Unpublished Disposition, 902 F.2d 1578 (9th Cir. 1990)

MEMORANDUM^** 

Alfred Fulgham appeals pro se the district court's order dismissing his complaint with prejudice for lack of subject matter jurisdiction. This court reviews de novo the district court's dismissal of a complaint for lack of subject matter jurisdiction. McIntyre v. United States, 789 F.2d 1408, 1410 (9th Cir. 1986) (citation omitted). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm with sanctions.

* Merits

Fulgham's suit against the Internal Revenue Service (IRS) is barred by the doctrine of sovereign immunity. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). Congress must specifically waive sovereign immunity before the IRS, as a federal agency, may be sued eo nomine. See Black v. Guerre, 342 U.S. 512, 514-15 (1952) (when Congress authorizes one of its agencies to be sued eo nomine, it does so explicitly).

Here, Fulgham has not shown that Congress has provided a statutory waiver of sovereign immunity in his action against the IRS. 28 U.S.C. § 1346(a) (1) provides a specific grant of jurisdiction to federal district courts over actions for the refund of any internal-revenue tax allegedly erroneously or illegally assessed or collected. I.R.C. Sec. 7422(a) grants a waiver of sovereign immunity to permit jurisdiction under 28 U.S.C. § 1346(a) (1). Under section 7422(a), however, the waiver is contingent upon the taxpayer's filing of an administrative claim for refund. See 26 U.S.C. § 7422; Boyd v. United States, 762 F.2d 1369, 1371 (9th Cir. 1985). Because Fulgham has not alleged that he has filed a claim for refund, the district court was without jurisdiction to consider his claim for refund under this section 7422(a). Id.

Additionally, the Federal Torts Claim Act (FTCA), does not provide a basis for jurisdiction over suits for recovery in tort against the IRS. " [A]ny claim arising in respect of the assessment or collection of any tax ..." is exempted from the provisions of the FTCA. 28 U.S.C. § 2680(c).

Moreover, to the extent that Fulgham's complaint can be construed as stating a claim under 26 U.S.C. § 7246 for wrongful levy, his claim fails.¹  A claim for wrongful levy under section 7426 is not available to assessed taxpayers. See 26 U.S.C. § 7426; Shannon v. United States, 521 F.2d 56, 59 (9th Cir. 1975), cert. denied, 424 U.S. 965 (1976).

Finally, Fulgham's request for injunctive relief to enjoin the IRS from levying on his assets is barred by the Anti-Injunction Act, 26 U.S.C. § 7421(a).²  Fulgham has not demonstrated that under no circumstances could the IRS prevail on its claim that he is liable for taxes. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7-8 (1962). Also, Fulgham has an adequate remedy at law in the form of paying his taxes and initiating a proper suit for refund. Cool Fuel, Inc. v. Connett, 685 F.2d 309, 314 (9th Cir. 1982). Therefore, the district court did not err in dismissing Fulgham's complaint against the IRS for lack of subject matter jurisdiction.

On appeal Fulgham reiterates his contention below that he is not a "taxpayer," and that the IRS thus wrongfully levied upon his wages in order to satisfy his income tax deficiencies. This argument is frivolous. The I.R.C. defines a taxpayer as "any person subject to any Internal Revenue tax." 26 U.S.C. § 7701(a) (14). Taxable income is defined as gross income minus allowable deductions. See 26 U.S.C. § 63(a). Gross income includes all income from whatever source. 26 U.S.C. § 61(a) (1). Fulgham's wages are income subject to federal income tax. See Wilcox v. Commissioner, 848 F.2d 1007, 1008-09 (9th Cir. 1988). Hence, his contention that he is not a taxpayer subject to the Internal Revenue laws is frivolous. Id.

II

Sanctions

The IRS asks this court to impose sanctions on Fulgham for pursuing a frivolous appeal. We have discretion to impose sanctions pursuant to 28 U.S.C. § 1912 and Fed. R. App. P. 38, even where the appellant appears pro se. See Grimes v. Commissioner, 806 F.2d 1451, 1454 (9th Cir. 1986). Sanctions are appropriate when the appeal is frivolous, i.e., the result is obvious or the arguments are "wholly without merit." Wilcox v. C.I.R., 848 F.2d 1007, 1009 (9th Cir. 1988). Because Fulgham's arguments before this court are frivolous, we impose sanctions against him in this appeal in the amount of $1,500.00.

AFFIRMED with sanctions.