Unpublished Disposition, 878 F.2d 385 (9th Cir. 1989)

MEMORANDUM^** 

Judy H. Genger appeals the district court's dismissal of her tax action for failure to state a claim on which relief may be granted. Genger sued the Commissioner of the Internal Revenue Service (the Commissioner) for recovery of property seized in satisfaction of her tax liability, as well as injunctive and declaratory relief. Genger contends that the district court erred in dismissing her complaint on the grounds specified without first granting declaratory relief regarding her alleged status as an innocent spouse and a non-taxpayer. The Commissioner contends that the dismissal was proper on the grounds that: (1) injunctive relief was not available; and (2) Genger failed to amend her complaint to name the United States rather than the Commissioner as defendant and to allege that she had previously requested a refund from the Internal Revenue Service (IRS). We review de novo the dismissal of a complaint for failure to state a claim upon which relief may be granted. Rider v. United States Postal Service, 862 F.2d 239, 240 (9th Cir. 1988), cert. denied, --- S. Ct. ----, 1989 U.S.L.W. 56915 (U.S. May 30, 1989) (No. 88-1458).

* Injunctive Relief

As a general rule, "... no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person...." 26 U.S.C. § 7421(a); South Carolina v. Regan, 465 U.S. 367, 376-77 (1984). A pre-enforcement injunction will only be granted upon a showing that: (1) under no circumstances can the government prevail on the merits; and (2) irreparable injury to the petitioner will result if the injunction is not allowed. United States v. American Friends Service Committee, 419 U.S. 7, 9-10 (1974); Maxfield v. United States Postal Service, 752 F.2d 433, 434 (9th Cir. 1984). Genger made no showing that the government could not feasibly prevail on its assertion that she was liable with her husband for payments on their joint tax returns. Moreover, she did not demonstrate that legal remedies were inadequate. Because Genger did not meet either requirement of the exception to the non-injunction rule, the district court's dismissal of this aspect of her suit was correct. See id.; see also Cool Fuel, Inc. v. Connett, 685 F.2d 309, 314 (9th Cir. 1982) (payment of tax followed by refund suit is deemed adequate remedy at law).¹ 

II

Return of Property and Wages

Unless a taxpayer has filed a claim for a refund with the IRS, the district court lacks jurisdiction over a refund suit. 26 U.S.C. § 7422(a); Yuen v. United States, 825 F.2d 244, 245 (9th Cir. 1987). A suit for the recovery of an allegedly illegal tax collection or assessment must be brought against the United States rather than an officer or employee of the United States. 26 U.S.C. § 7422(f) (1). Because Genger failed to amend her complaint such that it named the United States rather than the Commissioner and demonstrated her previous filing of an IRS refund claim, the district court did not err in dismissing Genger's claim to the extent she sought recovery of garnished wages. See 26 U.S.C. §§ 7422(a), (f) (1); Yuen, 825 F.2d at 245.

III

Declaratory Relief

Genger contends that the primary relief she sought was a finding by the district court that she was: an innocent spouse, by virtue of the fact that her husband forced her to sign a joint tax return; and a non-taxpayer, since she claimed no community property interest on her husband's wages for the years at issue. Genger argues that the district court erred in not granting the declaratory relief sought, regardless of its jurisdiction to grant a refund or injunctive relief.

Genger's contention lacks merit. Because the determination of deficiency against Genger and her husband represented a final decision by the tax court that she was not an innocent spouse and was jointly liable for the deficiency, the district court had no jurisdiction to grant the declaratory relief sought. See Enterprises Unlimited, Inc. v. Davis, 340 F.2d 472, 474 (9th Cir. 1965) (district courts have no jurisdiction to review Tax Court decisions); see also Abatti v. Commissioner, 859 F.2d 115, 117-18 (9th Cir. 1988) (once decision of Tax Court becomes final, proper recourse is for taxpayer to petition the Tax Court to vacate the decision).² 

AFFIRMED.