Unpublished Disposition, 894 F.2d 1344 (9th Cir. 1988)

MEMORANDUM^** 

Audrey D. Maisano appeals pro se the district court's dismissal of her action for lack of subject matter jurisdiction. Maisano's husband, Ralph M. Maisano, was a party to the district court proceedings but did not sign the notice of appeal. Maisano apparently signed the notice of appeal for herself and her husband. Anyissues pertaining to Ralph Maisano's tax liabilities are not considered in this appeal. See Carter v. Commissioner, 784 F.2d 1006, 1008 (9th Cir. 1986) (court lacked jurisdiction to hear wife's appeal where husband signed notice of appeal for both of them). We affirm.

On November 30, 1987, Audrey D. and Ralph M. Maisano filed a complaint and motion for preliminary and permanent injunction in the federal district court of the District of Nevada. The Maisanos sought to enjoin the Commissioner of Internal Revenue (CIR) from levying on the wages of Ralph Maisano to collect Audrey Maisano's taxes. On December 3, 1987, the CIR filed a motion to dismiss for lack of subject matter jurisdiction. After a hearing on the parties' motions, the district court granted the CIR's motion and dismissed the action without prejudice.

On January 6, 1988, the district court vacated the order of dismissal on its own motion and instructed the parties to file supplemental briefs in light of this court's ruling in Jensen v. IRS, 835 F.2d 196 (9th Cir. 1987). On May 24, 1988, the district court dismissed the action for lack of subject matter jurisdiction. Maisano timely appeals that dismissal.

The Anti-Injunction Act narrowly limits actions to enjoin the assessment and collection of taxes by the CIR. 26 U.S.C. § 7421. The district court must dismiss for lack of subject matter jurisdiction any suit that does not fall within one of the statutory exceptions or the judicial exception of the Act. Alexander v. "Americans United" Inc., 416 U.S. 752, 757-58 (1974), Jensen, 835 F.2d at 198.

The Act includes exceptions "as provided in sections 6212(a) and (c), 6213(a), 6672(b), 6694(c), and 7426(a) and (b) (1), and 7429(b)." 26 U.S.C. § 7421(a). Maisano contends that the exceptions in Sec. 6212(a), 6213(a) and 7426(a) and (b) apply here. The argument rests on the unsupported assertion that the term "deficiency", as used in Sec. 6212(a), contemplates the existence of returns filed by a taxpayer. Since the Maisanos did not file for 1982, 1983, or 1984, she argues, the CIR is prohibited from assessing their taxes and sending notices of deficiency and any notices sent are invalid.

The CIR has the authority to assess taxes against a taxpayer as shown on his tax return. See 26 U.S.C. § 6201(a) (1). If a taxpayer fails to file a return, the CIR is authorized to prepare a tax return for him. 26 U.S.C. § 6020(b) (1); Roat v. Commissioner, 847 F.2d 1379, 1381 (9th Cir. 1988). However, deficiency procedures set out in the Internal Revenue Code, 26 U.S.C. §§ 6211-6213, do not require the CIR to prepare a return on the taxpayer's behalf before determining a deficiency and issuing a valid notice of deficiency. Therefore, the district court did not err in determining that the deficiency notice issued to Maisano is valid.

Maisano also claims that she meets the statutory exception contained in 26 U.S.C. §§ 7426(a) (1) and (b) (1) because the CIR intends to levy her husband's wages to collect her tax deficiencies for 1983 and 1984.

When property has been subject to a wrongful levy, any person who has an interest or lien in the property, "other than the person against whom is assessed the tax out of which such levy arose," may seek to enjoin the United States from enforcing the levy. 26 U.S.C. §§ 7426(a) (1), (b) (1); Flores v. United States, 551 F.2d 1169, 1173-74 (9th Cir. 1977). The taxpayer himself has no remedy under 26 U.S.C. § 7426. Shannon v. United States, 521 F.2d 56, 59 (9th Cir. 1975), cert. denied, 424 U.S. 965 (1976).

Audrey Maisano is the person against whom the taxes have been assessed. The levy she challenges arose out of those assessments. Thus, she is precluded from seeking to enjoin the levy under 26 U.S.C. §§ 7426(a) (1) and (b) (1). The district court did not err in determining that Maisano had no remedy under Sec. 7426.

The judicial exception to the Act requires the taxpayer to demonstrate that: (1) under no circumstances can the government ultimately prevail on the merits; and (2) the taxpayer will suffer irreparable harm without injunctive relief. Maxfield v. United States Postal Serv., 752 F.2d 433, 434 (9th Cir. 1984).

At the district court hearing, the CIR presented evidence supporting the Maisanos' timely deficiency notice, assessment, and levy. Thus, the Maisanos have not established that the United States cannot prevail under any circumstances. See Enochs v. Williams Packing & Navigation Co., Inc., 370 U.S. 1, 7-8 (1962).

Maisano asserts irreparable harm had occurred and is still occurring. A statutory notice of deficiency was issued to Maisano on June 26, 1987. She therefore had an opportunity to petition the tax court to challenge the deficiency, but failed to do so. See 26 U.S.C. § 6213(a); Bob Jones Univ. v. Simon, 416 U.S. 725, 746 (1974). Moreover, she may still pay the tax and institute a refund suit against the CIR. See Cool Fuel, Inc. v. Connett, 685 F.2d 309, 314 (9th Cir. 1982). Both of these procedures provide adequate remedies at law for Maisano, and therefore the issue of irreparable harm is foreclosed. See Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982). Moreover, Maisano's allegations show only that she might suffer financial hardship if forced to pay her assessment. This is insufficient to warrant injunctive relief. See Monge v. Smyth, 229 F.2d 361, 366 n. 8 (9th Cir.), cert. denied, 351 U.S. 976 (1956). Therefore, the district court did not err in finding that Maisano failed to show irreparable harm.

AFFIRMED.