Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 279 (9th Cir. 1990)

BEK, INC., Charles L. Kellar, Bettye Kellar, Plaintiffs-Appellants,v.UNITED STATES of America, Internal Revenue Service, andtheir Agents, Servants and Employess, HazelWilson, Eric J. Kohn, and Does I throughX, Defendants-Appellees.

No. 87-2164.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 10, 1990.* Decided Dec. 27, 1990.

Before WALLACE, SKOPIL and PREGERSON, Circuit Judges.


Charles and Bettye Kellar and Bek, Inc. appeal the dismissal of their action against the United States, the Internal Revenue Service (IRS), and two IRS employees. The Kellars sought a tax refund and money damages, and alleged a claim for wrongful levy on behalf of Bek, Inc. We affirm.


An action for a tax refund may not be maintained "until a claim for refund has been duly filed with the Secretary, according to the provisions of law in that regard, and the regulations of the Secretary established in pursuance thereof." 26 U.S.C. § 7422(a) (1988). "The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof." 26 C.F.R. Sec. 301.6402-2(b) (1990).

The Kellars failed to file an administrative claim. They nevertheless argue that their request for information under the Freedom of Information Act (FOIA) provided the IRS with sufficient notice of their intent to seek a tax refund. See Sorenson v. Secretary of Treasury of United States, 752 F.2d 1433, 1439 (9th Cir. 1985) (an informal claim may be sufficient to satisfy the statutory requirement), aff'd, 475 U.S. 851 (1986). Although the Kellars' FOIA request did include a " [d]emand for refund of unlawfully assessed, liened and collected taxes," CR 28, Ex. III, we agree with the district court that such a demand, made as part of an FOIA request for information, does not satisfy the statutory requirements of a valid administrative claim for a tax refund. The refund claim was therefore properly dismissed. See Boyd v. United States, 762 F.2d 1369, 1371 (9th Cir. 1985) ("If the refund claim does not meet the requirements of the Code and the regulations, the suit must be dismissed because filing pursuant to the rules is a jurisdictional prerequisite.") (internal citations omitted).

The Kellars' claims for money damages against the United States and its employees also fail. Sovereign immunity protects the United States, as well as its agencies, officers, and employees from actions for money damages, unless there has been an express waiver of immunity and consent to suit. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). The Kellars have not carried their burden of pointing to such a waiver. See Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983) (per curiam), cert. denied, 466 U.S. 958 (1984). Moreover, the Kellars failed to effectuate personal service on the IRS employees. The district court was therefore without jurisdiction to render a judgment against them. Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987).

Finally, the wrongful levy claim was also properly dismissed. The Kellars failed to satisfy the statutory time requirements for contesting the alleged wrongful levy. See 26 U.S.C. § 6532(c) (1) (1988).



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 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 Ninth Circuit Rule 36-3