                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1407
                                   ___________

Patricia K. Langer; Henry J. Langer,    *
                                        *
             Appellants,                *
                                        *
      v.                                * Appeal from the United States
                                        * District Court for the
United States of America,               * District of Minnesota.
                                        *
             Appellee.                  * [UNPUBLISHED]
                                   ___________

                             Submitted: December 30, 2004
                                Filed: February 8, 2005
                                 ___________

Before BYE, MELLOY, and COLLOTON, Circuit Judges.
                           ___________

PER CURIAM.

      Henry and Patricia Langer (husband and wife) appeal the district court’s
adverse grant of summary judgment in their action challenging the Internal Revenue
Service’s (IRS’s) attempt to collect by levy Federal Insurance Contributions Act
(FICA) taxes. We reverse.

       The Langers’ pro se complaint sought review of the determination of the IRS
Office of Appeals that Patricia Langer was liable for the employee portion of certain
unpaid FICA taxes, and that the IRS could collect such taxes by levy. The crux of
their complaint is that the IRS incorrectly assessed Patricia Langer’s FICA taxes as
income taxes, and thus the IRS cannot use its administrative procedures to collect
these taxes by levy. The district court granted summary judgment to the IRS,
concluding that, because the Tax Court had determined in a prior proceeding that the
taxes at issue in this case were FICA and not income liabilities, collateral estoppel
prevented the Langers from arguing that the IRS had incorrectly assessed the taxes
as income taxes. We disagree with this conclusion.

        By way of background, although the IRS need not send deficiency notices to
taxpayers before assessing FICA taxes, where the underlying tax is an income, estate,
gift, or excise tax, the IRS is required to send the taxpayer a deficiency notice before
making the assessment. See 26 U.S.C. §§ 6212, 6213(a). Consistent with this
statutory obligation, the Tax Court has subject matter jurisdiction only with regard
to taxpayer challenges of (1) an IRS pre-assessment deficiency notice; or (2) the
IRS’s assessment of an income, estate, gift, or excise tax before complying with the
required deficiency-notice procedures. See 26 U.S.C. § 6213(a) (authorizing taxpayer
to file suit in Tax Court for redetermination of noticed tax deficiency; also
authorizing taxpayer to obtain injunction in Tax Court if IRS assesses income, estate,
gift, or excise tax without complying with required notice-of-deficiency procedures);
Laing v. United States, 423 U.S. 161, 165 n.4 (1976) (deficiency notice is of import
primarily because it is jurisdictional prerequisite to taxpayer’s suit in Tax Court for
redetermination of his tax liability).

       Turning to the instant case, before the Langers filed this action in the district
court, they sought review of the IRS’s collection procedures with the Tax Court. The
Tax Court, however, concluded that the Langers’ case “c[ame] up as an employment-
tax [FICA tax] liability,” and thus the Tax Court dismissed the suit based on lack of
subject matter jurisdiction. We believe the Tax Court’s dismissal disposes of only
two issues: (1) that the IRS did not send the Langers a deficiency notice; and (2) that
the underlying tax is in fact not an income, estate, gift, or excise tax, and thus the IRS
was not required under sections 6212 and 6213(a) to send the Langers a deficiency

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notice. We note, however, that the Langers acknowledge the underlying tax is in fact
a FICA tax; instead, the essence of their suit is that the IRS incorrectly assessed the
FICA tax as an income tax, and thus it cannot be levied. Because that issue was not
decided by the Tax Court, the application of collateral estoppel was erroneous.

       The IRS next argues that a stipulation the Langers made in district court--that
“[o]nly Patricia Langer’s FICA tax liabilities are at issue in this case”--provides this
court with an alternative basis to affirm the district court’s finding that the taxes were
assessed as FICA taxes. We disagree. We believe this stipulation merely reflects the
parties’ understanding that the underlying liability at issue in this case stems from
unpaid FICA taxes, whereas, once again, the crux of the Langers’ complaint is that
the unpaid FICA taxes cannot be collected because the IRS incorrectly assessed them
as income taxes.

       Finally, we decline to consider as an alternative ground for affirmance that
various computer printouts submitted to the district court conclusively establish the
FICA tax was properly assessed as such. Cf. Roberts v. Commissioner, 329 F.3d
1224, 1228 (11th Cir. 2003) (per curiam) (noting courts have held that Form 4340
Certificate of Assessment constitutes at least presumptive proof tax has been validly
assessed). The district court did not address this argument, and we decline to do so
in the first instance on appeal. The district court may consider the government’s
alternative position on remand. See Cody v. Weber, 256 F.3d 764, 769 n.2 (8th Cir.
2001) (declining prison officials’ invitation to affirm summary judgment order on
alternative grounds of qualified immunity, where district court did not rule on that
issue in first instance).

      Accordingly, we reverse the grant of summary judgment based on collateral
estoppel, and we remand for further proceedings consistent with this opinion.
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