                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       December 20, 2006
                              FO R TH E TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                          Clerk of Court

    SALOM ON L. RA EL,

               Plaintiff-Appellant,
                                                            No. 06-2086
      v.                                          (D.C. No. CIV-05-682-LH/W PL)
                                                             (D . N.M .)
    JO ELLA M . A PO D A CA ,

               Defendant-Appellee.



                                OR D ER AND JUDGM ENT *


Before KELLY, L UC ER O, and HA RTZ, Circuit Judges.




           Plaintiff-appellant Salomon L. Rael, proceeding pro se, appeals the order

entered by the district court dismissing his complaint under Fed. R. Civ. P.

12(b)(1) for lack of subject matter jurisdiction. Plaintiff also appeals the order

entered by the district court denying his motion for reconsideration. W e have

jurisdiction over this appeal under 28 U.S.C. § 1291. W e affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore submitted without oral argument. This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and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.
                                   I. Background.

      On January 3, 2005, after having previously assessed plaintiff with an

unpaid federal income tax liability for 2001 in the amount of $10,448.39, plus

interest and a late penalty, the Internal Revenue Service (IRS) sent plaintiff a

“Final Notice of Intent to Levy and Notice of . . . Right to a Hearing.” R., Doc.

5, Ex. 4. The notice informed plaintiff that: (1) the IRS w as intending to levy on

his property thirty days after the date of the notice; and (2) plaintiff had the right

to “[a]ppeal the intended levy . . . by requesting a Collection Due Process hearing

within 30 days from the date of the [notice],” id. On January 30, 2005, the IRS

received a timely request for a collection due process hearing from plaintiff.

      As summarized in the “Notice of Determination” that the IRS subsequently

sent to plaintiff, on April 7, 2005, IRS settlement officer Joella M . Apodaca, the

named defendant in this case, sent a letter to plaintiff informing him that: (1) a

telephone conference had been set for M ay 3, 2005; and (2) he had been “given a

deadline of April 20, 2005 to provide the legitimate issues [he] wished to raise

and to provide financial information,” id., Ex. 2 at 3. On April 20, 2005, plaintiff

sent defendant Apodaca a letter informing her that he was “request[ing] a face to

face conference.” Id. On April 26, 2005, defendant Apodaca sent a letter to

plaintiff advising him “of the procedures for a face to face conference.”

Id. at 3-4. Defendant Apodaca also informed plaintiff that he must submit “issues

relevant to paying [his] tax liability . . . prior to the hearing date,” because

                                          -2-
“[f]ace-to-face conferences are not allowed if the only items that a taxpayer raises

are frivolous or groundless.” Id., Doc. 1, Ex. 3 at 1.

       On M ay 3, 2005, plaintiff and defendant Apodaca participated in a

telephone conference.

       During the telephone conference, the taxpayer stated that he wanted a
       face to face conference. The taxpayer was advised that based on a
       review of the administrative file and information provided to date
       that he had only raised frivolous arguments. The taxpayer was asked
       again of the legitimate issues he wished to raise. The taxpayer
       responded that he was not willing to discuss this. The taxpayer was
       asked if he was waiving his right to a conference and the taxpayer
       responded that he wanted a face to face conference only. The
       taxpayer was advised that . . . he was not entitled to a face to face
       conference based on the frivolous arguments raised. . . . The
       taxpayer was advised of his appeal rights and advised that it is
       Appeals determination that the Director of the Service Center was
       correct when he/she proposed to serve a levy.

Id., Doc. 5, Ex. 2 at 4.

       On M ay 12, 2005, the IRS formalized its decision by sending plaintiff a

“Notice of Determination” advising him that “[t]he Director of the Service Center

was correct when he/she proposed to serve a levy.” Id. at 2. Plaintiff was further

informed that he could “dispute this determination in court [by] fil[ing] a petition

with the United States Tax Court . . . within 30 days from the date of [the

notice].” Id. at 1.

       Plaintiff did not file a timely petition with the Tax Court. Instead, on June

17, 2005, he filed a “Complaint for Violation of Civil Rights” in the United States

District Court for the District of New M exico. Id., Doc. 1. Defendant Apodaca

                                          -3-
was the only defendant named in plaintiff’s complaint. Plaintiff alleged that the

district court had jurisdiction over his complaint under 28 U.S.C. § 1331 [federal

question jurisdiction] and 28 U.S.C. § 1361 [federal mandamus statute]. Id. at 1,

¶ 1.

       In his complaint, plaintiff alleged that “[t]he actions of Defendant

[Apodaca in denying him a face-to-face collection due process hearing] resulted

in the deprivation of the Plaintiff’s right to due process as guaranteed by the Fifth

Amendment of the United States Constitution, resulting in the willful denial of his

administrative remedy as codified in 26 U.S.C. § 6330.” Id. at 4, ¶ 18. As a

remedy for this alleged procedural due process violation, plaintiff requested that

the district court enter an order directing the IRS “[to] provide a fair hearing . . .

for all assessments, penalties and interest against Plaintiff for tax year 2001.”

