Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

Wayne L. Olin appeals pro se the district court's order dismissing his complaint for lack of subject matter jurisdiction. We review de novo the district court's dismissal for lack of subject matter jurisdiction. Jensen v. IRS, 835 F.2d 196, 198 (9th Cir. 1987). A district court's factual findings on jurisdictional issues are reviewed for clear error. See Bruce v. United States, 759 F.2d 755, 758 (9th Cir. 1985). We have jurisdiction pursuant to 28 U.S.C. § 1291.¹  We affirm with sanctions.

* Merits

Olin's claims for injunctive relief against the IRS are barred by the Anti-Injunction Act (Act), 26 U.S.C. § 7421. Actions to enjoin the assessment and collection of taxes by the IRS are narrowly limited by the Act. See Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th Cir. 1982). The Act states in pertinent part that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." 26 U.S.C. § 7421(a). Although there are several statutory exceptions and one judicial exception to the Act, see id. Secs. 6212(a), (c), 6213(a), 6672(b), 6694(c), 7426(a), (b) (1), 7429(b); Bob Jones Univ. v. Simon, 416 U.S. 725, 736-37 (1974), the district court must dismiss for lack of subject matter jurisdiction any suit that does not fall within one of those exceptions. See Alexander v. "Americans United" Inc., 416 U.S. 752, 757-58 (1974); Jensen v. IRS, 835 F.2d 196 198 (9th Cir. 1987).

In addition to satisfying an exception to the Act, the taxpayer must allege sufficient grounds to warrant equitable relief. See Maxfield v. United States Postal Serv., 752 F.2d 433, 434 (9th Cir. 1984). To establish equitable grounds for an injunction, the taxpayer must show that there is no adequate remedy at law and that denial of injunctive relief would cause immediate irreparable injury. See Jensen, 835 F.2d at 198 (citing Cool Fuel, 685 F.2d at 313-14). To avoid the preclusive effect of the Act, Olin advances two arguments. Both are without merit.

First, Olin erroneously asserts that he may bring an action for wrongful levy pursuant to 26 U.S.C. § 7426.²  A claim for wrongful levy under section 7426 is only available to "persons other than the person against whom is assessed the tax out of which [the] levy arose." 26 U.S.C. § 7426; see Shannon v. United States, 521 F.2d 56, 59 (9th Cir. 1975), cert. denied, 424 U.S. 965 (1976). Thus, because the levy here arose out of taxes assessed against Olin, he may not bring an action under section 7426.

Second, Olin contends that received no notice before the IRS began levying on his wages. The IRS must comply with the notice of provisions of I.R.C. Secs. 6212 and 6213 before levying on a taxpayer's wages. 26 U.S.C. §§ 6212, 6213; see Cool Fuel, 685 F.2d at 312. If the IRS fails to comply with these provisions, the court may enjoin the levy notwithstanding the provisions of section 7421(a). See 26 U.S.C. §§ 6212(a), 6213(a) and 7421(a).

At oral argument, the IRS presented evidence in the form of an IRS official's sworn affidavit indicating that the notice provisions of sections 6212(a) and 6213(a) were satisfied.³  When presented with this evidence at oral argument, Olin did not contest the government's claim that he had received such notice.

Moreover, even if the IRS had failed to provide Olin with proper notice, Olin has failed to establish sufficient grounds to warrant equitable relief. See Jensen, 835 F.2d at 198; Maxfield, 752 F.2d at 434. Where a taxpayer has the ability to pay a disputed tax and file a suit for refund in the district court, the taxpayer has an adequate remedy at law. Cool Fuel, 685 F.2d at 314. Olin has not demonstrated why he cannot pay the tax and file a suit for a tax refund. Thus, the district court did not err in dismissing this claim. See id.

To the extent that Olin's complaint sought recovery of amounts collected by the IRS, his suit was barred by sovereign immunity and subject to dismissal by the district court.

The United States is immune from suit unless it has expressly waived its immunity and consented to be sued. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Absent express statutory consent to be sued, dismissal is required. Id.

Here, Olin has not shown that Congress has provided a statutory waiver of sovereign immunity in his action to recover amounts collected by the IRS. 28 U.S.C. § 1346(a) (1) provides a specific grant of jurisdiction to federal district courts over actions for the refund of any internal-revenue tax allegedly erroneously or illegally assessed or collected. I.R.C. Sec. 7422(a) grants a waiver of sovereign immunity to permit jurisdiction under 28 U.S.C. § 1346(a) (1). Under section 7422(a), however, the waiver is contingent upon the taxpayer's filing of an administrative claim for refund. See 26 U.S.C. § 7422; Boyd v. United States, 762 F.2d 1369, 1371 (9th Cir. 1985). Because Olin has not alleged that he has filed an administrative claim for refund, the district court was without jurisdiction to consider this claim. Id.

Olin's argument that the government failed to comply with I.R.C. Sec. 7403(a) also lacks merit. He claims that under this section, the IRS is required to institute a civil action in the district court as a precondition to the enforcement of a tax lien. I.R.C. Sec. 7403 authorizes the government to direct a civil action in the district court to enforce a lien, but does not require such action. See 26 U.S.C. § 7403.⁴ 

Finally, Olin asserts that he is not a taxpayer subject to the Internal Revenue laws, and that the filing of income tax returns is voluntary. These arguments are frivolous, and have been repeatedly rejected by this court. See Syufy v. United States, 818 F.2d 1457, 1465 (9th Cir. 1987) (taxes are enforced exactions, not voluntary contributions); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir. 1981) (rejecting argument that appellant is not "person" under the Internal Revenue Code).

II

Sanctions

The government requests sanctions against Olin for bringing this appeal. This court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912; Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988). An appeal is frivolous is the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted). Olin's claims are wholly without merit. Accordingly we impose a sanction of $500.00.

AFFIRMED WITH SANCTIONS.