d 309 (7th Cir. 1969), cert. denied, 396 U.S. 909, 90 S.Ct.
222, 24 L.Ed.2d 185 (1969); Little River Farms, Inc. v. United States, supra;
Yancelli v. Nash, supra.

17

Not only are we unpersuaded by the government's arguments for prohibiting a

taxpayer from bringing a properly limited suit against the United States under
2410, we also find strong policy reasons for permitting such an action. The
inviolability of private ownership has long been a fundamental principle of our
nation's jurisprudence. See Thatcher v. Powell, 6 Wheat. 119, 125, 5 L.Ed. 221
(1821). In recognition of this principle, Congress has imposed precise strictures
on the seizure and sale of an individual's property by the IRS to satisfy
legitimate tax deficiencies. These provisions, which the plaintiff contends were
not complied with in the instant case, are for the obvious protection of the
taxpayer faced with the loss of his property. Reece v. Scoggins, 506 F.2d 967,
971 (5th Cir. 1975). Yet, if 2410 is construed to lift the barrier of sovereign
immunity only to actions brought by parties other than the taxpayer whose
property is at stake, the taxpayer would have no available means of enforcing
compliance with the procedures enacted for his benefit. In the absence of a
Congressional directive to the contrary, we refuse to place such a narrowing
construction on 2410 and thus deprive a taxpayer of any remedy against
arbitrary administrative action.
18

We therefore hold that 2410 constitutes a waiver of sovereign immunity to a

suit brought by a taxpayer against the United States which challenges the
validity of a federal tax lien and sale so long as the taxpayer refrains from
contesting the merits of the underlying tax assessment itself. The district court
thus had jurisdiction to hear this action under that provision in combination
with 28 U.S.C. 1340.

19

Finally, in our view neither the Declaratory Judgment Act nor the AntiInjunction Act operates to deprive the district court of the jurisdiction it would
otherwise have to resolve this matter. Admittedly, any challenge to the validity
of a federal tax lien and sale indirectly interferes with the tax collection process
which those statutes are designed to protect from undue litigation outside the
Tax Court. However, when a taxpayer refrains from contesting the merits of the
underlying tax assessment, his attack on a federal tax lien and sale under 2410
does not cause any greater interference with the tax collection process than a
similar suit brought by a third party under that statute. Quite obviously, the
Declaratory Judgment Act poses no barrier to a suit by a third party to clear his
property of a federal tax lien since the quiet title action specifically mandated
by 2410 is in substance a suit for a declaratory judgment. Likewise, the AntiInjunction Act has been interpreted so as not to prohibit such third party suits.
United States v. Coson, supra at 458-59. We see no reason in policy or logic to
treat an action brought by a taxpayer in a different manner. Yancelli v. Nash,
supra. We therefore conclude that both the Declaratory Judgment and the AntiInjunction Acts are inapplicable in the circumstances of this case.

20

The judgment of the district court will be vacated and this case remanded for
further proceedings not inconsistent with this opinion.
GARTH, Circuit Judge (concurring):

21

I agree that the judgment of the district court must be vacated and the case
remanded for further proceedings. However, I believe the majority's reliance
upon 28 U.S.C. 2410(a)(1) as a waiver of sovereign immunity is at odds with
both the explicit provisions of the statute as well as its legislative history.
Consequently, I would hold that the elaborate and detailed seizure and sale
provisions of the Internal Revenue Code, 26 U.S.C. 6331, 6335, of necessity
provide an implied waiver of immunity where it is alleged that the Internal
Revenue Service (IRS) has failed to comply with these Congressional mandated
directives.

22

This Circuit has long recognized in the context of suits commenced under 28
U.S.C. 1340,1 that without a waiver of sovereign immunity, "(i)t is, of course,
clear and undisputed that (a) suit against the United States is not maintainable .
. . ." First Nat'l Bank of Emlenton, Pa. v. United States, 265 F.2d 297, 299 (3d
Cir. 1959). Although the United States has consented to be sued under 28
U.S.C. 2410(a)(1), that statute in my opinion, does not apply to the facts
presented here. Under 2410(a)(1),

.23. . the United States may be named a party in any civil action or suit in any district
court, or in any State court having jurisdiction of the subject matter
24 to quiet title to, . . . real or personal property on which the United States has or
(1)
claims a mortgage or other lien. (Emphasis added.)
25

Aqua Bar & Lounge, Inc. (Aqua Bar) has sought a declaration that the seizure
and sale of its liquor license by the defendant United States was unlawful under
26 U.S.C. 6331, 6335.2 The uncontested allegations of the complaint
indicate that at the time this suit commenced the IRS sale of the license to
defendant Saltz had already been consummated. Thus, it is quite clear to me
that where the United States has seized and then sold the plaintiff's liquor
license there can be property "on which the United States has or claims a
mortgage or other lien." (Emphasis added.) 28 U.S.C. 2410(a)(1).

