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Court of Appeal, Second District, Division 4, California.

BUSINESS TITLE CORPORATION, Plaintiff, v. DIVISION OF LABOR LAW ENFORCEMENT, State of California, et al., Defendants and Appellants, United States of America, Defendant and Respondent.

Civ. 44420.

Decided: October 14, 1975

Lazar, Friedman, Stahl & Jabin, Evelle J. Younger, Atty. Gen., and Thomas Scheerer, Deputy Atty. Gen., for defendant and appellant Div. of Labor Law Enforcement, State of Cal. Denison & Kightlinger and John P. Kightlinger, Los Angeles, for defendant and appellant Los Angeles Hotel-Restaurant Employer-Union Welfare Fund. Lipsig, Rosenfield, Temkin & Leff and Robert G. Leff, Beverly Hills, for defendant and appellant William H. Temkin, Jr. Scott P. Crampton, Asst. U. S. Atty. Gen., Gilbert E. Andrews, Crombie J. D. Garrett and Stephen M. Gelber, Attys., Tax Div., Dept. of Justice, William D. Keller, U. S. Atty., and Charles H. Magnuson, Asst. U. S. Atty., for defendant and respondent. Coulter, Vernoff & Brewer and George P. Coulter, Pasadena, as amicus curiae for plaintiff, and for Gramercy Escrow Company, Grover Escrow Corporation, Professional Escrow Services and Service Escrow Co.

Three defendants appeal from a judgment in an interpleader action.1 The action was commenced in the superior court for Los Angeles County by Business Title Corporation against the United States,2 the Division of Labor Law Enforcement of the State of California, the Los Angeles Hotel-Restaurant Employer-Union Welfare Fund (hereinafter ‘Union Welfare Fund’), Mating Game, Inc.,3 William Temkin, Sanford Orling and Peter Rooney.

The verified complaint alleged: On October 6, 1971, at Los Angeles, Mating Game, Inc., entered into a written escrow agreement with 12319 Corporation whereby Mating Game agreed to sell to 12319 Corporation an on-sale general liquor license for a cocktail lounge business, with the license to remain at the business premises; pursuant to Bus. & Prof.Code § 24074, buyer and seller opened an escrow, and plaintiff was named as escrow holder; the total purchase price of the liquor license was $10,500.00, which sum was deposited in escrow by the buyer prior to transfer of the license; during the course of the escrow, and before May 24, 1972 (when the Department of Alcoholic Beverage Control notified plaintiff of transfer of the license to the buyer), plaintiff received claims from the seller's creditors, including the defendants; defendant United States served on plaintiff a notice of levy and a notice of federal taxes due in the sum of $3,329.89 on account of tax delinquencies of the seller; defendants Division of Labor Law Enforcement, Union Welfare Fund, Temkin, Orling and Rooney presented claims totaling $8,171.04 for wages due the seller's employees; the State Board of Equalization and the Department of Human Resources Development presented claims totaling $2,328.96; as these latter claims must be paid to accomplish transfer of the license, plaintiff paid them from the funds on deposit in escrow; after transfer of the license, plaintiff mailed notices to the creditors informing them that the cash in escrow was insufficient to pay all creditors in full.

The complaint further alleged: plaintiff holds in escrow the sum of $8,141.04, which represents the purchase price of $10,500.00 less payment of $2,328.96 to the priority creditors, and less $30.00 paid as attorney's fees for a legal opinion regarding the proper placement of creditors' claims under § 24074; plaintiff claims no right, title or interest in or to the cash in escrow, except to recover its costs and attorney's fees incurred in the interpleader action; plaintiff is subject to conflicting claims to the fund in escrow by the United States and by the other defendants, whose wage claims are given first priority under § 24074.

Plaintiff sought judgment requiring defendants to interplead and litigate among themselves their respective rights to the case in escrow; plaintiff also sought attorney's fees and costs.

Each of the defendants filed an answer to the complaint. The United States mover for summary judgment in its favor for the amount of federal tax owing by the seller. Affidavits in support of the motion were filed showing that such tax was assessed on September 24, 1971, and that notice of the resulting federal tax lien was filed with the Los Angeles County Recorder,, and with the California Secretary of State, on October 21, 1971.

