Joseph J. Saidy; Joan A. Saidy, Plaintiffs-appellants, v. United States of America, Defendant-appellee, 97 F.3d 1460 (9th Cir. 1996)

Before: BEEZER and THOMPSON, Circuit Judges, and GILLMOR, District Judge.^** 

MEMORANDUM^*** 

Taxpayers Joseph and Joan Saidy filed a claim for federal income tax refund in connection with assessments made to partnership items for Terra-Drill Associates II, a limited partnership. The district court granted summary judgment in favor of the United States,¹  and the Saidys timely appealed. Because the district court lacked jurisdiction, we vacate its judgment, and remand this case to the district court for dismissal.

* We review a grant of summary judgment de novo. Hoeck v. City of Portland, 57 F.3d 781, 784 (9th Cir. 1995), cert. denied, 116 S. Ct. 910 (1996). Whether the district court had subject matter jurisdiction is a question of law reviewed de novo. Id.

II

Section 7422(h) of the Internal Revenue Code states that "No action may be brought for a refund attributable to partnership items (as defined in section 6231(a) (3)) except as provided in section 6228(b) or section 6230(c)." Because the Saidys did not bring an action in compliance with the terms of § 7422, the district court did not have jurisdiction to consider the case. 26 U.S.C. § 7422(h).

The Saidys argue that jurisdiction was conferred under 28 U.S.C. § 1346, which states that the district courts shall have jurisdiction over civil actions against the United States "for the recovery of any internal-revenue tax alleged to have been erroneously or illegally assessed or collected." Section 1346 fixes the requirements for refund suits, but it does not purport to establish all of the jurisdictional prerequisites to bringing such suits. The United States is immune from suit unless it has waived its sovereign immunity to be sued. Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990). If the United States has not waived sovereign immunity, the district court does not have jurisdiction. See Huff v. United States, 10 F.3d 1440, 1445 & n. 4 (9th Cir. 1993), cert. denied, 114 S. Ct. 2706 (1994).

The Saidys contend § 7422(h) does not apply because the "underlying" tax treatment is not at issue, only the assessment. The statute, however, does not make a distinction between the underlying tax treatment and the assessment. See 26 U.S.C. § 7422(h) (stating that absent compliance with specifically enumerated code sections, " [n]o action may be brought for a refund attributable to partnership items") (emphasis added).

Finally, the Saidys offer a variety of hypothetical situations in which the IRS would make an illegal assessment from which the taxpayer would have no remedy under § 7422(h). Be that as it may, " [a]bsent its consent to suit, an action against the United States must be dismissed." Elias, 908 F.2d at 527.

III

Because we conclude that the district court did not have jurisdiction to entertain the Saidys' suit, we do not reach the merits of the Saidys' argument that the assessments were illegal.

CONCLUSION

The judgment of the district court is vacated and this case is remanded to it for dismissal for lack of jurisdiction.

REMANDED.