Unpublished Disposition, 921 F.2d 281 (9th Cir. 1990)

MEMORANDUM^** 

Donald R. Schramm appeals pro se the district court's judgment dismissing his tax action for lack of subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, McIntyre v. United States, 789 F.2d 1408, 1410 (9th Cir. 1986), and affirm.

In his amended complaint, Schramm requested that the district court "dismiss with prejudice" his income tax deficiencies and penalties on the ground that the Internal Revenue Service ("IRS") could not legally send him notices of deficiency without first granting his request for an administrative appeals conference pursuant to 26 C.F.R. Sec. 601.106(b). In the alternative, Schramm requested that the district court order the IRS to provide him with such an administrative conference, and to quash the notices of deficiency issued to him. The district court concluded that Schramm's suit was barred by the Anti-Injunction Act, and dismissed his action.

Actions to enjoin the assessment and collection of taxes by the IRS are narrowly limited by the Anti-Injunction Act ("Act"), 26 U.S.C. § 7421. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th Cir. 1982). In pertinent part, the Act states 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). There are, however, 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 the exceptions to the Act. Alexander v. "Americans United" Inc., 416 U.S. 752, 757-58 (1974); Jensen v. IRS, 835 F.2d 196, 198 (9th Cir. 1987). Thus, " [o]nce a taxpayer satisfies one of the exceptions to the Act, he is no longer jurisdictionally barred from seeking an injunction." Jensen, 835 F.2d at 198.

Schramm does not allege that any of the statutory exceptions to the Act are applicable here. There is no statutory exception where the IRS refuses to grant a taxpayer a conference before the Appellate Division of the IRS.

The judicial exception to the Act requires the taxpayer to demonstrate that (1) under no circumstances can the government ultimately prevail on the merits; and (2) the taxpayer will suffer irreparable injury without injunctive relief. Maxfield v. United States Postal Serv., 752 F.2d 433, 434 (9th Cir. 1984).

The availability of an adequate legal remedy forecloses the question of whether the taxpayer will suffer irreparable harm. Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982). The payment of a disputed tax followed by a refund suit constitutes an adequate remedy at law. Cool Fuel, 685 F.2d at 314.

The providing of a conference before the Appellate Division of the IRS is not essential to the validity of a notice of deficiency. See Cupp v. C.I.R., 65 T.C. 68, 83 (1975); see also Wilcox v. C.I.R., 848 F.2d 1007, 1008 (9th Cir. 1988) (citation omitted).

Thus, Schramm cannot demonstrate that under no circumstances could the IRS prevail on its claim that Schramm was not entitled to an administrative conference. Therefore, Schramm fails to meet the first requirement of the judicial exception to the Act. See Maxfield, 752 F.2d at 434. Schramm also has an adequate remedy at law in the form of paying his taxes and initiating a proper suit for a refund. See Cool Fuel, 685 F.2d at 314. Therefore, the question of whether Schramm will suffer irreparable harm is foreclosed, and Schramm fails to meet the second requirement of the judicial exception to the Act. See Stonecipher, 653 F.2d at 401. Accordingly, the district court did not err in dismissing Schramm's complaint for lack of subject matter jurisdiction. See Jensen, 835 F.2d at 198.¹ 

AFFIRMED.