                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            February 9, 2006
                             FOR THE TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court


    LAMAR LISTER,

                 Plaintiff-Appellant,

     v.                                                    No. 05-4149
                                                    (D.C. No. 2:04-CV-618-DB)
    UTAH STATE TAX COMMISSION,                               (D. Utah)

                 Defendant-Appellee.


                              ORDER AND JUDGMENT *


Before HENRY, McKAY, and MURPHY, Circuit Judges.


          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 ordered submitted without oral argument.

          Plaintiff LaMar Lister, appearing pro se, appeals the district court’s

dismissal of his complaint against the Utah State Tax Commission (the



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
“Commission”). This court exercises jurisdiction pursuant to 28 U.S.C. § 1291

and affirms.

      The Auditing Division of the Commission determined that Mr. Lister was

required to file Utah state income tax returns for the years 1999 and 2000, but he

had failed to do so. It sent him a notice of estimated income tax, assessing unpaid

Utah income taxes, penalties, and interest. Mr. Lister claimed that he was not

required to file a Utah income tax return because he was a resident of Nevada.

Following a formal hearing before an Administrative Law Judge, the Commission

issued a ruling in March 2004, finding that Mr. Lister had been domiciled in Utah

since April 1, 1999, and was, therefore, obligated to pay state income taxes for

1999 and 2000.

      Mr. Lister then filed a complaint in the federal district court in Utah

asserting that the Commission lacked authority to determine his residency and

requesting that the district court invalidate the Commission’s March 2004 order.

The Commission filed a motion to dismiss, contending Mr. Lister’s claims were

barred by the Tax Injunction Act, 28 U.S.C. § 1341 (TIA), and Eleventh

Amendment immunity. The district court summarily dismissed, adopting the

reasoning in the motion to dismiss.

      The TIA provides that “[t]he district courts shall not enjoin, suspend or

restrain the assessment, levy or collection of any tax under State law where a


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plain, speedy and efficient remedy may be had in the courts of such State.”

§ 1341. The TIA is a broad prohibition against the use of the equity powers of

federal courts involving state tax matters. Brooks v. Nance, 801 F.2d 1237, 1239

(10th Cir. 1986). It forbids not only injunctive relief, but also declaratory and

monetary relief. See Nat’l Private Truck Council, Inc. v. Okla. Tax Comm’n,

515 U.S. 582, 586-87 (1995); Marcus v. Kan. Dep’t of Revenue, 170 F.3d 1305,

1309 (10th Cir. 1999). The TIA “operates to divest the federal courts of subject

matter jurisdiction over claims challenging state taxation procedures where the

state courts provide a plain, speedy and efficient remedy.” Marcus, 170 F.3d at

1309 (quotations omitted). We review the district court’s dismissal de novo. Id.

      Mr. Lister contends that he is not seeking to enjoin, suspend or restrain the

assessment of any tax under state law, but is merely seeking a declaration that the

Commission lacked authority to determine and declare his domicile. We disagree.

Mr. Lister’s action clearly seeks both injunctive and declaratory relief related to

state tax matters and clearly seeks to invalidate and interfere with a state tax levy.

This is prohibited under the TIA. This is true even where a plaintiff is

challenging a tax-related residency requirement. See Mandel v. Hutchinson,

494 F.2d 364, 365-66 (9th Cir. 1974) (holding that TIA prohibits federal court

from intervening in a tax suit regarding residency requirements, even where

plaintiff alleges the tax is unconstitutional).


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      Mr. Lister argues that, as a resident of Nevada, he has no other forum

beside the federal court to resolve the question of his residency. He further

claims that the Commission’s decision violated his constitutional due process

rights. Utah provides a plain, speedy and efficient remedy in its courts for

Mr. Lister to challenge the residency determination by the Commission, and to

raise any constitutional challenge. See California v. Grace Brethren Church,

457 U.S. 393, 413 (1982) (holding that state remedy will be sufficient if it

provides the taxpayer with a full hearing and judicial determination at which the

taxpayer may raise any and all constitutional objections). Pursuant to Utah Code

Ann. § 59-1-501 through 59-1-610, any aggrieved taxpayer is entitled to a hearing

before the Commission, which Mr. Lister received; de novo review of the

Commission’s decision in the state district court, which Mr. Lister did not pursue;

and appellate review by the Utah Court of Appeals and the Utah Supreme Court.

Moreover, Mr. Lister could pay the tax under protest and then challenge the

legality or constitutionality of the tax in Utah state court pursuant to Utah Code

Ann. § 59-1-301.

      Thus, Mr. Lister had a plain, speedy and efficient remedy under Utah state

law to correct any erroneous decision of the Commission and to raise any alleged

violation of his constitutional rights. Cf. Brooks, 801 F.2d at 1240. The district


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court correctly ruled, therefore, that it lacked jurisdiction to consider Mr. Lister’s

claims. Because we affirm the dismissal under the TIA, we need not address the

applicability of the Eleventh Amendment.

      The judgment of the district court is AFFIRMED.



                                                      Entered for the Court



                                                      Monroe G. McKay
                                                      Circuit Judge




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