June 3, 1993
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-2280 

          ANDREW TEMPELMAN AND PRISCILLA TEMPELMAN,

                   Plaintiffs, Appellants,

                              v.

              UNITED STATES OF AMERICA, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

       [Hon. Joseph A. DiClerico, U.S. District Judge]
                                                     

                                         

                            Before

                  Torruella, Cyr and Boudin,
                       Circuit Judges.
                                     

                                         

Andrew Tempelman and Priscilla Tempelman on brief pro se.
                                        
Peter E. Papps, United  States Attorney, James  A. Bruton,  Acting
                                                         
Assistant Attorney General,  Gary R. Allen, William  S. Estabrook, and
                                                             
Doris  D. Coles, Attorneys,  Tax Division,  Department of  Justice, on
           
brief for appellees.

                                         

                                         

     Per  Curiam.    Andrew   and  Priscilla  Tempelman  (the
                

taxpayers) filed a  pro se action  in federal district  court

seeking  to enjoin  the Internal  Revenue Service  (IRS) from

collecting back  taxes.    The  lower  court  denied  relief,

concluding that the  suit was barred  by the  Anti-Injunction

Act, 26 U.S.C.    7421(a).  We agree with  this determination

and therefore affirm.

                              I.

     The taxpayers own and operate a small inn and restaurant

in Milford, New Hampshire.  In 1990, the IRS served them with

notices of deficiency pursuant  to 26 U.S.C.    6212 claiming

that approximately $130,000 in taxes, interest and  penalties

were  owed for  the  years 1984  and  1985.1   The  taxpayers

thereafter filed a timely petition under 26 U.S.C.   6213 for

redetermination  in  tax court.    On  October 4,  1991,  the

taxpayers  and the IRS presented the  court with a stipulated

agreement calculating a  total liability for  those years  of

approximately  $35,000 plus  interest.   The tax  court judge

adopted this agreement in a decision dated November 27, 1991.

The taxpayers filed an  appeal from this decision on  May 20,

1992, claiming inter alia  that they had been coerced  by the
                         

IRS  and the tax court into signing the stipulation.  Because

their  notice of appeal was filed well past the 90-day period

prescribed  by Fed. R. App. P. 13(a), we dismissed the appeal

for lack of jurisdiction on September 1, 1992.  We thereafter

                    

1.  While  the IRS  also alleged  deficiencies for  the years
1983 and 1986-88, the instant case pertains only to the years
1984-85.  

denied their motion for reconsideration and for permission to

file late.

     Under 26  U.S.C.   6213(a),  the IRS is  prohibited from

making   any  assessment  or  levy  or  otherwise  initiating

collection efforts until  the decision of the  tax court "has

become final"--which  in this  case occurred on  February 25,

1992.  See  26 U.S.C.   7481(a).   In the stipulated decision
          

adopted by  the tax  court, however, the  taxpayers expressly

agreed to  waive this restriction.   Accordingly, in December

1991,  the  IRS made  assessments  for the  years  1984-85 in

accordance with  that decision.   Upon taxpayers'  failure to

pay, the IRS in  August 1992 levied upon their  New Hampshire

bank account and  filed a  notice of tax  lien against  their

property.  Taxpayers responded  by filing their complaint for

injunctive relief.

                             II.

     The   Anti-Injunction   Act   provides,   with   certain

enumerated  exceptions,  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).    In Enochs  v. Williams  Packing  Co., 370  U.S. 1
                                                

(1962), the  Court fashioned an additional  exception to this

provision, holding that a suit  for injunctive relief may lie

where (1) the taxpayer will suffer irreparable harm absent an

injunction, and (2)  it is clear that "under no circumstances

                             -3-

could the Government  ultimately prevail"  on the  underlying

dispute.   Id. at 7;  accord, e.g., South  Carolina v. Regan,
                                                            

465 U.S. 367,  374 (1984); Commissioner v.  Shapiro, 424 U.S.
                                                   

614, 627 (1976); Bob Jones Univ. v. Simon, 416 U.S.  725, 737
                                         

(1974);  Lane v. United States,  727 F.2d 18,  20 (1st Cir.),
                              

cert. denied, 469 U.S.  829 (1984).  The taxpayers  here seek
            

to  invoke this exception, arguing  that they satisfy both of

the  Enochs  criteria.    The district  court  (adopting  the
           

recommendations  of  a  magistrate-judge) disagreed,  finding

that the  taxpayers had established irreparable  harm but had

failed   to  show   that  the   government  would   under  no

circumstances  prevail.     This  determination   is  plainly

correct.       The  Enochs Court  elaborated  on  the  latter
                          

requirement as follows:

          [T]he question of whether the Government has a
     chance of ultimately prevailing is to be determined
     on the basis  of the information available to it at
     the  time of  suit.   Only if  it is  then apparent
     that,  under the most  liberal view of  the law and
     facts,  the  United  States  cannot  establish  its
     claim,  may   the  suit   for   an  injunction   be
     maintained.

