Simonson

This appeal is taken by the trustee of a bankrupt estate from the judgment of the District Court affirming an order of the Referee in Bankruptcy which allowed the United States a lien claim against the bankrupt estate in the sum of $1,442.41 for penalties on unpaid federal taxes.

Two questions are presented by this appeal.

The first question concerns the significance of the fact that although the lien of the United States arose prior to the filing of a petition in bankruptcy, notice of such lien was not filed until after the filing of the petition in bankruptcy. The trustee contends that under § 6323 of the Internal Revenue Code of 1954, 26 U.S.C. § 6323 , the lien of the United States under these circumstances is invalid.

*490 Section 6323 provides that the tax lien of the United States “shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof' has been filed” in certain specified public offices.

Section 70 of the Bankruptcy Act, 11 U.S.C.A. § 110 , provides in part:

The trustee contends that under § 70 he is by operation of law made a judgment creditor of the bankrupt; that under § 6323 of the Internal Revenue Code, as a…

(concurring) .

Under section 6323(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 6323 (a), a tax lien of the United States is not valid against a “judgment creditor” until notice thereof has been filed. The notice of the lien here in question *491 was not filed until after the bankrupt’s property came into the possession or control of the bankruptcy court. Thus, if the trustee stands in the position of a judgment creditor within the meaning of section 6323, the lien is not valid as to the trustee.

Under section 70(c) of the Bankruptcy Act, 11 U.S.C.A. § 110 (c), a trustee in bankruptcy is deemed to be vested as of the date particular property comes into the possession or control of the court, with “all the rights, remedies, and powers of a creditor then holding a lien thereon by such proceedings, whether or not such a creditor actually exists.” In my view this statute states as clearly as words can speak that a trustee is to be treated as if he were a judgment creditor, although obviously he is not one.

As pointed out in the majority opinion, several courts, including this one, have denied the trustee this section 70(c) status. They have done so because in United States…