Plaintiff moved for an order dismissing it from the action upon deposit in court of the escrowed fund of $8,141,04, and for an order allowing plaintiff to deduct from such fund the sum of $642.00 as attorney's fees and costs incurred in prosecuting the interpleader action. (Code Civ.Proc. § 386.6, subd. (a).) From the fund in escrow, the trial court granted plaintiff $400.00 as attorney's fees and $42.00 as costs ‘without prejudice to later determination as to whose interest ultimately to bear said costs.’ Plaintiff was ordered to deposit $7,699.04 (the balance of the fund remaining after deduction of the attorney's fees and the sum allowed for costs) with the clerk of the court. The court further ordered that plaintiff be dismissed from the action upon making such deposit.

Prior to the hearing of the United States' motion for summary judgment, all of the interpleaded defendants entered into the following stipulation of facts: after escrow was opened on October 6, 1971, for the transfer of Mating Game's liquor license, the following wage claims were submitted to plaintiff by defendants: October 15, 1971, claim of Union Welfare Fund for $1,650.00; January 18, 1972, claim of Division of Labor Law Enforcement for $1,418.85; May 5, 1972, claim of Temkin for $3,952.19, claim of Orling for $575.00 and claim of Rooney for $575.00; on June 13, 1972, the United States served on plaintiff a notice of levy for federal taxes due from Mating Game, Inc., in the total amount of $3,329.89;4 on the same date, the United States also served on plaintiff a ‘Notice of Federal Taxes Due’ and a ‘Final Demand.’ each in the amount of $3,329.89.

The trial court granted the motion for summary judgment, directing the clerk to pay to the United States from the interpleaded fund, the sum of $3,170.88 plus interest and penalties. The court further ordered that the attorney's fees and costs awarded to plaintiff were not to be apportioned against the sum payable to the United States.

Thereafter, defendants Temkin, Orling and Rooney moved for summary judgment disposing of the balance of the interpleaded fund. The trial court granted the motion ‘as to wage claim defendants,’ and ordered that, after payment of the tax lien of the United States and the costs of interpleader, the remaining funds were to be apportioned among the wage claimants in the proportion that each claim bore to the total wage claims.

Findings of fact and conclusions of law were signed and filed.5 The trial court found, as facts: plaintiff deposited into the registry of the court the sum of $7,699.04; such interpleaded fund is insufficient to pay the claims asserted against it by defendants; on September 24, 1971, a delegate of the Secretary of the Treasury made an assessment against Mating Game, Inc., for withholding and federal insurance contribution taxes in the sum of $2,889.77, plus: delinquency penalty, $144.49; failure to deposit penalty, $96.32; failure to pay penalty, $14.45; and interest, $25.85, for a total assessment of $3,170.88; in addition to this sum, defendant United States is entitled to accrued interest of $349.66, as of August 1, 1973, on the principal amount of tax assessed, for a total of $3,520.54, with interest to continue accruing after August 1, 1973,6 at the rate of 52 cents per day; notice of the assessment and demand for payment were sent to Mating Game, Inc., on September 24, 1971; notice of federal tax lien (which arose upon assessment7 ) was filed with the recorder for Los Angeles County, and with the California Secretary of State, on October 21, 1971; by virtue of the assessment, Mating Game, Inc., is indebted to the United States in the sum of $3,170.88, plus accrued interest; defendant Division of Labor Law Enforcement has a wage claim of $1,418.85 against the interpleaded fund and is entitled to 17.36 percent of the sum remaining after payment of the claim of the United States; defendant Union Welfare Fund has a claim of $1,650.00 against the fund, and is entitled to 20.19 percent of the sum remaining after payment of the claim of the United States; defendants Temkin, Orling and Rooney have claims of $3,952.19, $575.00 and $575.00, respectively, against the fund for a total of $5,102.19, and such defendants are entitled collectively to 62.45 percent of the fund remaining after payment of the claim of the United States.

