Unpublished Disposition, 888 F.2d 130 (9th Cir. 1989)

MEMORANDUM^*

Appellant John Albert Strand ("Strand") brought suit against the United States government, alleging that he was a victim of unconstitutional discrimination because the IRS would not allow him to file a joint tax return, when his wife decided to file her taxes separately. The district court granted the United States motion to dismiss. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

Strand filed this suit claiming damages of $10 million for deprivation of rights guaranteed by the First, Fifth, Sixth and Fourteenth Amendments. The Internal Revenue Service ("IRS") levied against Strand's separate property, not upon both his and his wife's, to recoup tax deficiencies caused by Strand's joint tax filing. Strand contends that this created "mental and physical injury" and defamed his name and reputation.

The district court held that Strand did not properly serve the United States. In response, appellant argues that serving President Reagan was effective. Fed. R. Civ. P. Rule 4(d) (4) requires that service of process against the United States be upon the U.S. Attorney of the district, with a copy mailed to the Attorney General's Office in Washington, D.C. Strand contends he did serve both the U.S. Attorney and Attorney General. However, there is no proof of such service in the record.

Moreover, the court found that, even if service was proper, the district court lacked subject matter jurisdiction. Strand failed to file an administrative claim with the IRS for a refund, pursuant to 26 U.S.C. § 7422(a). By the terms of the statute, then, Strand may not bring this claim.

Additionally, sovereign immunity bars Strand's claims. The United States waives sovereign immunity only in limited circumstances. One waiver, applicable here, is under 28 U.S.C. § 1346(a) (1). This waiver provides for suit in district court to recover erroneously collected income tax. However, without filing an administrative claim under 26 U.S.C. § 7422(a), a taxpayer is precluded from maintaining an action for a refund. United States v. Wells Fargo Bank, 393 F.2d 272, 273 (9th Cir. 1968). Appellant admits he filed no claim for a refund. Therefore, the district court's dismissal was appropriate.

The Federal Tort Claims Act, 28 U.S.C. § 2671 et. seq., is likewise no assistance to appellant. 28 U.S.C. § 2680(c) of the FTCA specifically excludes a waiver of sovereign immunity for suits "arising in respect of the assessment and collection of any tax." The district court correctly found no subject matter jurisdiction and dismissal of the action was warranted.

The government has asked for sanctions for the bringing of a frivolous appeal. We do not find sanctions appropriate in this pro se action.

Accordingly, the judgment of the district court is AFFIRMED.