Unpublished Disposition, 917 F.2d 28 (9th Cir. 1990)

MEMORANDUM^** 

Steven M. Oebermann appeals pro se the district court's order dismissing his action against the United States and the Commissioner of Internal Revenue (CIR). In the suit, Oebermann sought to have the district court (1) enjoin the CIR from instructing Oebermann's employer to withhold taxes from his wages and to disregard Oebermann's Form W-4 in which he claimed tax exempt status, (2) declare that the United States' claims to his monies were "of no validity whatsoever," and (3) enjoin the CIR from continued possession of funds already "seized" from his wages. The district court held that, under the Anti-Injunction Act, 26 U.S.C. § 7421, it lacked subject matter jurisdiction to grant the relief Oebermann requested. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

* Dismissal

We review de novo the district court's grant of a motion to dismiss. See Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988); Hartford Accident & Indem. Co. v. Continental Nat'l American Ins. Cos., 861 F.2d 1184, 1185 (9th Cir. 1988).

The Anti-Injunction Act prohibits a taxpayer from bringing a "suit for the purpose of restraining the assessment or collection of any tax...." 26 U.S.C. § 7421(a). "This section is strictly enforced." Maxfield v. United States Postal Serv., 752 F.2d 433, 434 (9th Cir. 1984); see also Bob Jones Univ. v. Simon, 416 U.S. 725, 736-37 (1974); Alexander v. "Americans United", Inc., 416 U.S. 752, 758 (1974); United States v. Condo, 782 F.2d 1502, 1506 (9th Cir. 1986); Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982). Thus, ordinarily taxpayers are "limited in their redress to suits for refund." Condo, 782 F.2d at 1506. The only exception to the rule is if the taxpayer can demonstrate that (1) under no circumstances could the government prevail and (2) the taxpayer will be irreparably harmed if the injunction is not granted. Enochs v. Williams Packing & Navigation Co. Inc., 370 U.S. 1, 7 (1962); Condo, 782 F.2d at 1506; Stonecipher, 653 F.2d at 401.

Here, the district court correctly concluded that Oebermann's action was subject to the Anti-Injunction Act. Despite Oebermann's protestations to the contrary, his action was brought to enjoin the CIR's assessment and collection of taxes and as such was subject to the Anti-Injunction Act. See, e.g., Bob Jones Univ., 416 U.S. at 738; Stonecipher, 653 F.2d at 401. Moreover, Oebermann's claim fails on both prongs of the Enoch exception to the Anti-Injunction Act because (1) Oebermann failed to show that under no circumstances could the CIR prevail and (2) Oebermann is not facing "irreparable harm" because he could sue for a refund pursuant to 26 U.S.C. § 7422.

In addition, Oebermann's contention that due process requires the CIR to grant him a hearing on its denial of Oebermann's Form W-4 claim of tax exempt status is without merit. See Stonecipher, 653 F.2d at 403. We find that Oebermann's "due process rights are adequately protected by the statutory scheme which allows him to contest his tax liability in the Tax Court prior to paying the disputed tax or to sue for a refund in federal district court or in the Court of Claims." Id. (citing Phillips v. Commissioner, 283 U.S. 589, 595-97 (1931)).

II

Sanctions

The CIR requests sanctions against Oebermann for bringing this appeal. This court has discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. § 1912; Wilcox, 848 F.2d at 1008-09 ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted).

Oebermann's claims are wholly without merit. In exercise of our discretion, however, we decline to impose sanctions.

AFFIRMED.