Unpublished Disposition, 919 F.2d 145 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 919 F.2d 145 (9th Cir. 1990)

Wilbur H. SMITH and Dorothy W. Smith, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.

No. 89-15574.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 27, 1990.* Decided Nov. 29, 1990.

Before WALLACE, DAVID R. THOMPSON and TROTT, Circuit Judges.


Wilbur H. and Dorothy W. Smith appeal pro se the district court's order granting the United States' motion for summary judgment. In their action, the Smiths sought to enjoin the Internal Revenue Service (IRS) from levying on Wilbur's wages to collect taxes assessed against him, claiming Dorothy is entitled to her community property half of Wilbur's wages. The district court found that the IRS had properly levied on Wilbur's wages, and that the action was barred by the Anti-Injunction Act ("Act"). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm.

* Merits

In California, community property is liable for the separate debts of the husband. United States v. Stonehill, 702 F.2d 1288, 1299 (9th Cir. 1983); Babb v. Schmidt, 469 F.2d 957, 959 (9th Cir. 1974). Thus, the district court correctly ruled that the IRS could levy on Wilbur's wages, despite Dorothy's protest that she is entitled to her community property half of his wages. See Babb, 469 F.2d at 959.

The 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 of the Act is strictly enforced. See 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). Thus, ordinarily taxpayers are limited in district court "to suits for refund." United States v. Condo, 782 F.2d 1502, 1506 (9th Cir. 1986).

The only exception to this bar is the two-prong test announced in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962). Under Enochs, injunctive relief is available 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. Id.; see also Condo, 782 F.2d at 1506.

The Smiths argue the Act is unconstitutional and that it applies only to enemies of the United States. These arguments are meritless. The Act provides "no suit for the purpose of restraining the assessment or collection of any tax may be maintained in court by any person". 26 U.S.C. § 7421(a). The Supreme Court has noted the Act's language could scarcely be more explicit, Bob Jones Univ., 416 U.S. at 736, and the Act is given an almost literal effect. Id. at 737. Further, the Act has been repeatedly applied to bar suits by individual taxpayers such as the Smiths. See, e.g., Condo, 782 F.2d at 1506; Maxfield, 752 F.2d at 434; Stonecipher v. Bray, 653 F.2d 398, 401 (9th Cir. 1981), cert. denied, 454 U.S. 1145 (1982).

In addition, the Smiths argue (1) the assessments of tax liability were invalid, (2) they do not owe income tax because they are citizens and residents of California, (3) they were denied due process of law when they were denied a hearing prior to the assessments, and (4) the court improperly considered a hearsay declaration of an IRS employee. These arguments are all meritless.1 

First, an assessment of tax liability is entitled to a presumption of correctness. Paccar, Inc. v. Commissioner, 849 F.2d 393, 400 (9th Cir. 1988). Further, the Smiths must challenge the validity of the assessment in a suit for refund, not in an injunction suit. See Condo, 782 F.2d at 1506; Shannon v. United States, 521 F.2d 56, 59 (9th Cir. 1975). Second, the Sixteenth Amendment authorizes a non-apportioned direct income tax on United States citizens residing in the United States. In Re Becraft, 885 F.2d 547, 548 (9th Cir. 1989).

Third, the Smiths' due process rights are "adequately protected by the statutory scheme which allows [them] to contest [their] tax liability in Tax Court prior to paying the disputed tax or to sue for a refund in federal district court or in the Court of Claims." Stonecipher, 653 F.2d at 403. Fourth, the Smiths' claim the admission into evidence of the declaration of the IRS employee violated the hearsay rule must be raised in a suit for refund since the district court has no jurisdiction to hear a suit for injunction.

Because these arguments lack merit, the Smiths have failed to show that under no circumstances could the government prevail. See Enochs, 370 U.S. at 7. Further, since the Smiths have the option of paying the tax and bringing a suit for refund, they have failed to show irreparable harm. See id.; Condo, 782 F.2d at 1506. Accordingly, we conclude the district court correctly concluded that the Smiths' action for injunctive relief is barred by the Anti-Injunction Act. See, e.g., Maxfield, 752 F.2d at 434.

Finally, the Smiths argue the grant of the motion for summary judgment denied them their right to a jury trial, and that the trial judge was not impartial because her salary is diminished by federal taxation in violation of Article III. These arguments are also frivolous. The district court's grant of summary judgment does not violate the Smiths' right to a jury trial under the Seventh Amendment. Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1077 n. 3 (9th Cir. 1986). The taxation of judges does not diminish their salaries in violation of Article III and render them impartial. See Harris v. United States I.R.S., 758 F.2d 456 (9th Cir. 1985). Thus, we affirm the district court's summary judgment in favor of the United States.



The United States requests sanctions against the Smiths 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). The Smiths' claims are wholly without merit. Accordingly, we impose sanctions of $500.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In their complaint in district court, the Smiths also brought a claim to quiet title pursuant to 28 U.S.C. § 2410. They raised this argument again in their opposition to motion for summary judgment. However, because the Smiths do not raise this issue in their brief on appeal, it is deemed abandoned. See Wilcox v. Commissioner, 848 F.2d 1007, 1008 n. 2 (9th Cir. 1988) (issue deemed abandoned where pro se litigant failed to address it in brief)