Unpublished Disposition, 922 F.2d 844 (9th Cir. 1989)

No. 90-15098.

United States Court of Appeals, Ninth Circuit.

Before HUG, WILLIAM A. NORRIS and NOONAN, Circuit Judges

MEMORANDUM^** 

FACTS AND PROCEEDINGS BELOW.

On April 24, 1989, the Internal Revenue Service ("IRS") notified Wiley C. Barritt by letter of the taxes, penalties, and interest he owed for the years 1982 through 1985. The letter also stated that Barritt's account was past due and threatened to impose additional interest and penalties if Barritt failed to pay. On May 22, 1989, Barritt filed a complaint against the United States in the District of Arizona. Barritt brought a quiet title action and sought to enjoin the IRS from attempting to collect tax deficiencies alleged against him. Barritt claimed that the IRS failed to make a proper determination that a deficiency existed and did not comply with various notice provisions of the Internal Revenue Code ("Code"). Barritt moved for a temporary restraining order and preliminary injunction. The government moved to dismiss or, in the alternative, for summary judgment. The district court concluded that the IRS gave Barritt proper notice and demand under 26 U.S.C. § 6302. On November 9, 1989, the court denied Barritt's motion and granted the government's motion for summary judgment. Barritt appeals pro se.

ANALYSIS.

Standard of Review

The existence of subject matter jurisdiction is a question of law reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). This court accepts the district court's factual findings on jurisdictional issues, however, unless clearly erroneous. Jensen v. IRS, 835 F.2d 196, 198 (9th Cir. 1987).

Sovereign Immunity

The United States is immune from suit unless it has expressly waived its immunity and consented to be sued. Gilbert v. DeGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Because such consent is a jurisdictional prerequisite, dismissal is required absent express statutory consent. Id. Sovereign immunity is waived only by statutes specifically and expressly providing for the maintenance of suits against the United States. See Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (per curiam), cert. denied, 466 U.S. 958 (1984). Barritt bears the burden of showing the United States unequivocally waived its immunity. See id.

Anti-Injunction Act

The Anti-Injunction Act ("Act"), 26 U.S.C. § 7421, narrowly limits actions to enjoin the assessment and collection of taxes by the IRS. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 313 (9th Cir. 1982). The Act provides in pertinent part: "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 to the Act. See id. Secs. 6212(a), (c), 6213(a), 6672(b), 6694(c), 7426(a), (b) (1), 7429(b). "Once 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.

The district court did not have jurisdiction to hear Barritt's claims that the IRS violated various Code provisions. In his complaint, Barritt alleged: (1) the IRS did not determine a deficiency existed within the meaning of Code section 6211(a); (2) the IRS failed to record his liability on an assessment list as required by Code section 6203 and Treas.Reg. 301.6203-1; and (3) he did not receive a proper notice and demand for payment as required by section 6203(a). None of these Code provisions are exceptions to the Act, nor do they expressly waive the government's sovereign immunity. The district court was without subject matter jurisdiction to hear these claims, therefore they must be dismissed. Gilbert, 756 F.2d at 1458.

Barritt's Quiet Title Action

Under 28 U.S.C. § 2410, the United States may be joined as a party to a quiet title action affecting property upon which it claims a lien. 28 U.S.C. § 2410(a); Bank of Hemet v. United States, 643 F.2d 661, 664 (9th Cir. 1981). A taxpayer may not use a section 2410 action to collaterally attack the merits of an assessment. United States v. Polk, 822 F.2d 871, 872 n. 1 (9th Cir. 1987). Rather, the taxpayer may only contest the procedural validity of a tax lien. United States v. Coson, 286 F.2d 453, 456 (9th Cir. 1961). Barritt's allegations concern the merits of his tax assessment, not the procedural validity of the IRS's lien. See Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990). Barritt cannot challenge his tax assessment in a quiet title action, therefore he has failed to state a cause of action under section 2410(a). His claim is barred by the doctrine of sovereign immunity.

Conclusion

The district court's grant of summary judgment is VACATED and Barritt's complaint is DISMISSED for lack of subject matter jurisdiction.