370 U.S.  at 7.  In  attempting to meet this  "heavy" burden,

McCarthy v. Marshall,  723 F.2d 1034,  1040 (1st Cir.  1983),
                    

the taxpayers advance two arguments.  First, they charge that

they were coerced into  signing the stipulation, under threat

of  dismissal  of  their  petition, without  having  had  the

opportunity  to  examine  the agreement  and  the  underlying

tabulations.   The  transcripts of  the tax  court proceeding

                             -4-

undermine  this  claim.2   They  reveal  that  the threat  of

dismissal  arose--not because of  any heavy-handed tactics on

the  part of  the  IRS  or  the  court--but  because  of  the

taxpayers'  inadequate bookkeeping and their unwillingness to

produce records.  Indeed, the court refrained from dismissing

the petition even while noting that the IRS was "entitled" to

such  relief.  Supp. App.  at 52.   Furthermore, although the

taxpayers  appeared pro se, the court arranged for them to be

assisted by an attorney from a local law school's tax clinic,

who  argued on their behalf.  At  the close of the hearing at

which the agreement was  announced, the taxpayers praised the

judge.  Id. at 42.  After the judge's decision, the taxpayers
           

never  filed  a motion  for  reconsideration or  a  motion to

vacate or revise.  See  Tax Court Rules 161, 162.   Any claim
                      

of coercion or duress is, at the very least, far-fetched.

     Second, the taxpayers complain  that, once the tax court

decision  issued, the  IRS  attorney destroyed  her  personal

working  papers containing  the  calculations underlying  the

stipulated agreement.  They contend that  she was required to

retain  those  papers until  the  tax  court decision  became

                    

2.  Because the district court  dismissed the complaint prior
to service  of process  on the government,  these transcripts
were not part of the record below.  The IRS, having submitted
them in a supplemental  appendix to this court, asks  that we
take judicial notice thereof.  This request is granted.  See,
                                                            
e.g., Fed. R. Evid.  201; Taino Lines, Inc. v.  M/V Constance
                                                             
Pan Atlantic, 982  F.2d 20,  22 n.8 (1st  Cir. 1992);  United
                                                             
States v. Berzon, 941 F.2d 8, 14 n.9 (1st Cir. 1991). 
                

                             -5-

final.   They  argue  that the  attorney's calculations  were

riddled with errors  and omissions.  And they  conclude that,

since all "evidence"  in support  of the IRS'  claim has  now

been destroyed, the IRS has no chance of prevailing  thereon.

     This line  of reasoning is  likewise unavailing.   It is

hardly  surprising  that  personal working  papers  would  be

disposed of once a stipulated agreement has  been reached and

entered.   Such papers are obviously not the central evidence

in support  of the IRS' claim  that back taxes are  due.  And

the  taxpayers' underlying complaint  of IRS miscalculations,

having  not   been  timely   raised,  falls  well   short  of

establishing   "that   under  no   circumstances   could  the

Government ultimately prevail."   We therefore agree with the

lower court that the Enochs exception is inapplicable.3
                           

     The  taxpayers' remaining arguments  can be more readily

dismissed.  First, they seek,  in the alternative, to  invoke

one of  the statutory exceptions to  the Anti-Injunction Act:

the provision in    6213(a) permitting a court to  enjoin any

assessment made  prior to  the tax court's  decision becoming

final.    As mentioned,  however,  the  taxpayers waived  the

statutory bar  on assessments being made prior  to that time.

                    

3.  Indeed,  in light of the dismissal of the appeal from the
tax court ruling, it might well be argued that the government
already has prevailed.  We need not decide,  however, whether
the  instant  matter is  moot or  is  barred on  res judicata
                                                             
grounds, inasmuch as it is in any event without merit.

                             -6-

Moreover, the filing of  a notice of appeal operates  to stay

the assessment or collection  of a deficiency only if  a bond

is filed  with the tax court.   See 26 U.S.C.    7485(a); Tax
                                   

Court Rule 192.  No such bond was filed here.  

     Second, the taxpayers complain  that the district  court

dismissed  their suit sua sponte prior  to service of process
                                

on the government.   Yet  the court's lack  of authority  was

apparent  from the face  of the  complaint.   The magistrate-

judge's  report  provided  ample  notice  of the  complaint's

deficiencies.     And   the   taxpayers  were   afforded  two

opportunities   to  correct  those   shortcomings:  first  in

objecting  to  the  magistrate-judge's report,  and  later in

asking  the  district court  to  reconsider  its judgment  of

dismissal (the  court, in  fact, granted  reconsideration and

then  reinstated its  dismissal).   We  thus need  not decide

whether  the court's sua sponte dismissal was error.  Even if
                               

it were, any such error was, under the circumstances, plainly

harmless.  See, e.g.,  Purvis v. Ponte, 929 F.2d  822, 826-27
                                      

(1st Cir. 1991) (per curiam).4

                    

4.  The taxpayers  also rely  on the Shapiro  Court's holding
                                            
that, before the applicability of the Enochs exception can be
                                            
ascertained,  the government  has the obligation  to disclose
the factual basis for  its assessments.  See 424 U.S. at 626-
                                            
27.   That holding is  clearly inapposite.   The Shapiro case
                                                        
involved  a jeopardy assessment  made without any opportunity
for a prompt post-seizure inquiry into the basis for the IRS'
claim.   Here,  by contrast,  the taxpayers  have had  a full
opportunity to contest the IRS' claim in tax court. 

                             -7-

     Affirmed.  The motion  to amend pleading and  the motion
                                                             

to show cause are denied. 
                         

                             -8-
