                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 20 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



MICHAEL JOSEPH MANANT;                           No. 11-17073
ANNETTE LYNNE MANANT,
                                                 D.C. No. 1:10-cv-00566-JMS-
               Plaintiffs - Appellants,          KSC

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA,

               Defendant - Appellee.



                     Appeal from the United States District Court
                              for the District of Hawaii
                    J. Michael Seabright, District Judge, Presiding

                           Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Michael Joseph Manant and Annette Lynne Manant appeal pro se from the

district court’s judgment in their action alleging that the Internal Revenue Service

violated various statutes and regulations in collecting their accrued federal income


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
tax liabilities for tax years 1998, 1999, and 2000. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a dismissal for failure to exhaust. Sapp v.

Kimbrell, 623 F.3d 813, 821 (9th Cir. 2010). We vacate and remand with

instructions to dismiss for lack of jurisdiction.

      Dismissal of the Manants’ action without prejudice was proper because the

district court lacked jurisdiction in light of the Manants’ failure to pursue an

administrative claim before filing their action. See 26 U.S.C. § 7433(d)(1)

(requiring taxpayers to exhaust administrative remedies as a prerequisite to filing

an action for damages regarding improper tax collection); Conforte v. United

States, 979 F.2d 1375, 1376-77 (9th Cir. 1992) (failure to exhaust administrative

remedies under § 7433(d)(1) deprived the court of jurisdiction over a taxpayer’s

damages claims regarding improper tax collection under § 7433(a)).

      In light of our disposition, we do not address the Manants’ remaining

arguments regarding the merits their claims. See Wages v. IRS, 915 F.2d 1230,

1234 (9th Cir. 1990) (where the district court lacks subject matter jurisdiction, it

retains no power to make judgments as to the merits of the case).

      The Manants shall bear the costs on appeal.

      VACATED and REMANDED.




                                            2                                      11-17073
