United States of America, in the Matter of the Taxindebtedness of Wilford L. Severance, Dbauniversity Home Style Laundry, Plaintiff-appellee, v. Wilford L. Severance, Dba University Home Style Laundry,defendant-appellant, 991 F.2d 806 (10th Cir. 1993)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

Appellant appeals the district court's dismissal of his complaint and motion. In order to collect delinquent taxes, the government applied for a warrant to enter appellant's business and seize certain property. After a finding of probable cause based on the affidavit of an Internal Revenue Service officer, a Warrant for Entry on Premises to Effect Levy was issued by a magistrate judge. The warrant was executed and appellant then filed a complaint in the district court, naming federal and state employees as defendants. The complaint requested that the warrant be stricken and that the seized property be returned. Appellant also filed a Motion to Compel a Judicial Ruling, naming the same defendants.

The district court adopted the magistrate judge's recommendations and dismissed the complaint and motion on the grounds of res judicata and collateral estoppel. We agree that the complaint and motion should be dismissed, but on different grounds than found by the district court. We hold that the complaint and motion should be dismissed for lack of subject matter jurisdiction.

We review the subject matter jurisdiction of the district court de novo. Williams v. United States, 957 F.2d 742, 743 (10th Cir. 1992). "When an action is one against named individual defendants, but the acts complained of consist of actions taken by defendants in their official capacity as agents of the United States, the action is in fact one against the United States." Atkinson v. O'Neill, 867 F.2d 589, 590 (10th Cir. 1989). Appellant makes no claims against individuals other than in their official capacities as agents of the United States. As a general proposition, the United States cannot be sued without its consent. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Jacks, 960 F.2d 911, 913 (10th Cir. 1992). Sovereign immunity can only be waived by Congress and, in the absence of clear congressional intent, courts lack jurisdiction over actions against the United States. Id. "Congress has provided express methods by which proposed deficiencies, assessments or collection of taxes may be challenged, and express prohibition in the Anti-Injunction Act, 26 U.S.C. § 7421(a), against suits brought for the purpose of restraining the assessment or collection of any tax except in the prescribed manner." Lonsdale v. United States, 919 U.S. 1440, 1444 (10th Cir. 1990).

To the extent appellant is requesting this court to restrain the collection of the tax, his claim is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a).²  The judicial exception³  to that Act does not apply to avoid the jurisdictional bar because appellant has not demonstrated either that under no circumstances could the government establish its claim to the asserted tax or that irreparable injury would otherwise occur. See Lonsdale, 919 F.2d at 1442.

To the extent that appellant is requesting a refund, his claim is barred on jurisdictional grounds because filing a refund claim is a prerequisite to such a suit. 26 U.S.C. § 7422(a).⁴  There is no evidence that appellant has filed a refund claim, as required by statute.

The judgment of the United States District Court for the District of Colorado is MODIFIED to reflect dismissal for lack of subject matter jurisdiction.