Id. at 5, ¶ 3.

       Defendant Apodaca subsequently filed a motion to dismiss plaintiff’s

complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.

After carefully analyzing the motion and the underlying administrative

proceedings related to the IRS’s proposed income tax levy, the district court

granted the motion and dismissed plaintiff’s complaint without prejudice. The

district court explained its reasoning as follow s:

              Plaintiff characterizes his suit as a civil rights controversy,
       stating that the purpose of his suit is not to seek a damage award,
       dispute his tax liability, or restrain or stay assessment or collection

                                           -4-
      of any tax. However, the IRS has already issued a “Notice of
      Determination” to Plaintiff. The relief Plaintiff seeks, an order
      requiring that the IRS provide a fair hearing, would, if granted,
      effectively appeal the IRS determination and restrain collection of
      taxes.

              W ith few exceptions, the Internal Revenue Code prohibits suits
      in any court by any person for the purpose of restraining the
      assessment or collection of any tax. 26 U.S.C. § 7421(a). Under one
      of those exceptions, a person may appeal a determination of an [IRS]
      appeals officer to the Tax Court or to a district court of the United
      States if the Tax Court does not have jurisdiction of the underlying
      tax liability. 26 U.S.C. § 6330(d)(1). Plaintiff does not allege that
      the Tax Court does not have jurisdiction of the underlying tax
      liability. And, this Court does not have jurisdiction over civil claims
      challenging taxes unless litigants first pay the assessed tax and then
      raise the claims in a refund suit.

Id., Doc. 11 at 3 (citations omitted from first paragraph).

      Plaintiff subsequently filed a motion for reconsideration, arguing that the

district court had subject matter jurisdiction over his complaint under the federal

mandamus statute, 28 U.S.C. § 1361, because he was merely seeking an order

from the district court to compel defendant Apodaca to do her job and provide

him with a face-to-face collection due process hearing. Id., Doc. 12 at 1-2. The

district court rejected plaintiff’s argument and denied his motion for

reconsideration. Specifically, after noting that “[t]he test for jurisdiction is

whether mandamus would be an appropriate means of relief,” id., Doc. 14 at 3,

the court concluded that “[m]andamus is not an appropriate form of relief in this

case,” id. First, the court found that “[p]laintiff has not demonstrated that he has

a clear right to a face-to-face CDP hearing. CDP hearings are informal in nature

                                          -5-
and do not require . . . a face-to-face meeting.” Id. Second, the court found that

“[p]laintiff also has not demonstrated that he does not have an adequate remedy.

The tax code provides for judicial review of his determination.” Id. Finally, the

court found that “[t]he Tax Court also has jurisdiction over Plaintiff’s claim of

violation of civil rights, i.e. denial of due process.” Id. at 4.

                                     II. Analysis.

      W e review the district court’s dismissal for lack of subject matter

jurisdiction de novo. See High Country Citizens Alliance v. Clarke, 454 F.3d

1177, 1180 (10th Cir. 2006). Likewise, the issue of whether the Anti-Injunction

A ct, 26 U .S.C . § 7421(a), bars plaintiff’s claims “is a question of law that we

review de novo.” Ambort v. United States, 392 F.3d 1138, 1140 (10th Cir. 2004).

Having conducted the required de novo review, we conclude that the district court

correctly disposed of this case in its thorough and well-reasoned orders. As

explained below, however, our analysis of plaintiff’s claim for mandamus relief is

different than the district court’s, as we conclude that the claim is barred by the

Anti-Injunction Act.

      Subject to certain statutory and judicial exceptions that are not applicable

here, 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 by any

person.” 26 U.S.C. § 7421(a). As w e have recognized, if a taxpayer files a claim

in a federal district court that falls within the ambit of the Anti-Injunction Act and

                                           -6-
no exception applies, the court must dismiss the claim for lack of subject matter

jurisdiction. Ambort, 392 F.3d at 1140-41; see also Sterling Consulting Corp. v.

United States, 245 F.3d 1161, 1167 (10th Cir. 2001) (stating that the Anti-

Injunction Act “specifically divests the district court of jurisdiction in order to

prevent pre-assessment judicial interference”).

      As set forth above, the IRS informed plaintiff in its “Notice of

Determination” that the Director of the Service Center was correct when he/she

proposed to serve a levy on plaintiff’s property, and plaintiff was instructed that

he could appeal that determination by filing a timely petition with the Tax Court.

This was in accordance with the judicial review provision in 26 U.S.C.

