Unpublished Disposition, 927 F.2d 608 (9th Cir. 1991)

MEMORANDUM^** 

Patrick A. and Genevieve Detches appeal pro se the district court's summary judgment in favor of the United States. The Detcheses sought to quiet title to property which the Internal Revenue Service (IRS) had levied upon in order to collect penalties owed by the Detcheses. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm.

On appeal, the United States argues that due to the doctrine of sovereign immunity, the district court lacked jurisdiction to hear this suit. A federal appellate court has a duty to consider not only its own jurisdiction, but also whether the district court had subject matter jurisdiction over the action. United States v. Jones, 852 F.2d 1235, 1237 (9th Cir. 1988). The United States, as a sovereign, may not be sued without its consent, and the terms of consent define the court's jurisdiction to hear the suit. United States v. Testan, 424 U.S. 392, 399 (1976). Thus, no suit may be maintained against the United States unless it is brought in compliance with a specific statute under which the United States has consented to suit. Id.

The Detcheses attempt to invoke jurisdiction under 28 U.S.C. § 2410 by characterizing their suit as one to quiet title.¹  The Detcheses argued that the levy upon their property was irregular because the assessment of tax liability was procedurally incorrect. "A taxpayer may not use a section 2410 action to collaterally attack the merits of an assessment." Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990) (citing United States v. Polk, 822 F.2d 871, 872 n. 1 (9th Cir. 1987)). A taxpayer may only use section 2410 to challenge the procedural validity of a tax lien. Id. Here, the Detcheses challenge the validity of their tax assessment, not of the lien.²  Any challenge to the validity of their assessment must be brought in a suit for refund. See Zimmer v. Connett, 640 F.2d 208, 210 (9th Cir. 1981). Thus, the Detcheses cannot sue the United States under section 2410.³ 

Further, the district court lacked jurisdiction to consider the Detcheses' suit for injunctive relief under the Anti-Injunction Act ("Act"). The Act prohibits a taxpayer from bringing a "suit for the purpose of restraining the assessment or collection of any tax...." 26 U.S.C. § 7421(a). The Act is strictly enforced. See Maxfield v. United States Postal Serv., 752 F.2d 433, 434 (9th Cir. 1984); see also Bob Jones Univ. v. Simon, 416 U.S. 725, 736-37 (1974). Thus, ordinarily taxpayers are limited in district court "to suits for refund." United States v. Condo, 782 F.2d 1502, 1506 (9th Cir. 1986).

The only exception to this bar is the two-prong test announced in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962). Under Enochs, injunctive relief is available if the taxpayer can demonstrate that (1) under no circumstances could the government prevail, and (2) the taxpayer will be irreparably harmed if the injunction is not granted. Id.; see also Condo, 782 F.2d at 1506.

The Detcheses fail to show the Enochs exception is applicable in this case. They argue (1) the Certificate of Assessment provided by the IRS as evidence of their assessment constitutes inadmissible hearsay, and (2) the district court did not allow them to obtain discovery. These arguments are meritless.

First, the Certificate of Assessment is admissible as an official record of a public agency. See United States v. Neff, 615 F.2d 1235, 1241 (9th Cir. 1980). Such certificates have been admitted as evidence of an assessment in numerous cases in this circuit. See, e.g., Elias, 908 F.2d at 524; United States v. Voorhies, 658 F.2d 710, 715 (9th Cir. 1981). Second, the district court did not abuse its discretion in denying the Detcheses the opportunity for further discovery. See Visa Int'l Serv. Ass'n v. Bankcard Holders of America, 784 F.2d 1472, 1475 (9th Cir. 1986) (denial of Fed. R. Civ. P. 56(f) motion to compel discovery proper "where it was clear that the evidence sought was almost certainly nonexistent or was the object of pure speculation."). The Detcheses sought discovery of documents recording their assessment. Such evidence, however, had already been provided by the IRS and included in the record.

Because their arguments lack merit, the Detcheses have failed to show that under no circumstances could the government prevail. See Enochs, 370 U.S. at 7. Further, because the Detcheses have the option of paying the tax and bringing a suit for refund, they have failed to show irreparable harm. See id.; Condo, 782 F.2d at 1506. Therefore, the Enochs exception does not apply here.

AFFIRMED.