Unpublished Disposition, 931 F.2d 60 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 931 F.2d 60 (9th Cir. 1991)

Henry MOLKO, Jr., and Carol I. Molko, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.

No. 90-35603.

United States Court of Appeals, Ninth Circuit.

Submitted April 19, 1991.* Decided April 25, 1991.

Before POOLE, D.W. NELSON and NOONAN, Circuit Judges.


Henry and Carol Molko appeal pro se the district court's summary judgment in favor of the United States in their action to quiet title, pursuant to 28 U.S.C. § 2410, to property that was seized and sold by the Internal Revenue Service ("IRS") to satisfy taxes assessed against the Molkos. The Molkos contend that the IRS sold the property outside the county in which it was seized without the proper authority. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

We review the granting of a summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). Under 28 U.S.C. § 2410, the United States may be joined as a party to a quiet title action affecting property upon which it claims a lien. Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990). A taxpayer may use section 2410 only to challenge the procedural validity of a tax lien. Id. Here, the Molkos challenge the procedure by which the property was sold.1 

The Molkos's property was sold outside of the county in which it was located. Section 6335(d) of the Internal Revenue Code ("Code") provides: "The place of sale shall be within the county in which the property is seized, except by special order of the Secretary." 26 U.S.C. § 6335(d). Under the Code, "Secretary" means the Secretary of the Treasury or his or her delegate. 26 U.S.C. § 7701(a) (11) (B). Delegate means "any officer, employee, or agency of the Treasury Department duly authorized by the Secretary of the Treasury directly, or indirectly by one or more redelegations of authority." 26 U.S.C. § 7701(a) (12). The Secretary can delegate authority through the promulgation of Treasury Regulations. 26 C.F.R. Sec. 301.7701-9(b).

Section 301.6335-1(c) (1) of the Treasury Regulations provides:

The place of the sale shall be within the county in which the property is seized, except if it appears to the district director under whose supervision the seizure was made that substantially higher bids may be obtained for the property if the sale is held at a place outside the county, he may order that the sale be held in such other place. The sale shall be held at the time and place stated in the notice of sale.

Thus, the Secretary has delegated to the district director the authority to determine whether the sale should take place outside the county. The district director for Boise in turn delegated the authority to sign a Notice of Sale on seized property which is to be sold outside the county to the chief of the Collection Section pursuant to IRM 56(14)1.1(3).

Here, the chief of the Collection Section signed the Molkos's Notice of Sale in compliance with the delegation of authority from the district director and the Secretary. Further, the United States submitted the declaration of an IRS employee stating that the property was sold outside the county in which it was seized because it was determined that higher bids could be obtained if it was sold outside the county.

Accordingly, the district court correctly determined that the United States complied with all procedures for seizure and sale of the property and granted summary judgment for the United States.



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


Although the Molkos only challenge the procedural validity of the sale in their opening brief, they raise additional arguments in their reply brief. Specifically, they argue that they are not taxpayers and are not liable for the assessed taxes. Taxpayers, however, may not challenge the validity of an assessment in a quiet title action under section 2410. Elias, 908 F.2d at 527. Accordingly, the district court correctly dismissed these claims for lack of subject matter jurisdiction

The Molkos also argue that Idaho law regarding judgment debtors and writs of execution was not followed. Because this case involves a levy under a federal statute, however, federal law, not state law, applies. See Division of Labor Law Enforcement, Dep't. of Indus. Relations, State of Cal. v. United States, 301 F.2d 82, 85 (9th Cir. 1962).

Finally, the Molkos challenge the denial of their motion for reconsideration pursuant to Federal Rule of Civil Procedure 60. A Rule 60 motion is separately appealable. Taag Linhas Aereas de Angola v. Transamerica Airlines, Inc., 915 F.2d 1351, 1353 (9th Cir. 1990). Here, the Molkos did not file a second notice of appeal from the denial of their Rule 60 motion. Accordingly, we do not have jurisdiction to review the district court's denial of the motion.