In re: USA v. Lawrence Warfield

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 3 2024

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

In re: ALBERT G. FREEMAN, Jr.; No. 23-15827 DEANNA L. FREEMAN,

D.C. No. 3:21-cv-08274-DJH Debtors.

______________________________

MEMORANDUM* UNITED STATES OF AMERICA,

Appellant, v. LAWRENCE J. WARFIELD, Chapter 7 Trustee,

Appellee.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding Argued and Submitted May 17, 2024 Phoenix, Arizona

Before: GRABER, DESAI, and DE ALBA, Circuit Judges.

The Internal Revenue Service (IRS) appeals the allocation of proceeds from the sale of real property between the IRS and the Bankruptcy Estate on a pro rata basis, where the IRS held a valid tax lien that included debts for taxes and related penalties and that exceeded the value of the encumbered property. The Trustee avoided the penalty portion of the tax lien under 11 U.S.C. § 724(a), which was automatically preserved pursuant to 11 U.S.C. § 551. The value of the tax portion was $256,669.98, the value of the penalty portion was $106,645.16, but the net sale proceeds were $218,917.19.

The parties identified this case as related to United States v. Mackenzie, No. 23-15825, pursuant to Circuit Rule 28-2.6. Because the cases raise the same legal issues, we consolidated them for purposes of oral argument. We have jurisdiction under 28 U.S.C. § 158(d)(1).

In light of our opinion in Mackenzie, decided this date, we reverse judgment in this case. The available proceeds shall be distributed under a “tax-first” method, consistent with Mackenzie.

REVERSED and REMANDED.