Unpublished Disposition, 933 F.2d 1013 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 933 F.2d 1013 (9th Cir. 1991)

Francis COSTANTINO, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 90-56093.

United States Court of Appeals, Ninth Circuit.

Submitted May 9, 1991.* Decided May 13, 1991.

Before JAMES R. BROWNING, GOODWIN and POOLE, Circuit Judges.


Francis Costantino appeals pro se the district court's summary judgment in favor of the United States in his action to quiet title. In the action, Costantino challenged the Internal Revenue Service's ("IRS") assessment of tax deficiencies against him and the procedural validity of the IRS's lien, seizure, and sale of certain real property. We have jurisdiction under 28 U.S.C. § 1291 and dismiss this appeal for lack of standing.

Costantino's only contention on appeal is that the district court erred in finding that the property levied on and sold by the IRS was owned by Costantino, rather than the separate property of his wife.1  Assuming his contention that the property is owned by his wife is true, however, Costantino lacks standing to assert a wrongful levy claim against the IRS because he lacks any cognizable right or interest in the property. See Warth v. Seldin, 422 U.S. 490, 498-499 (1975) ("plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interest of third parties"); Northern Plains Resource Council v. Lujan, 874 F.2d 661, 666 (9th Cir. 1989) (no standing to challenge validity of land patent unless plaintiff asserts property interest in land). Given that Costantino's wife is not a party to this action and that Costantino has specifically disavowed any interest in the property, we must dismiss this appeal for lack of standing. See id. at 668.2 



The panel unanimously finds this case suitable for decision 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


The district court acknowledged both Costantino's claim that he did not own the property and the IRS's counter-argument that Costantino therefore lacked standing to sue. The court, however, held that regardless of whether Costantino has standing, he had failed to provide the court with any evidence to support his claim that the property was the separate property of his wife


A third party whose property is wrongfully levied by the IRS can seek relief pursuant to 26 U.S.C. § 7426. Section 7426 actions, however, are not available to the taxpayer and generally are subject to a nine-month statute of limitations period. See 26 U.S.C. § 6532(c); Winebrenner v. United States, 924 F.2d 851, 853-855 (9th Cir. 1991)