26

Moreover, the legislative history of 2410(a)(1) indicates that it is inapplicable

to the situation presented here. In Quinn v. Hook, 231 F.Supp. 718, 720
(E.D.Pa.1964), aff'd 341 F.2d 920 (3d Cir. 1965), District Judge Freedman,

after examining the legislative history of 2410, explained:

By
27 this provision the Government has consented to be sued "in any civil action or
suit in any district court, or in any State court having jurisdiction of the subject
matter, to quiet title to or for the foreclosure of a mortgage or other lien upon real or
personal property on which the United States has or claims a mortgage or other
lien." It was not until 1942 that the remedy of quieting title was added to the statute
which theretofore had dealt only with the foreclosure of a mortgage or other lien on
property on which the United States had or claimed a mortgage or other lien. The
purpose of the amendment, as clearly stated in the House and Senate reports, "is to
permit the United States to be made a party defendant in cases involving foreclosure
of mortgages or liens on personal property and to provide a method to clear real
estate titles of questionable or valueless Government liens." Its passage was
recommended by Attorney General Jackson in order to protect good faith purchasers
of real estate and foreclosing mortgagees. (Footnotes omitted.)
28

See also United States v. Coson, 286 F.2d 453, 457 (9th Cir. 1961). Quinn
involved an attack upon the merits of a tax assessment, and not upon the seizure
and sale of any property. However, the discussion of the legislative history in
Quinn conflicts with the conclusion reached by the majority here.3 Nothing in
the words of the statute or the legislative history indicates that 2410(a)(1),
which only serves the purpose of providing a vehicle to quiet title of property
where the United States has or claims a lien or mortgage, is applicable where an
attack has been made upon the seizure and sale of property.

29

Nor are any of the cases cited by the majority convincing as to the availability
of 2410(a)(1) in the circumstances presented here. Popp v, Eberlain, 409 F.2d
309 (7th Cir.), cert. denied, 396 U.S. 909, 90 S.Ct. 222, 24 L.Ed.2d 185 (1969),
involved a suit against certain individuals and the United States to set aside
various tax sales of real property. The district court found a waiver of immunity
as to the United States in 28 U.S.C. 2410, "on the theory that the action was
in the nature of an action to quiet title." 409 F.2d at 312. The Seventh Circuit, "
(a)lthough beset by serious doubt," agreed that the district court had properly
determined that immunity had been waived. However, it did not set forth any
basis or analysis to support its conclusion. Id. Thereafter, in Little River Farms,
Inc. v. United States, 328 F.Supp. 476 (N.D.Ga.1971), the district court relying
upon Popp, supra, found that the validity of a tax sale under 26 U.S.C. 6335
could be challenged under 28 U.S.C. 2410. The court explained its decision as
follows:

30 the Court views the situation, the taxpayer has a right under 6335 but no
As
remedy for enforcing it except 2410.

31

328 F.Supp. at 479. Thus, neither Popp nor Little River Farms offers any
reasoning in support of the conclusion reached.

32

While I sympathize with the majority's efforts to fashion a remedy which would
correct an otherwise outrageous result, I, nevertheless, cannot join the majority
in artificially bending and straining the unambiguous words and legislative
history of 2410(a)(1) so as to allow suits against the United States for seizures
and sales of property in violation of the Code. At issue here are two
fundamental rights: the inviolability of the private ownership of property and
the government's entitlement to ensure the collection of its taxes. Chief Justice
Marshall, writing for the Supreme Court in 1821, stated with respect to
government sale of private property:

33 no individual or public officer can sell, and convey a good title to, the land of
That
another, unless authorized so to do by express law, is one of those self-evident
propositions to which the mind assents, without hesitation; and that the person
invested with such a power must pursue with precision the course prescribed by law,
or his act is invalid, is a principle which has been repeatedly recognized in this court.
34

Thatcher v. Powell, 19 U.S. (6 Wheat.) 54, 56, 5 L.Ed. 221 (1821), quoted in
Reece v. Scoggins, 506 F.2d 967, 971 (5th Cir. 1975). Congress has mandated
elaborate procedures to be followed by the IRS in the levy, distraint, and sale of
property to satisfy a tax lien. These requirements serve to safeguard the value of
property seized and "are designed to protect the taxpayer by giving him an
opportunity to be present at the tax sale and bid on the property." Reece v.
Scoggins, supra at 971.

35

Since no sections of the Internal Revenue Code explicitly waive sovereign

immunity where it is alleged that the IRS has violated the seizure and sale
provisions, the United States contends that Aqua Bar's suit must be dismissed.
It would appear axiomatic that whenever Congress directs in an unambiguous,
detailed manner prescribed, protective procedures to be taken by a government
agency, but fails to provide either sanctions or a method of enforcement in the
event its mandate is ignored, a waiver of sovereign immunity necessarily must
be inferred in order to enforce the legislative will. If it were otherwise,
Congressional mandates such as the provisions of 6331, 6335 could be
treated not as obligatory but rather as mere recommendations which the Internal
Revenue Service could violate negligently or intentionally behind a shield of
sovereign immunity. Neither logic nor reason should permit such a result. In
light of the explicit provisions and mandatory terms of 6331, 6335, I would
imply a waiver of sovereign immunity where a complaint, the allegations of
which must be accepted as true,4 challenges only the validity of the seizure and

sale under those statutes.

