from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:17-cv-13927-George
Caram Steeh, District Judge.
Nusholtz, NEAL NUSHOLTZ, P.L.L.C., Troy, Michigan, for
I. Oppenheimer, Geoffrey J. Klimas, UNITED STATES DEPARTMENT
OF JUSTICE, Washington, D.C., for Appellee.
Before: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.
McKEAGUE, Circuit Judge.
statute of limitations for a wrongful levy action cannot
begin until there has been a levy that attaches to the
property at issue. In this case, notices of levy in 2012 did
not constitute levies on royalties generated after the
notices were served. For the reasons set forth below, the
statute of limitations does not bar Gold Forever's
wrongful levy action. Accordingly, we
REVERSE the judgment of the district court
and REMAND for further proceedings.
Forever Music, Inc. (Gold Forever) is a music publishing
company that has entered into agreements with various artists
entitling it to half of the royalties collected for the sale
and performance of those artists' work. Instead of
directly licensing third parties to use music from its
catalog, Gold Forever works with Broadcast Music, Inc. (BMI)
and Universal Music Publishing (Universal) to do so. These
companies license others to use Gold Forever's music,
collect the royalties pursuant to those licensing agreements,
and remit those royalties to Gold Forever.
Holland, Jr. is the sole owner of Gold Forever. He was a
Motown artist and has co-written several famous songs such as
"You Can't Hurry Love" by the Supremes and Phil
Collins, "Where Did Our Love Go" and "Stop In
the Name of Love" by the Supremes, "How Sweet It Is
(To Be Loved by You)" by Marvin Gaye and James Taylor,
"You Keep Me Hangin' On" by Vanilla Fudge and
Kim Wilde, "Just a Little Bit of You" by Michael
Jackson, and many more. His music forms some, but not all, of
Gold Forever's catalog. Holland owes millions of dollars
to the IRS in taxes, interest, and penalties.
2012, to collect on Holland's tax deficiency, the IRS
served two notices of levy, one to BMI and one to Universal.
The notices identified Gold Forever as the "alter
ego/nominee transferee of Edward Holland, Jr." The
notices of levy required the companies to remit to the IRS
"property and rights to property . . . that you have or
which you are already obligated to pay [Gold Forever]."
It is unclear from the complaint whether BMI and Universal
remitted any monies to the IRS between 2012 and 2016.
Beginning on October 6, 2016, through the date of the
complaint, BMI and Universal remitted a combined $967, 140.76
to the IRS. Gold Forever made requests for refunds to the IRS
within nine months of BMI and Universal remitting the funds.
December 6, 2017, Gold Forever filed a wrongful levy action
for the funds remitted beginning on October 6, 2016. Gold
Forever's complaint alleged that it has never been the
alter ego or nominee of Holland and that most, if not all, of
the money remitted by BMI and Universal belongs either to
Gold Forever or to artists other than Holland. The government
moved to dismiss Gold Forever's wrongful levy suit as
untimely, having been filed after the statute of limitations
had run. The district court agreed with the government and
granted the motion to dismiss.
review de novo the grant of a motion to dismiss, construing
the complaint in the light most favorable to the non-movant,
accepting their well-pleaded factual allegations as true, and
drawing all reasonable inferences in their favor. Jackson