As conclusions of law, the court determined: the claims of defendants Division of Labor Law Enforcement, Union Welfare Fund, Temkin, Orling and Rooney are wage claims having first priority under Bus. & Prof. Code § 24074; the Twenty-first Amendment of the United States Constitution is not applicable in this case; accordingly, under the Supremacy Clause (art. VI) of the United States Constitution, the priority accorded a tax lien of the United States under 26 U.S.C. §§ 6321 and 6323, subd. (a), prevails over any priority set forth in Bus. & Prof. Code § 24074; the lien of the United States for unpaid taxes and interest therefore must be paid from the interpleaded fund before the claims of the other defendants are paid; the attorney's fees and costs awarded to plaintiff may not be allocated against the recovery of the United States, but have priority over the wage claims.

Judgment was entered awarding the United States, out of the interpleaded fund, the sum of $3,520.54, plus interest accruing on such sum after August 1, 1973,8 at the rate of 52 cents per day. Of the fund remaining after payment to the United States, the judgment awarded to the wage claimants the respective percentages set forth in the findings of fact.9

Defendants Division of Labor Law Enforcement, Union Welfare Fund and Temkin appeal from the judgment contending that the payment of claims, as provided in Business & Professions Code section 24074,10 is a condition upon the transfer of a liquor license which is solely a creature of state law, and that under the system which the state has created, until labor claims were satisfied, no property passed to Mating Game, Inc., to which the tax lien could attach.

Appellants contend that section 24074 was enacted pursuant to the power, granted to the states by the Twenty-first Amendment of the Constitution of the United States, to regulate and control the use, distribution and consumption of alcoholic beverages within state borders. (See Department of Revenue v. Beam Distilling Co., 377 U.S. 341, 346, 84 S.Ct. 1247, 1250, 12 L.Ed.2d 362, 366 [1964].) Therefore, they contend, § 24074 is not invalid under the Supremacy Clause.

This argument is based on the assumption that the Twenty-first Amendment supersedes the federal constitutional taxing power to the extent that such power conflicts with a state's regulation of every phase of the liquor trade within its borders. Such assumption is false. The effect of the Twenty-first Amendment is to free a state of traditional Commerce Clause limitations when the state restricts the importation of intoxicants destined for use, distribution or consumption within its borders. (Hostetter v. Idlewild Liquor Corp., 377 U.S. 324, 330, 84 S.Ct. 1293, 1296–1297, 12 L.Ed.2d 350, 355 [1964].) The Twenty-first Amendment does not supersede all other provisions of the Constitution in its allotted area of liquor regulation. (California v. La Rue, 409 U.S. 109, 115, 93 S.Ct. 390, 395, 34 L.Ed.2d 342, 350 [1972].) Both the Twenty-first Amendment and the power to collect taxes (art. I, § 8) are parts of the United States Constitution. ‘Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case.’ (Hostetter v. Idlewild Liquor Corp., supra, 377 U.S. at p. 332, 84 S.Ct. at p. 1298, 12 L.Ed.2d at p. 356.)

But the inapplicability of the Twenty-first Amendment does not determine the issue before us in the present case. That issue is simple: does section 24074 of the Business and Professions Code merely establish a priority of claims against the seller of a liquor license—in which case the federal tax lien takes priority,11 or does it set out conditions for the transfer of the license which must be satisfied before a transfer of the license may take place and the seller becomes entitled to any portion of the purchase price—in which case the federal lien must be subordinate to the priorities set forth in section 24074?12

In determining that question, three cases are significant. In Golden v. State of California, 133 Cal.App.2d 640, 285 P.2d 49 (1955), the court construed section 24074, as that section then stood, as doing no more than to set out a scheme for satisfying creditors of the seller in cases where the purchase price was not sufficient to meet all of them in full. It concluded that the pro rata scheme then incorporated in section 24074 must yield to the priority of the federal tax claim. But the authority of that case was seriously weakened by the decision of the Court of Appeals for the Ninth Circuit in United States v. State of California, 281 F.2d 726, at p. 728 (9th Cir. 1960), where the court said: ‘Here the license existed because the state had issued it. If the licensee acquired something of value, it was because the state had bestowed it upon him. Whatever value the license, as property, may have had to a purchaser depended upon its transferability. If it was transferable, it was because the state had made it so. If the state had seen fit to impose conditions upon issuance or upon transfer of property it has wholly created, that is the state's prerogative so long as its demands are not arbitrary or discriminatory. The federal government has no power to command the state in this area. It has no power to direct that property be created by the state for purposes of federal seizure. [¶] The United States contends that the state has no right to impose such a condition against the claims of the United States; that a state's control over the issuance of liquor licenses is derived from its police power; that the conditions here imposed by the state relate to revenue and not to police control. [¶] Assuming, arguendo, that conditional demands of a state, unrelated to the privilege sought to be transferred, would be regarded as arbitrary, we cannot say that such is the case here. If (as here) the conditions be lawful in the sense that they are proper and reasonable demands to make of an applicant, they constitute a limitation upon the right of the applicant and upon the property which that right constitutes and upon the values which attach to that property. Those values and no greater values became a part of the bankrupt estate and fell within the reach of the United States.’ We regard Golden as no longer controlling in construing the present section 24074 as quoted above in footnote 10.

