Claude E. Atkins Enterprises, Inc., Plaintiff-appellant, v. United States of America, Defendant-appellee, 29 F.3d 631 (9th Cir. 1994)

MEMORANDUM^** 

Claude E. Atkins Enterprises, Inc. ("Enterprises") appeals the district court's dismissal of Enterprises' action against the United States for lack of subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate and remand.

Enterprises filed this action under 28 U.S.C. § 1346(a) (1) for a refund of taxes allegedly erroneously assessed and collected. The United States moved to dismiss the complaint for lack of jurisdiction. The United States argued that Enterprises lacked standing to bring an action for a refund under section 1346(a) because Enterprises was not a "taxpayer" within the scope of 26 U.S.C. § 7422. The district court granted the United State's motion and dismissed Enterprises' action for lack of jurisdiction.

On appeal, the IRS contends that its position below was not well-founded and that Enterprises has standing as a "taxpayer" to bring a suit for a refund under section 1346(a). In light of our decision in Williams v. United States, No. 92-56207, slip op. 5251 (9th Cir. May 19, 1994), we need not decide whether Enterprises is a "taxpayer" within the meaning of 26 U.S.C. § 7422. In Williams, we held that 28 U.S.C. § 1346(a) permits a third party from whom taxes were erroneously collected to sue the United States for a refund. Williams, No. 92-56207, slip op. at 5254-55. Because Enterprises alleges that taxes were erroneously collected from it, Enterprises has standing to sue under section 1346(a). See id. Thus, the district court had jurisdiction to consider the merits of Enterprises' action. See id. Accordingly, we vacate the district court's judgment and remand for further proceedings.¹ 

VACATED AND REMANDED.