Unpublished Disposition, 874 F.2d 816 (9th Cir. 1987)

MEMORANDUM^*

Plaintiff Shafer appeals pro se from the district court's grant of the Commissioner of Internal Revenue's motion to dismiss for lack of subject matter jurisdiction. We affirm.

FACTS

Shafer sought an injunction to prevent the IRS from seizing his assets to collect federal income taxes, which it claims are due from plaintiff for the years 1977-1983 inclusive. Shafer failed to file tax returns for these years. On July 13, 1977, Shafer filed a complaint seeking an injunction restraining collection of the assessed income tax liabilities and also made an ex parte application for a temporary restraining order (TRO) preventing the Commissioner from seizing his assets. Shafer contended that the government had failed to mail him a statutory notice of deficiency as required by 26 U.S.C. § 6212.

On July 13, the court orally ordered that the status quo be maintained restraining the government from seizing Shafer's property and restraining Shafer from disposing of any of his property. The court took this action because of the government's failure to provide sufficient evidence that the IRS had mailed a deficiency notice to Shafer. The judge continued the hearing to July 27, 1987. On July 16, 1987, the district court continued the TRO subject to certain conditions and again continued it at the hearing on July 27, 1987.

At the July 27 hearing, the government presented evidence that it had mailed a notice of deficiency to Shafer by furnishing a date-stamped copy of the notice of deficiency directed to Shafer's last known address, and a redacted "certified mail list" stamped by the United States Postal Service indicating that the IRS delivered the notice of deficiency addressed to Shafer at his last known address.

The district court ordered the government to provide within ten days a declaration from the Post Office "that the post office stamp on your internal document [certified mail list] indicating that the notice of deficiency was sent to Mr. Shafer and would have been under regular circumstances." [Reporter's Transcript of July 27, 1987 hearing.] The court said it would deny plaintiff's request for injunctive relief upon receipt of the declaration and that the government would then be free to sell the house. Id.

Two days later, the government submitted the declaration of Alma D. Chapman, a United States Postal Service Supervisor, who stated that under ordinary business practices, the stamp evidenced that a notice of deficiency was mailed to Shafer on June 10, 1986. On August 19, 1987, the court issued an order allowing the IRS to enter Shafer's premises and seize his property. It is unclear from the record whether this order was intended to supersede the TRO or whether the district court was aware that there still was an outstanding TRO.

Thereafter, the government filed a motion to dismiss Shafer's complaint as barred by the Anti-Injunction Act. Shafer then filed an ex parte application for rescission of the court's order allowing the IRS to enter Shafer's premises to effect a levy.

On October 8, 1987, the court vacated the TRO as of July 29, 1987, based on the court's stated intention at the July 27 hearing that it would deny injunctive relief upon receipt of a post office supervisor's declaration verifying the mailing of the notice of tax deficiency to Shafer. On November 11, 1987, the district court granted the Government's motion to dismiss Shafer's complaint on the basis that it lacked jurisdiction under the Anti-Injunction statute since the government had established to the court's satisfaction that it had mailed the notice of deficiency. Shafer timely appeals.

DISCUSSION

A taxpayer may not initiate a suit for the purpose of restraining the assessment or collection of any tax unless inter alia the IRS fails to follow statutory notice procedures. See 26 U.S.C. §§ 7421, 6212(a), 6213(a). The IRS must send a notice of deficiency to the taxpayer by certified or registered mail. 26 U.S.C. § 6212(a). The notice, if properly mailed, is sufficient so long as it is mailed to the taxpayer's last known address. Section 6212(b) (1). Such notice is valid even if not received by the taxpayer. United States v. Zolla, 724 F.2d 808, 810 (9th Cir.), cert. denied, 469 U.S. 830 (1984); Cool Fuel, Inc. v. Connett, 685 F.2d 309, 312 (9th Cir. 1982).

Shafer contends the district court erred in dismissing his request for injunctive relief as barred by the Anti-Injunction Act because the government failed to provide him with the statutory notice of deficiency. Shafer also argues that where the postal service is at fault for non-delivery of a properly addressed notice of deficiency, the 90-day period for filing a petition in tax court will run from the date of actual receipt. Shafer finds support for his argument in a Tax Court opinion and a Seventh Circuit opinion. See McPartlin v. Commissioner, 653 F.2d 1185, 1191 (7th Cir. 1981); Estate of McKaig v. Commissioner, 51 T.C. 331, 335 (1968).