In Gough v. Finale, 39 Cal.App.3d 777, 114 Cal.Rptr. 562 (1974) the Court of Appeal for the First Appellate District considered the present statute in the light of United States v. State of California, supra, 281 F.2d 726. It concluded that that case, dealing as it did with a priority granted (under § 24049 of the Bus. & Prof.Code) to the state itself for debts owing to the state was distinguishable from the priorities granted by section 24074 to creditors other than the entity that created the license. The pertinent language in Gough is the following terse statement (39 Cal.App.3d p. 784, 114 Cal.Rptr. p. 567): ‘There is nothing in California law which suggests that the priority provisions of section 24074 subsume any significant right or concern of the State of California or the public, beyond the protection of suppliers or service creditors of licensee.’

Comity and good judicial administration impel us to follow the holding in Gough. However, were we free to decide the question before us without that decision, we would hold that the federal lien in this case must yield to the wage creditors.13 California long has regarded wage creditors as having a special place in the settlement of insolvent estates. Unlike creditors in general, employees stand in a peculiar position vis-a-vis their employers. If their legitimate wage claims are not met, an immediate burden is cast on the state's welfare rolls and disruption of the economic life of the community is direct and may be serious. We see in section 24074, at least as to the first priority therein established, a ‘significant right [and] concern of the State of California,’ sufficient to sustain the application of the section in a case such as this.

The judgment is affirmed.


1.  Originally, the United States cross-appealed from the judgment (Cal. Rules of Court, Rule 3, subd. (c)) insofar as it denied the claim of the United States for penalties imposed with respect to delinquent taxes. Pursuant to motion of the United States, the cross-appeal was dismissed by order of this court.

2.  By order of the trial court, made pursuant to stipulation of plaintiff and the United States, the United States was substituted as a party defendant in place of the originally named defendant, United States Department of the Treasury-Internal Revenue Service.The Los Angeles County superior court had jurisdiction of the United States under 28 U.S.C. § 2410, which provides in part:‘(a) . . . the United States may be named as a party in any civil action or suit . . . in any State Court having jurisdiction of the subject matter . . . (5) of interpleader or in the nature of interpleader with respect to, real or personal property on which the United States has or claims a mortgage or other lien.’

3.  Mating Game, Inc., a California corporation, was named as a defendant. Its default in the interpleader action subsequently was entered by the clerk of the court.

4.  The amount of the tax assessed against Mating Game, Inc., on September 24, 1971, was $2,889.77. To this was added the sum of $281.11 for penalties and interest, for a total assessment of $3,170.88. The notice of levy served on plaintiff June 13, 1972, showed the total tax liability of Mating Game, Inc., to be $3,329.89. This sum was comprised of $3,170.88 (unpaid balance of assessment) plus $159.01 (interest to June 30, 1972, penalty and lien fee). Additional interest accrued after June 30, 1972, at the rate of 52 cents per day.

