Unpublished Disposition, 904 F.2d 710 (9th Cir. 1990)

MEMORANDUM^** 

Donald and Rubbie Spencer ("the Spencers") and Terry Spencer appeal the district court's decision to set aside an Internal Revenue Service ("IRS") sale of the Spencers' land, quiet title to that land in the Spencers and to subject the title to all IRS tax liens. The district court did not address the Spencers' claim that the IRS liens on their property were invalid. The only claim that the Spencers raise on appeal is that the district court improperly refused to address whether the IRS liens were valid. The court refused to address that issue because the Spencers could not show that the United States had waived its sovereign immunity and had consented to a suit against the IRS regarding the validity of IRS tax assessments. Terry Spencer did not file any briefs in this appeal. We affirm the district court's decision and dismiss Terry Spencer's appeal for lack of prosecution.

BACKGROUND FACTS

In June of 1978, the IRS sent the Spencers a notice of deficiency stating that the Spencers owed taxes for both 1974 and 1975. The Spencers challenged the deficiency notice in the United States Tax Court but the Tax Court upheld the assessments. The Spencers did not appeal the Tax Court's decision.

In May 1981, the Spencers conveyed a parcel of land to their son Terry. The parcel contained two adjoining lots and on one of the lots the Spencers maintained their home. The Spencers continued to live in their home after the transfer.

In September 1981, the IRS assessed the Spencers approximately $10,400 in unpaid taxes for 1974 and 1975. The Spencers refused to pay and the IRS filed a Federal Tax Lien against the property held by Terry. The IRS began administrative collection procedures against the Spencers in 1984 and then levied against the property in 1986. The property was sold to Duane Wells and the IRS issued a quitclaim deed to Mr. Wells. Neither the Spencers nor Terry Spencer challenged the levy prior to the sale nor did any of them attempt to redeem their property as provided for under the Internal Revenue Code.

In January 1987, all three Spencers filed this action in the Superior Court for the State of Washington. The complaint asked the court to set aside the IRS' sale of the property to Wells, to quiet title in the property and to remove the liens on the property. The action was removed to the federal district court upon a petition by the IRS. The case went to trial and the district court ultimately set aside the transfer of the property to Terry Spencer and quieted title to the property in the Spencers subject to the IRS' liens.

STANDARD OF REVIEW

This court reviews de novo a district court's decision that it did not have jurisdiction to decide a party's claim. See, e.g., Kruso v. International Tel. and Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989).

DISCUSSION

A. The Spencers' Appeal.

Title 28 grants the district courts the authority to hear any suit arising under an internal revenue statute. 28 U.S.C. § 1340. However, section 1340 is not a waiver of sovereign immunity. De Masters v. Arend, 313 F.2d 79, 84 (9th Cir.), petition for cert. dismissed, 375 U.S. 936, 84 S. Ct. 341, 11 L. Ed. 2d 269 (1963). Therefore, the Spencers could only maintain their suit against the IRS if they could establish that the United States had waived its sovereign immunity for this type of case.

In this case, the Spencers can point to no statute that allows a taxpayer to challenge the validity of a tax assessment in a federal district court before paying that assessment.¹  The only statute that the Spencers could possibly rely on is Section 2410 of title 28. Section 2410 provides that the United States may be named a party in any suit where the United States has a mortgage or lien on the property at issue and the suit has been brought to quiet title, foreclose on the lien or mortgage or to partition or condemn the property. 28 U.S.C. § 2410(a). However, the courts have narrowly construed section 2410 in order to prevent a taxpayer from using the section as a means of indirectly attacking the validity of a tax assessment. See Zimmer v. Connett, 640 F.2d 208, 210 (9th Cir. 1981) (approving of Second Circuit case prohibiting a taxpayer from using section 2410 to challenge merits of tax assessment); see also Aqua Bar & Lounge, Inc. v. United States, 539 F.2d 935, 939-40 (3d Cir. 1976) (section 2410 only a waiver of sovereign immunity if taxpayer does not contest merits of tax assessment underlying the lien).

It is clear in this case that the Spencers are directly attacking the validity of the assessments underlying the IRS tax liens. The fact that the Spencers framed their claim as a quiet title action does not alter the content of their argument. Therefore, the Spencers cannot rely on Section 2410 to provide them with the necessary waiver of sovereign immunity. The district court correctly refused to hear the Spencers' claim that the IRS tax liens were invalid.

B. Terry Spencer's Appeal.

This circuit requires a party to timely meet all of the procedural requirements for an appeal. See 9th Cir.R.App.P. 42-1. If a party fails to timely file a brief or record, then this court has the discretion to dismiss the appeal for lack of prosecution. Id.; see also Stevens v. Security Pac. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976) ("Moreover, the appellant has filed briefs in this court which fail to comply with Fed. R. App. P. 28(a) (1), (2), & (3). This ground alone would justify dismissal of the appeal."); Danik, Inc. v. Hartmarx Corp., 875 F.2d 890, 891 (D.C. Cir. 1989) ("Danik ... has not filed a brief in this court; by separate order we dismiss its appeal for failure to prosecute.")

For this appeal, Terry Spencer has failed to file any briefs. This court has twice requested that Terry Spencer state the errors that he believes the trial court made. Terry Spencer has not responded to either request. There is nothing to suggest that Spencer did not receive either of the court's notices that he had to file a brief or that Spencer has a valid reason for failing to file any briefs. Therefore, we dismiss Terry Spencer's appeal for lack of prosecution.

AFFIRMED.