MEMORANDUM**

Appellant, Michael J. Pargett, did not file federal income tax returns for 1980 and 1981 despite having earned over $20,000 in each of those years. In 1984, the IRS conducted an audit and determined tax deficiencies of $5,572 for 1980 and $6,058 for 1981. The IRS claims to have sent a statutory notice of deficiency by certified mail to Pargett's last known address on May 17, 1985. Pargett does not dispute the assessment of his tax obligation, but claims never to have received any notices. Pargett sought to enjoin the IRS from levying on his wages. Pargett also sought a declaration that the government must return property already seized. The district court granted summary judgment to the government because Pargett's suit is barred by the Anti-Injunction Act and the Declaratory Judgment Act. Pargett appeals, and we affirm.

The Anti-Injunction Act provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." 26 U.S.C. Sec. 7421(a) (1988). The statute thus limits the remedy available for erroneous tax assessments to a suit for a refund. South Carolina v. Regan, 465 U.S. 367, 376 (1984). The only exception to this rule relevant in this case is contained in Secs. 6212 and 6213, which provide for the possibility of injunctive relief if the IRS has not mailed a notice of deficiency to the taxpayer.1

Thus the only material fact is whether the IRS mailed the statutory notice of deficiency by certified or registered mail to the taxpayer's last known address. 26 U.S.C. Sec. 6212(b); see also United States v. Zolla, 724 F.2d 808, 810 (9th Cir.1984) (statute requires only proper mailing by the IRS, not actual receipt by the taxpayer).

In spite of the "dispute" over this fact, the district court granted summary judgment for the government. The court considered the government's proof of mailing. The court also seemed particularly swayed by the fact that Pargett attached a copy of the date-stamped notice of deficiency to his memorandum in support of his petition for an injunction. The court indicated that it had viewed the evidence and all inferences drawn therefrom in the light most favorable to Pargett, but that it could "reach no other conclusion" than that Pargett was properly mailed and had received the notice of deficiency. C.R. 37, at 9. The court correctly followed the standards contained in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). There the Supreme Court indicated that summary judgment was appropriate unless the nonmoving party establishes evidence such that "a reasonable jury could return a verdict for the nonmoving party." Id. at 248. If the evidence is merely colorable or not significantly probative, summary judgment is properly granted. Id. at 249-50.

Pargett also sought a declaration that the government's tax claims were invalid. The Declaratory Judgment Act removes any authority of a federal court to grant declaratory relief in any controversy over Federal taxes. See 28 U.S.C. Sec. 2201(a)(1988).

The government requests sanctions on appeal under Fed.R.App.P. 38. The government contends that Pargett's arguments are frivolous and that we rejected similar arguments in Roat v. CIR, 847 F.2d 1379 (9th Cir.1988). The government does not contend that Pargett has litigated issues like these previously. In light of appellant's pro se status, we decline to impose sanctions on this appeal.

The judgment of the district court is AFFIRMED.