5.  Findings of fact ordinarily have no place in summary judgment procedure which is concerned with ‘issue finding,’ not ‘issue determination.’ (Code Civ.Proc. § 437c; de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 148, 26 Cal.Rptr. 562 [1962].) Consequently, a court is without power to make findings of fact in summary judgment proceeding. (Perry v. Farley Bros. Moving & Storage, Inc., 6 Cal.App.3d 884, 889, 86 Cal.Rptr. 397 [1970]; Meyer Koulish Co. v. Cannon, 213 Cal.App.2d 419, 432, 28 Cal.Rptr. 757 [1963]; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 346, 333 P.2d 142 [1958]; Weichman v. Vetri, 100 Cal.App.2d 177, 180, 223 P.2d 288 [1950].)In the instant case, the interpleaded defendants filed a stipulation of facts before the motion of the United States for summary judgment was heard. Defendants thereby agreed (at least impliedly) that the action should be tried on the basis of the facts stipulated. (See 4 Witkin, Cal.Procedure, 2d ed., p. 2704, ‘Proceedings Without Trial,’ § 38.) We therefore view the action as having been so tried, rather than having been determined by summary judgment proceeding.When a cause is submitted to the trial court on an agreed statement of facts without any other evidence, findings of fact are unnecessary because the only question before the court is the law applicable to the stipulated or agreed facts; thus, on appeal any findings of fact may be disregarded. (Crawford v. Imperial Irrigation Dist., 200 Cal. 318, 335, 253 P. 726 [1927]; McMenomy v. White, 115 Cal. 339, 343, 47 P. 109 [1896]; Gregory v. Gregory, 102 Cal. 50, 51–52, 36 P. 364 [1894].) However, where the stipulation sets forth only evidentiary material, it is proper for the trial court to make findings of the ultimate facts. (Taylor v. George, 34 Cal.2d 552, 556, 212 P.2d 505 [1949]; Hugo Neu Corp. v. County of Los Angeles, 241 Cal.App.2d 703, 706, 50 Cal.Rptr. 916 [1966]; City of Los Angeles v. Gage, 127 Cal.App.2d 442, 450, 274 P.2d 34 [1954].) Since the stipulation of facts here set forth some evidentiary matters, the trial court properly made findings as to ultimate facts. At any rate, none of the parties to this appeal disputes the facts as found, arguing only issues of law.

6.  The judgment was signed August 24, 1973, and entered September 4, 1973.

7.  Title 26 U.S.C. § 6322; Glass City Bank v. United States, 326 U.S. 265, 267, 66 S.Ct. 108, 110, 90 L.Ed. 56, 58–59 (1945).

8.  Judgment was signed August 24, 1973, although it was not entered until September 4, 1973. The relevance of August 1, 1973 (as the date after which interest continued to accrue) arises because of the date the judgment was signed.

9.  Pursuant to written stipulation of the interpleaded defendants, the trial court ordered that the clerk enforce the judgment by paying the following sums to defendants: to the United States, $3,567.86; to the Division of Labor Law Enforcement, $717.17; to the Union Welfare Fund, $834.09; to Temkin, Orling and Rooney, $2,579.92.

10.  Bus. & Prof.Code § 24074 provides in part: ‘Before the filing of such a transfer application with the department [of Alcoholic Beverage Control], if the intended transfer of the business or license involves a purchase price or consideration, the licensee and the intended transferee shall establish an escrow with some person, corporation, or association not a party to the transfer acting as escrow holder, and the intended transferee shall deposit with the escrow holder the full amount of the purchase price or consideration. . . . The licensee and intended transferee shall also enter into an agreement, which agreement shall be deposited with the escrow holder, directing the escrow holder, after the requirements for transfer as provided in Section 24049 are satisfied, to pay out of the purchase price or consideration, the claims of the bona fide creditors of the licensee who file their claims with the escrow holder before the escrow holder is notified by the department of its approval of the transfer of the license or if the purchase price or consideration is not sufficient to pay the claims in full, to distribute the consideration as follows: [¶] First, to the payment of claims for wages, salaries, or fringe benefits of employees of the seller or transferor earned or accruing prior to the sale, transfer, or opening of an escrow for the sale thereof; [¶] Second, to the payment of claims of secured creditors to the extent of the proceeds which arise from the sale of the security; [¶] Third, to the United States for claims based on income or withholding taxes; and thereafter for claims based on any tax other than taxes specified in Section 24049; . . .’

