                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                   UNITED STATES COURT OF APPEALS October 20, 2016
                                                                  Elisabeth A. Shumaker
                                TENTH CIRCUIT                         Clerk of Court


 JEFFREY T. MAEHR,

              Plaintiff - Appellant,

 v.                                                     No. 16-1204
                                               (D.C. No. 1:16-CV-00512-LTB)
 JOHN KOSKINEN, Commissioner of                           (D. Colo.)
 Internal Revenue; JOHN VENCATO,
 Revenue Agent; GINGER WRAY,
 Revenue Agent; JEREMY WOODS,
 Disclosure Specialist; WILLIAM
 SOTHEN, Revenue Agent; GARY
 MURPHY, Revenue Agent;
 THERESA GATES, Program
 Manager; SHARISSE TOMPKINS,
 Disclosure Manager; CAROLYN W.
 COLVIN, SSA Acting Administrator;
 WELLS FARGO BANK N.A.; JOHN
 AND JANE DOES 1-100,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and MORITZ, Circuit Judges.



      Appellant Jeffrey Maehr appeals the district court’s dismissal of his pro se


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
complaint as legally frivolous.

      In his complaint, Appellant challenges both the assessment of unpaid

income tax liabilities against him and the manner in which the government is

seeking to collect these unpaid liabilities.

      We agree with the district court that Appellant’s challenges to his

underlying tax liabilities are frivolous. Appellant has raised these same

arguments before, and we have rejected them before. See, e.g., Maehr v. IRS, 480

F. App’x 921, 923 (10th Cir. 2012). The cases and statutes cited by Appellant do

not change this analysis. We thus affirm the dismissal of all of Appellant’s

challenges to the validity of the previously adjudicated determination that he is

liable for unpaid income taxes.

      Most of Appellant’s challenges to the government’s collection efforts are

also legally frivolous. For instance, this court has previously rejected as frivolous

the argument that the IRS is only authorized to levy the property of government

employees, see James v. United States, 970 F.2d 750, 755 n.9 (10th Cir. 1992),

and Appellant’s argument that his Social Security retirement benefits cannot be

levied under 42 U.S.C. § 407(a) ignores the fact that this provision is expressly

superseded by 26 U.S.C. § 6334(c) in the tax-collection context. Appellant’s

reliance on 26 U.S.C. § 6331(h) is also misplaced. This statute permits a levy of

up to fifteen percent on certain payments listed in § 6334(a) that would otherwise

be completely exempt from levy; it places no limitations on the government’s

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authority to levy property that falls outside the express protections of § 6334(a),

including Social Security retirement benefits. The allegations in Appellant’s

complaint are also insufficient to establish a meritorious legal claim for relief

against Wells Fargo based on its role in the levies placed on Appellant’s accounts.

      However, we are persuaded that Appellant’s complaint raises one

potentially meritorious claim for relief relating to the manner in which the

government is seeking to collect his unpaid tax liabilities. Appellant alleges that

the government has placed two levies on the bank account where he receives his

disability payments from the Veterans’ Administration, seeking seizure of all

funds from this account despite the fact that the money in this account comes

almost entirely from VA disability payments that are statutorily exempt from

levy. See 26 U.S.C. § 6334(a)(10).

      In their brief on appeal, Appellees argue there are two reasons why we can

affirm the dismissal of this claim as frivolous: (1) the IRS did not place a direct

levy on any exempt VA disability payments; and (2) even if the IRS is improperly

levying exempt disability payments, “‘the only remedy available to the taxpayer

would be full payment of the assessment of his tax liability followed by a suit for

refund in district court.’” (Br. at 13 (quoting Marvel v. United States, 548 F.2d

295, 297 (10th Cir. 1977)) (brackets omitted).)

