
USCA1 Opinion

	




          December 20, 1993     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1434                                          ANDREW TEMPELMAN, ET AL.,                               Plaintiffs, Appellants,                                          v.                                CECILE POTVIN, 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                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Andrew and Priscilla Tempelman on brief pro se.               ______________________________               Michael  L.  Paup,  Acting Assistant  Attorney  General, Tax               _________________          Division,  Gary  R.  Allen, Charles  E.  Brookhart  and  Scott P.                     _______________  ______________________       ________          Towers, Attorneys, Tax Division, Department  of Justice, on brief          ______          for appellees.                                  __________________                                  __________________                 Per Curiam.   Plaintiffs appeal from the dismissal  of a                 __________            complaint  in  which  they  advanced   three  related  claims            pertaining to a tax lien.  As the lien has now been lifted (a            fact first disclosed  only after judgment by way  of a motion            for  reconsideration), their claim under 28  U.S.C.   2410 to            "quiet title"  to property is  now moot.   In turn,  we agree            with the district court that,  as set forth in the complaint,            both the refund claim (brought under  28 U.S.C.   1346 and 26            U.S.C.   7422) and the damages claim (brought under 26 U.S.C.               7432) were barred  on jurisdictional grounds,  given that,            inter alia, the underlying assessments were never paid.  See,            __________                                               ___            e.g., McMillen v. U.S. Dep't  of Treasury, 960 F.2d 187, 188-            ____  ________    _______________________            90 (1st Cir. 1991) (per  curiam).  And considering the timing            of the  disclosure as  to the lien's  release, we  cannot say            that the court  abused its discretion  in denying the  motion            for  reconsideration,  particularly  since  such  denial  was            without prejudice to the filing of a new action  under   7432            (or some related provision) with regard to such release.                   We  need not now decide whether the normal prerequisites            to such a suit--exhaustion of administrative remedies, see 26                                                                   ___            U.S.C.      7432(d)(1),   and  payment   of  the   underlying            assessment, see McMillen,  960 F.2d at 190--might  be subject                        ___ ________            to  relaxation in  cases  where the  lien has  been released.            See,  e.g., Information Resources, Inc. v. United States, 950            ___   ____  ___________________________    _____________            F.2d  1122, 1125-27  (5th Cir.  1992).   Nor  need we  decide                                         -2-            whether, to  the extent  that the assessments  at issue  here            involved only corporate taxes, plaintiffs would have standing            as private individuals to pursue  such relief.  See, e.g., 26                                                            ___  ____            U.S.C.   7432(a)  (authorizing suit by taxpayer  for improper            failure to release lien "on property of the taxpayer"); In re                                                                    _____            Las  Colinas  Devel.  Corp.,  585  F.2d  7  (1st  Cir.  1978)            ___________________________            (corporations  can appear in  court only when  represented by            counsel), cert. denied, 440 U.S. 931 (1979).                       ____________                 We have reviewed plaintiffs' remaining  claims on appeal            and find them without merit.                  Affirmed.                     _________                                         -3-