11.  The relative priority of a lien of the United States for unpaid taxes, and a state-created lien, is a federal question to be determined by federal law. (Aquilino v. United States, 363 U.S. 509, 513–514, 80 S.Ct. 1277, 1280–1281, 4 L.Ed.2d 1365, 1369 [1960]; United States v. Acri, 348 U.S. 211, 213, 75 S.Ct. 239, 241, 99 L.Ed. 264, 267 [1955]; United States v. Security Trust & Sav. Bank, 340 U.S. 47, 49, 71 S.Ct. 111, 112–113, 95 L.Ed. 53, 56 [1950]; United States v. Trigg, 465 F.2d 1264, 1269 [8th Cir. 1972], cert. den. 410 U.S. 909, 93 S.Ct. 963, 35 L.Ed.2d 270 [1973]; United States v. Christensen, 269 F.2d 624, 627 [9th Cir. 1959]; United States v. City of Los Angeles, 336 F.Supp. 1014, 1016 [C.D.Cal.1972]; Latipac, Inc. v. General Tire & Rubber Co., 347 F.Supp. 1043, 1046 [N.D.Cal.1971].) Under federal law, the priority of a federal tax lien against a lien created by state law is governed by the common law rule that ‘the first in time is the first in right.’ (United States v. Pioneer American Ins. Co., 374 U.S. 84, 87, 83 S.Ct. 1651, 1654, 10 L.Ed.2d 770, 774 [1963]; United States v. City of New Britain, 347 U.S. 81, 85–86, 74 S.Ct. 367, 370–371, 98 L.Ed. 520, 525–526 [1954].) That is, the lien which is first in time will be deemed first in right if it is specific and perfected in the federal sense. (United States v. Morrison, 247 F.2d 285, 287 [5th Cir. 1957]; United States v. Truss Tite, Inc., 285 F.Supp. 88, 91 [S.D.Tex.1968].)When a federal lien arises upon assessment, it is fully perfected, without filing, as against all but those classes of persons enumerated in 26 U.S.C. § 6323.The statutes establishing a tax lien were enacted by Congress pursuant to its constitutional power ‘to lay and collect taxes' (U.S.Const., art. I, § 8; Michigan v. United States, 317 U.S. 338, 340, 63 S.Ct. 302, 303, 87 L.Ed. 312, 314 [1943]); they are, therefore, the supreme law of the land. (U.S.Const., art. VI, cl. 2; Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 229, 84 S.Ct. 784, 787–788, 11 L.Ed.2d 661, 665 [1964].) Any state law, however clearly within a state's acknowledged power, which interferes with or is contrary to such federal statutes, must yield. (See Kewance Oil Co. v. Bicron Corp., 416 U.S. 470, 479–480, 94 S.Ct. 1879, 1885–1886, 40 L.Ed.2d 315, 324 [1974]; Sperry v. Florida, 373 U.S. 379, 384, 83 S.Ct. 1322, 1325, 10 L.Ed.2d 428, 432 [1963]; Free v. Bland, 369 U.S. 663, 666, 82 S.Ct. 1089, 1092, 8 L.Ed.2d 180, 183 [1962]; Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199, 205 [1932]; Metropolitan Life Ins. Co. v. United States, 107 F.2d 311, 313 [6th Cir. 1939], cert. den. 310 U.S. 630, 60 S.Ct. 978, 84 L.Ed. 1400 [1940].) ‘[I]t would be contrary to the federal policy of uniformity in the federal tax laws to permit the relative priority of federal tax liens to ‘be determined by the diverse rules of the various States.’' (United States v. Equitable Life Assur. Soc., 384 U.S. 323, 331, 86 S.Ct. 1561, 1566, 16 L.Ed.2d 593, 599 [1966]. See also United States v. Christensen, supra, 269 F.2d at p. 624.)

12.  State law determines whether a person has property or rights to property to which a federal tax lien can attach. (Aquilino v. United States, supra, 363 U.S. at pp. 512–513, 80 S.Ct. at pp. 1279–1280, 4 L.Ed.2d at p. 1368; United States v. Bess, 357 U.S. 51, 55, 78 S.Ct. 1054, 1057, 2 L.Ed.2d 1135, 1140–1141 [1958]; Avco Delta Corp. Canada, Ltd. v. United States, 484 F.2d 692, 697 [7th Cir. 973], cert. den. 415 U.S. 931, 94 S.Ct. 1444, 39 L.Ed.2d 490 [1974].)

13.  On the record before us, we need not, and do not, consider the applicability of section 24074 in cases involving a conflict between a federal tax lien and the other priorities set out in section 24074.

DUNN, Associate Justice.

FILES, P. J., and KINGSLEY, J., Concur.