This rule is not the law of this circuit, and now has been rejected by the Fifth Circuit which dismissed the court's comments in McPartlin regarding the effect of postal service error as dicta. See Keado v. United States, 859 F.2d 1209, 1212 n. 9 (5th Cir. 1988).

The procedural posture of this case must give us some pause. The court has not simply relied on the pleadings to dismiss the complaint for lack of subject matter jurisdiction. It has required the government to establish by the submission of admissible evidence that the notice required by statute was given. It, in effect, has converted the proceeding into one for summary judgment. If the evidence is adequate and unrefuted and the taxpayer has been " 'fairly apprised that the court would look beyond the pleadings and thereby transform the 12(b) motion to dismiss into one for summary judgment,' " Cool Fuel, 685 F.2d at 312, we can affirm the dismissal. The district court found that the government provided strong circumstantial evidence that the IRS mailed the notice of deficiency to Shafer by certified mail. The government produced a date-stamped copy of the notice of deficiency directed to Shafer's last known address and the declaration of a postal worker who stated that the certified mail list established that through ordinary business practices a notice of deficiency was mailed to Shafer. Shafer, rather than seeking to counter the evidence, insisted that the law required actual receipt by the taxpayer.

Under the circumstances, we conclude the government's evidence is adequate and unrefuted, but Shafer also contends that the district court violated his rights under the due process clause of the Fifth Amendment by limiting his oral argument at the hearing on the motion to dismiss. According to Shafer, he was denied the right to speak in his own defense, to present evidence, and to challenge witnesses and evidence. Shafer also contends that he was deprived of representation of legal counsel because he was given less than 24 hours (weekend excluded) notice.

The Constitution does not require oral argument in every case where only frivolous questions of law, or even substantial questions of law are raised. See FCC v. Station WJR, the Goodwill Station, Inc., 337 U.S. 265, 276 (1949).

Here, Shafer has failed to offer any evidence or suggest what evidence he could adduce if given an opportunity which would refute the government's evidence of proper mailing. Shafer was given adequate opportunity prior to the district court's dismissal to conduct discovery and introduce evidence. He chose not to do so. Therefore, we conclude that the district court did not err by curtailing Shafer's oral argument at the hearing on the motion to dismiss.

Shafer also contends that the district court erred in dismissing his action because it falls within the equity exception to the Anti-Injunction Act. An exception to the Anti-Injunction Act exists if a taxpayer (1) is certain to succeed on the merits; and (2) can demonstrate that the tax collection would cause him irreparable harm. South Carolina v. Regan, 465 U.S. 367, 374 (1984). Shafer has advanced no theory nor suggested that he has any evidence to support his contention that he would likely succeed on the merits or that the tax collection would cause him irreparable injury since he can pay the tax and sue for a refund. The district court properly dismissed the action for lack of jurisdiction pursuant to the Anti-Injunction Act.

Shafer also contends that the district court erred in vacating the TRO it had entered because he was not provided with adequate notice that the TRO would be vacated. In light of subsequent events we find this issue is moot.¹ 

Finally, Shafer contends that the district court judge erred in failing to recuse himself because of his alleged bias and prejudice against Shafer. We disagree.

We review for abuse of discretion a judge's failure to disqualify himself. See Herrington v. Sonoma County, 834 F.2d 1488, 1501 (9th Cir. 1987), amended on other grounds 857 F.2d 567 (1988), cert. denied, 57 U.S.L.W. 3621 (U.S.1989). A judge must disqualify himself "in any proceeding in which his impartiality might reasonably be questioned," or "where he has a personal bias or prejudice concerning a party." Id.; 28 U.S.C. § 455(a), (b) (1). However, neither a party's attack on a judge's impartiality nor a finding of actual bias can be based on information and beliefs which the judge acquired while acting in the case in his judicial capacity. United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986).

Shafer's claim against the judge is entirely based on the judge's actions in this case. There is no basis for recusal.

We affirm the district court's dismissal of plaintiff's action for lack of subject matter jurisdiction.

AFFIRMED.