§ 6330(d)(1) (2000). 1 That provision provides that the Tax Court has exclusive

jurisdiction over appeals of levy determinations as long as it has jurisdiction over

the underlying tax liability, True v. Comm’r of Internal Revenue, 108 F. Supp. 2d

1361, 1364 (M .D. Fla. 2000), and it is well established that “a case involving

income taxes . . . must be filed in the Tax Court, and the district court lacks

jurisdiction.” Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004) (per curiam);

accord M arino v. Brown, 357 F.3d 143, 146 (1st Cir. 2004) (per curiam)

(concluding that Tax Court has exclusive jurisdiction over appeals from collection




1
      Section 6330(d)(1) was amended on August 17, 2006. The amended statute
has no effect on this appeal.

                                          -7-
due process determinations involving income taxes); White v. United States, 250

F. Supp. 2d 919, 921-22 (M .D. Tenn. 2003) (same).

      Plaintiff cannot escape this jurisdictional bar by arguing that “his case does

not involve taxes per se, but only his right to a due process hearing. Despite

[plaintiff’s] assertions to the contrary, the crux of his dispute w ith the IRS is

obviously his income tax liability.” Voelker, 365 F.3d at 581. This does not

mean that plaintiff w as without a remedy for any alleged procedural due process

violations, however. To the contrary, as the Seventh Circuit has recognized,

“[plaintiff] could have raised these same due process arguments had he properly

filed his case in the Tax Court.” 2 Id. at 582; accord True, 108 F. Supp. 2d at

1364 n.4 (noting that taxpayer w as free to raise procedural due process arguments

in Tax Court as part of appeal concerning collection due process hearing); White,

250 F. Supp. 2d at 922-23 (applying § 6330(d)(1) and concluding that Tax Court

had exclusive jurisdiction over income tax liability claims and procedural due

process claims arising from collection due process hearing).




2
       W e note that the last sentence in § 6330(d)(1) provides that “[i]f a court
determines that the appeal was to an incorrect court, a person shall have 30 days
after the court determination to file such appeal with the correct court.” It does
not appear that this provision is applicable here, however, because the controlling
regulation requires that the initial appeal to the incorrect court be timely, see
26 C.F.R. § 301.6330-1(f)(2), Q-F4, A-F4 (1999), and that was not the case here
as plaintiff filed his district court action after the expiration of the thirty-day
appeal period.

                                           -8-
      Because of the jurisdictional bar imposed by the Anti-Injunction Act,

26 U.S.C. § 7421(a), we also conclude that plaintiff cannot circumvent the

jurisdictional provisions in § 6330(d)(1) by invoking federal question jurisdiction

under 28 U.S.C. § 1331 or federal mandamus jurisdiction under 28 U.S.C. § 1361.

To begin with, although the doctrine of sovereign immunity generally does not

bar a claim under § 1331 for injunctive relief against a federal officer who has

violated a duty imposed by federal law while acting in his official capacity, see

Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419 v. Brown, 656

F.2d 564, 565-67 (10th C ir. 1981), plaintiff cannot pursue such a claim here. As

explained by the district court, “[t]he relief Plaintiff seeks, an order requiring the

IRS provide a fair hearing, would, if granted, effectively appeal the IRS

determination and restrain the collection of taxes.” R., Doc. 11 at 3.

Consequently, to the extent that plaintiff is seeking injunctive relief under § 1331,

his claim is barred by the Anti-Injunction Act, and the district court did not have

subject matter jurisdiction to consider the claim.

      W e reach the same result applying § 1361. Although the mandamus statute

is also not limited by sovereign immunity, see Simmat v. United States Bureau of

Prisons, 413 F.3d 1225, 1234 (10th Cir. 2005), the statute “does not override the

Anti-Injunction Act.” Estate of M ichael ex rel. Michael v. Lullo, 173 F.3d 503,

506 (4th Cir. 1999). As a result, because we agree with the district court that

plaintiff is seeking to restrain the collection of his unpaid income taxes, the

                                          -9-
Anti-Injunction Act bars him from obtaining mandamus relief. Cf. Souther v.

M ihlbachler, 701 F.2d 131, 132 (10th Cir. 1983) (per curiam) (concluding that the

Anti-Injunction Act deprived district court of jurisdiction to consider mandamus

petition that sought release of tax levy on plaintiff’s property, because it sought

“to enjoin the collection of taxes assessed against the petitioner”).

      Finally, although we do not need to decide the merits of plaintiff’s

mandamus claim, we want to emphasize that the district court correctly

determined that plaintiff had an available and adequate judicial remedy under

26 U.S.C. § 6330(d)(1) in the form of an appeal to the Tax Court. 3 In addition,

pursuant to 26 U.S.C. § 7422(a) and 28 U.S.C. § 1346(a)(1), plaintiff could have

pursued a tax refund suit in the district court if he had filed a proper

administrative claim with the IRS and paid the assessed income taxes in full. See

United States v. Dalm, 494 U.S. 596, 601-02 (1990); Flora v. United States,

362 U.S. 145, 177 (1960).

      The judgment of the district court is AFFIRMED.


                                                     Entered for the Court


                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




3
      Pursuant to 26 U.S.C. § 7482(a)(1), plaintiff could then have appealed any
adverse decision of the Tax Court to this court.

                                         -10-
