Unpublished Disposition, 911 F.2d 738 (9th Cir. 1988)

MEMORANDUM^** 

James and Sharon Ford appeal pro se the district court's denial of their motions for a preliminary injunction and a temporary restraining order to enjoin a levy on James Ford's wages. The Fords contend that the IRS failed to properly notify Sharon Ford of a tax deficiency against her and that the IRS could not levy on Sharon's half of the Fords' community property. We affirm.

James and Sharon Ford were married in the State of Washington in 1968, and have been living in Washington at all times relevant to this appeal. In May of 1986, the IRS mailed to James Ford a statutory notice of deficiency in income tax for the 1983 tax year. After assessing the deficiency, the IRS proceeded to file a lien against all of James Ford's property in December of 1987. In addition, the IRS served a notice of levy on James Ford's employer, claiming a right to his wages and salary.

The Fords filed suit in the district court as a "marital community," claiming that James Ford's tax debt could not be enforced against the assets of the marital community, and that the marital community had never received statutory notices of deficiency and assessment. The "marital community" sought a temporary restraining order and a preliminary injunction to stop the IRS levy on James' monthly salary. The IRS moved to dismiss the case on the ground that a marital community is not an entity entitled to bring suit in a federal district court. The court denied this motion after the Fords substituted themselves as the real parties in interest. On June 13, 1988, the court denied the Fords' request for a temporary restraining order and a preliminary injunction.

II

The grant or denial of a preliminary injunction will be reversed only where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. See Religious Technology Center, Church of Scientology Int'l, Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir. 1989); Lou v. Belzberg, 834 F.2d 730, 733 (9th Cir. 1987), cert. denied, 485 U.S. 993 (1988).

III

Injunctive relief against the IRS is generally prohibited by the Anti-Injunction Act, 26 U.S.C. § 7421. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th Cir. 1982). Unless a suit fits within a statutory or judicially created exception to the Act, the district court lacks subject matter jurisdiction and must dismiss the complaint. Jensen v. IRS, 835 F.2d 196, 198 (9th Cir. 1987).

Under the statutory exception created by 26 U.S.C. § 6213(a), James Ford could have filed a petition for redetermination with the tax court within 90 days after the notice of deficiency was mailed. See Cool Fuel, 685 F.2d at 312. Not having done this, it was not error for the district court to deny relief to him, as Ford is precluded from bringing this action in federal court.¹ 

Nor did the court err by denying injunctive relief as to Sharon Ford. A plaintiff must demonstrate irreparable injury, Shannon v. United States, 521 F.2d 56, 60 (9th Cir. 1975), cert. denied, 424 U.S. 965 (1976), likelihood of success on the merits, id., and no adequate remedy at law, Jensen, 835 F.2d at 198; Cool Fuel, 685 F.2d at 313-14 & n. 1; Schildcrout v. McKeever, 580 F.2d 994, 997 (9th Cir. 1978). Sharon's alleged harm is the loss of James' income; however, financial loss alone must be coupled with the deprivation of an administrative remedy in order to warrant equitable relief. See Jensen, 835 F.2d at 198; California ex rel. Van de Kamp v. Tahoe Regional Planning Agency, 766 F.2d 1316, 1319 (9th Cir. 1985). Complete compensatory relief is available by way of a wrongful levy action, if its prerequisites are met; and James Ford could have sought a redetermination, and may still seek a refund. Given that it is James' wages which were subject to levy, and they are for the benefit of the community under Washington law, and a tax liability is presumed to be a community debt, see Pacific Gamble Robinson Co. v. Lapp, 95 Wash. 2d 341, 344, 622 P.2d 850, 854 (1980); Brubaker v. Hovde, 45 Wash. App. 44, 47, 723 P.2d 1193, 1195 (1986), the Fords' entire community property is subject to levy. See United States v. Stonehill, 702 F.2d 1288, 1298-99 (9th Cir. 1983), cert. denied, 465 U.S. 1079 (1984) (laws of the Philippines permit tax liens to reach all of spouses' community property to satisfy one spouse's tax liability). The Fords have therefore not shown a likelihood of success on the merits, or that Mrs. Ford's rights in the property can be "superior to rights of the United States," 28 U.S.C. § 7426(b) (1), such that either is entitled to the relief requested.

AFFIRMED.