36

Similarly, I do not believe that 28 U.S.C. 2201 prevents any declaratory

judgment action against the United States. That section provides:In a case of
actual controversy within its jurisdiction, except with respect to Federal taxes,
any court of the United States . . . may declare the rights and other legal
relations of any interested party seeking such declaration, whether or not further
relief is or could be sought. (Emphasis added.)

37

At issue here is whether the Internal Revenue Service complied with the
provisions of the Code in the seizure and sale of Aqua Bar's license. No
question is presented concerning the validity of the tax assessment. Thus I
would conclude that this suit is not one "with respect to Federal taxes" under 28
U.S.C. 2201.

38

Aqua Bar's complaint also seeks injunctive relief against defendant Saltz, the
purchaser of its license. The district court held that the Anti-Injunction Statute,
26 U.S.C. 7421(a), divested it of power to enjoin Saltz's application for a
transfer of the liquor license to his name. Like the majority I do not agree with
that conclusion.

39

Section 7421(a) provides, except in certain special circumstances that are not
relevant here, that

.40. . no suit for the purpose of restraining the assessment or collection of any tax shall
be maintained in any court by any person, whether or not such person is the person
against whom such tax was assessed.
41

The Supreme Court has stated with respect to the Anti-Injunction Statute:

42 manifest purpose of 7421(a) is to permit the United States to assess and

The
collect taxes alleged to be due without judicial intervention, and to require that the
legal right to the disputed sums be determined in a suit for refund. In this manner the
United States is assured of prompt collection of its lawful revenue. (Footnote
omitted.)
43

Enochs v. Williams Packing Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 1129, 8 L.Ed.2d
292 (1962). However, Aqua Bar does not dispute the tax assessment. Rather,
Aqua Bar seeks to enjoin the transfer of the liquor license which allegedly was
improperly seized and sold in violation of the Internal Revenue Code. Since
such an injunction does not seek to attack the tax assessment itself, I would hold

that this is not a suit "for the purpose of restraining the assessment or collection
of any tax" but merely an action to enforce IRS compliance with Congressional
mandates. Reece v. Scoggins, supra. See also Margiotta v. District Director of
Internal Revenue, 214 F.2d 518 (2d Cir. 1954).
44

Consequently, even though I do so on different grounds, I concur in the

majority's decision to vacate the district court's order and remand for further
proceedings.

The government has suggested that this suit may not be viewed as an action to
quiet title because the plaintiff no longer possessed any title or interest in the
license at the inception of this litigation. However, since the district court did
not address this contention, we believe that the issue is more appropriate for
resolution by the district court upon remand

The sole exception, Fidler v. United States, 29 A.F.T.R.2d 1364

(N.D.N.Y.1972), is based on what we believe to be an erroneous interpretation
of Falik v. United States, 343 F.2d 38 (2d Cir. 1965)

28 U.S.C. 1340 provides in pertinent part:

The district courts shall have original jurisdiction of any civil action arising
under any Act of Congress providing for internal revenue . . . .

Section 6331 provides for a levy and distraint to effect the collection of taxes.
Section 6335 describes the manner in which the seizure and sale of such
property is to be conducted. In pertinent part 6335 requires:
(a) . . . As soon as practicable after seizure of property, notice in writing shall be
given by the Secretary . . . . Such notice shall specify the sum demanded and
shall contain, in the case of personal property, an account of the property seized
....
(b) . . . The Secretary . . . shall as soon as practicable after the seizure of the
property give notice to the owner, . . . and shall cause a notification to be
published in some newspaper published or generally circulated within the
county wherein such seizure is made, or . . . post such notice at the post office
nearest the place where the seizure is made, and in not less than two other
public places. Such notice shall specify the property to be sold, and the time,
place, manner, and conditions of the sale thereof.
(d) . . . The time of sale shall not be less than 10 days nor more than 40 days

from the time of giving public notice under subsection (b). . . .

(e) Manner and conditions of sale.
(1) . . . Before the sale the Secretary . . . shall determine a minimum price for
which the property shall be sold, and if no person offers for such property at the
sale the amount of the minimum price, the property shall be declared to be
purchased at such price for the United States; . . .
(2) . . . The Secretary . . . shall by regulations prescribe the manner and other
conditions of the sale of property seized by levy. . . . Such regulations shall
provide:
(A) That the sale shall not be conducted in any manner other than
(i) by public auction, or
(ii) by public sale under sealed bids.
(D) Whether payment in full shall be required at the time of acceptance of a bid
....
3

This Court, in a per curiam opinion, affirmed the district court's judgment in
Quinn "for the reasons so well stated by Judge Freedman in his opinion
reported at 231 F.Supp. 718 (E.D.Pa.1964)."

The allegations of Aqua Bar's complaint must be accepted as true for purposes
of considering a motion to dismiss under Rule 12(b), Fed.R.Civ.P. Hochman v.
Board of Education, 534 F.2d 1094 (3d Cir. 1976)