97-641




                                                                          No. 97-641

                                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                                         1998 MT 141N



                                            RONALD J. ALLISON & MARTHA J. ALLISON
                                                           Plaintiffs/Appellants,
                                                                v.

                           The Unknown Heirs, Devisees, Assigns, and Creditors
                             of the City of Forsyth, Rosebud County Montana;
                                 LARRY BURNS and LARRY'S SERVICE CENTER,
                             Baker, Montana; and all other persons, unknown,
                          claiming or who might claim any right, title, estate,
                      or interest in or lien upon the real and personal property
                            and property interests described in the Complaint
                        adverse to the Plaintiffs' ownership, or any cloud upon
                         Plaintiffs' title thereto, and sole ownership thereof,
                         whether such claim be present or contingent, including
                     any claim or possible claim of dower, inchoate, or accrued,
                                                 Defendants/Respondents.



               APPEAL FROM:                   District Court of the Sixteenth Judicial District,
                                                       In and for the County of Rosebud,
                                               The Honorable Robert S. Keller, Judge presiding.

                                                                COUNSEL OF RECORD:

                                                                               For Appellant:

                                                    Ronald J. Allison, Forsyth, Montana (pro se)

                                                                              For Respondent:

                                          A. Lance Tonn, Miles City, Montana (City); Gary Ryder,
                                                          Hysham, Montana(Burns)


                                                                             Submitted on Briefs: March 26, 1998
                                                                             Decided: June 9, 1998
                                                                             Filed:


                                                      __________________________________________

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 97-641


                                                                                            Clerk

                 Justice William E. Hunt, Sr. delivered the Opinion of the Court.

      ¶1   Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996
   Operating Rules, the following decision shall not be cited as precedent but
   shall be filed as a public document with the Clerk of the Supreme Court and
  shall be reported by case title, Supreme Court cause number, and result to the
    State Reporter Publishing Company and to West Group in the quarterly table
                        of noncitable cases by this Court.

¶2   Ronald and Martha Allison (the Allisons), pro se, appeal from the
order and entry of judgment of the Sixteenth Judicial District Court, Rosebud
County, granting motions to dismiss in favor of the City of Forsyth (the City)
and Larry Burns d/b/a Larry's Service Center (Burns) (collectively the
Defendants). We affirm.

¶3   This lawsuit concerns certain real and personal property once owned
by the Allisons and later seized by the United States Internal Revenue Service
(IRS) as the result of a dispute over unpaid federal taxes. At a U.S. Marshall's
sale, the IRS sold the real property to the City and the personal property to
Burns. The Allisons filed a suit to quiet title to the real and personal property
naming as defendants "The Unknown Heirs, Assigns, Devisees, and Creditors
of the City of Forsyth", Larry Burns, and Larry's Service Shop. The Allisons
based their quiet title action on allegations that the IRS committed a number
of illegal and/or inappropriate acts during the seizure and sale of their
property; that the seizure and sale of their property was therefore wrongful;
and that the Defendants were "receivers of stolen property."

¶4   The City and Burns filed motions to dismiss on the grounds that the
United States was an indispensable party and that the Allisons had failed to
state a claim upon which relief could be granted. The City listed the additional
ground that the Allisons failed to name the City as a defendant to the action.
The District Court granted the Defendants' motions to dismiss, and the
Allisons appealed. The sole issue on appeal is whether the court erred in
granting the Defendants' motions to dismiss.

¶5   Having reviewed the record, we determine that the District Court did
not err in dismissing the Allisons' complaint. First, the United States is an
indispensable party to this case. Although the complaint requests that the
Defendants be divested of all right and title to the real and personal property
and pay damages, the facts forming the basis of the complaint essentially boil
down to wrongdoing on the part of the IRS. An action for wrongful levy
against the IRS must be brought in federal court. See 26 U.S.C. §§ 7402,
7421, and 7422. The Allisons' reliance on 28 U.S.C. § 2410 to establish
jurisdiction in state court for IRS wrongdoing is misplaced. Title 28, section
2410 of the United States Code provides that the United States may be named
a party in any state court having jurisdiction over the subject matter to quiet
title to real or personal property on which the United States has or claims a
mortgage or other lien. The Allisons' complaint does not name the United

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States as a party and fails to allege that the United States currently has a
mortgage or lien on the property in dispute. Thus, 28 U.S.C. § 2410 is
inadequate to support the Allisons' claim of state court jurisdiction.

¶6   Second, the complaint fails to state a claim upon which relief may be
granted.
     In considering a Rule 12(b)(6) motion to dismiss, the allegations
     must be viewed in a light most favorable to the plaintiff,
     admitting and accepting as true all facts well-pleaded. Further,
     a court should not dismiss a complaint for failing to state a
     claim unless it appears beyond doubt that the plaintiff can prove
     no set of facts in support of his or claim which would entitle
     him or her to relief.

Farris v. Hutchinson (1992), 254 Mont. 334, 336, 838 P.2d 374, 375.
     A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., only tests
     whether a claim has been adequately stated in the complaint.
     Therefore, the court's inquiry properly is limited to the content
     of the complaint.

Gebhardt v. D.A. Davidson & Co. (1983), 203 Mont. 384, 389, 661 P.2d 855,
857-58. Again, the facts forming the basis of the complaint essentially state
a potential claim for relief against the IRS, not the Defendants. The
Defendants were bonafide purchasers of real and personal property. The
complaint lacks a statement of facts supporting the allegation that the
Defendants are receivers of stolen property. Additionally, we note that the
Allisons failed to identify the City as a party to the action, choosing instead to
name only the City's heirs, assigns, devisees, and creditors. Having viewed
the allegations in the light most favorable to the Allisons, and accepting the
stated facts in their complaint as true, we conclude that the Allisons can prove
no set of facts entitling them to relief against the City or Burns, and that
dismissal of the complaint was proper.

¶7        Affirmed.

                                                             /S/       WILLIAM E. HUNT, SR.

We Concur:

/S/       JAMES C. NELSON
/S/       TERRY N. TRIEWEILER
/S/       KARLA M. GRAY
/S/       W. WILLIAM LEAPHART




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