      We address the second of these arguments first. In Marvel, we considered

a business’s request for a preliminary injunction to prevent the IRS from levying

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on the business’s assets during the pendency of a district court lawsuit for refund

of a partial payment of employment taxes. We noted that the Anti-Injunction Act

appears on its face to prevent any such injunctive relief: “Except as provided in

sections 6121(a) and (c), 6213(a), and 7426(a) and (b)(1), no suit for the purpose

of restraining the assessment or collection of any tax shall be maintained in any

court by any person . . . .” 26 U.S.C. § 7421(a). We then noted that this

provision had been subject to “a long and variable history of judicial construction

ranging from strict enforcement to equation with the ordinary judicial standard for

equitable relief.” Marvel, 548 F.2d at 297. Most recently, however, the Supreme

Court had employed a strict construction of this Act, recognizing only a narrow

exception applicable where the taxpayer demonstrates “‘that under no

circumstances could the Government ultimately prevail’ and that ‘equity

jurisdiction otherwise exists.’” Id. (quoting Enochs v. Williams Packing &

Navigation Co., 370 U.S. 1, 7 (1962)). Given “the literal wording of the Act, the

strict pattern of construction adopted by the Supreme Court, and the great

deference afforded by the Supreme Court to the government’s interest in the

prompt collection and enforcement of taxes,” we refused to recognize any other

exception to the applicability of the Anti-Injunction Act. Id. at 300. We then

held that the business had failed to satisfy the demanding requirements of the

Williams Packing exception to the Act, and we thus held that the district court

had properly denied the requested injunctive relief. Id. at 300–01.

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      As for the language from Marvel that Appellees quote in their brief, this

language relates to the jurisdiction of the tax court in refund cases involving the

partial payment of employment or excise taxes, and it has no clear applicability

here. We also note that Appellees’ brief ignores the fact that Appellant’s

complaint sought relief other than injunctive relief, and they have not addressed

whether Appellant could potentially obtain other relief for the allegedly illegal

levying of the bank account where Appellant’s VA disability benefits are

deposited.

      However, Marvel’s broader holding—that the Anti-Injunction Act prevents

injunctive relief unless the plaintiff can satisfy the demanding Williams Packing

exception—is still at issue in determining whether or not Appellant can obtain

injunctive relief for this claim. And on this point, there is an unresolved question

regarding the possible distinction between directly levying exempt funds and

placing a levy on the bank account where such funds are deposited.

      If the IRS had placed a direct levy on Appellant’s VA disability benefits,

we have little doubt that Appellant would have been able to satisfy the Williams

Packing test and obtain injunctive relief. We see no possibility of the government

prevailing on the merits in such a case, and a disabled veteran will likely be able

to show that he will suffer irreparable injury if the government is not enjoined

from illegally levying the VA benefits on which he relies for his maintenance and

survival. See Comm’r v. Shapiro, 424 U.S. 614, 627 (1976) (stating that the

                                         -5-
second prong of the Williams Packing test is satisfied if “the taxpayer shows that

he would otherwise suffer irreparable injury”). However, here the government

has not directly levied Appellant’s VA benefits, and it suggests that it may do

indirectly what it may not do directly—that it may wait until exempt VA

disability benefits have been directly deposited into Appellant’s bank account and

then promptly obtain them through a levy on all funds in the bank account,

despite their previously exempt status. The government cites no authority to

support this argument, and the few cases we have found adopting such a rule, see,

e.g., Calhoun v. United States, 61 F.3d 918 (Fed. Cir. 1995) (unpublished table

decision); United States v. Coker, 9 F. Supp. 3d 1300, 1301–02 (S.D. Ala. 2014);

Hughes v. IRS, 62 F. Supp. 2d 796, 800–01 (E.D.N.Y. 1999), have not considered

whether this result is consistent with the Supreme Court’s opinion in Porter Aetna

Casualty & Surety Co., 370 U.S. 159 (1962), or with 38 U.S.C. § 5301’s

prohibition against the levy of veterans’ benefit payments either before or after

receipt by a beneficiary.

      We REVERSE AND REMAND for the district court to consider

Appellant’s non-frivolous legal claim that the IRS has improperly levied exempt

VA disability benefits by placing a levy on all funds in the bank account where

Appellant’s disability benefits are deposited. In so doing, we express no opinion

on the ultimate resolution of this claim or on the unresolved questions regarding

the availability of the types of relief Appellant has sought or may seek in an

                                         -6-
amended complaint addressing only this claim. We AFFIRM the dismissal of all

other claims and arguments as legally frivolous. Appellant’s motion to proceed in

forma pauperis on appeal is GRANTED. All other pending motions are

DENIED.

                                             ENTERED FOR THE COURT


                                             Monroe G. McKay
                                             Circuit Judge




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