923 F2d 864 Weiler v. United States

923 F.2d 864

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Henry A. WEILER and Frances L. Weiler, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.

No. 90-55481.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 11, 1991.*
Decided Jan. 15, 1991.

Before HUG, POOLE and NOONAN, Circuit Judges.


Advertisement
view counter
1

MEMORANDUM**

2

Henry A. and Frances L. Weiler appeal pro se the district court's summary judgment in favor of the United States. In their action, the Weilers sought to enjoin the Internal Revenue Service (IRS) from levying on their wages and pension distributions to collect taxes assessed against them for the 1981 tax year. We have jurisdiction pursuant to 28 U.S.C. Sec. 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.

3

The Anti-Injunction Act ("Act") prohibits a taxpayer from bringing a "suit for the purpose of restraining the assessment or collection of any tax...." 26 U.S.C. Sec. 7421(a). 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).

4

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.

5

The Weilers fail to show the Enochs exception is applicable in this case. They argue (1) the Certificate of Assessment provided by the IRS as evidence of their assessment constitutes inadmissible hearsay, (2) Frances is not liable for the tax because her name does not appear on the Certificate of Assessment, and (3) the district court improperly denied their motion to compel discovery. These arguments are all meritless.

6

First, the Certificate of Assessment is admissible as an official record of a public agency. See United States v. Neff, 615 F.2d 1235, 1241 (9th Cir.1980), cert. denied, 447 U.S. 925 (1980). Such certificates have been admitted as evidence of an assessment in numerous cases in this circuit. See, e.g., Elias v. Connett, 908 F.2d 521, 524 (9th Cir.1990); United States v. Voorhies, 658 F.2d 710, 715 (9th Cir.1981). Second, because the Weilers filed a joint return for 1981, Frances is jointly and severally liable for the tax assessed. See 26 U.S.C. Sec. 6013(d)(3). Thus, whether her name appeared on the Certificate of Assessment is irrelevant. Finally, the district court did not abuse its discretion in denying the Weilers' Fed.R.Civ.P. 56(f) application to compel discovery. See Visa Int'l Serv. Ass'n v. Bankcard Holders of America, 784 F.2d 1472, 1475 (9th Cir.1986) (denial of Rule 56(f) application proper "where it was clear that the evidence sought was almost certainly nonexistent or was the object of pure speculation.") The Weilers sought discovery of documents recording their assessment. Such evidence, however, had already been provided by the IRS and included in the record.

7

Because their arguments lack merit, the Weilers have failed to show that under no circumstances could the government prevail. See Enochs, 370 U.S. at 7. Further, since the Weilers 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. Therefore, the Enochs exception does not apply here.


Advertisement
view counter
8

The Weilers' attempt to invoke jurisdiction under 28 U.S.C. Sec. 2410 by characterizing their suit as one to quiet title does not save their action from the bar of the Act. "A taxpayer may not use a section 2410 action to collaterally attack the merits of an assessment." Elias, 908 F.2d at 527 (citing United States v. Polk, 822 F.2d 871, 872 n. 1 (9th Cir.1987) ). A taxpayer may only use section 2410 to challenge the procedural validity of a tax lien. Id. Here, the Weilers challenge the validity of their tax assessment, not of the lien. Any challenge to the validity of their assessment must be brought in a suit for refund. See Zimmer v. Connett, 640 F.2d 208, 210 (9th Cir.1981). Thus, the Weilers cannot sue the United States under section 2410.

9

Accordingly, the Weilers' action for injunctive relief is barred by the Anti-Injunction Act, and the district court correctly granted summary judgment in favor of the United States.

10

AFFIRMED.

*

The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(1); 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