                                                                           FILED
                             NOT FOR PUBLICATION                            JUN 09 2011

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




                             FOR THE NINTH CIRCUIT



GRANT HOLYOAK; ETHEL                             No. 09-17595
HOLYOAK,
                                                 D.C. No. 3:08-cv-08168-MHM
               Plaintiffs - Appellants,

  v.                                             MEMORANDUM *

UNITED STATES OF AMERICA;
INTERNAL REVENUE SERVICE,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Grant and Ethel Holyoak appeal pro se from the district court’s judgment

dismissing their action seeking to prevent the Internal Revenue Service (“IRS”)

from collecting taxes, interest and penalties that the IRS claims the Holyoaks owe.

          *
             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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Carson

Harbor Vill., Ltd. v. City of Carson, 353 F.3d 824, 826 (9th Cir. 2004) (dismissal

for lack of subject matter jurisdiction); Arford v. United States, 934 F.2d 229, 231

(9th Cir. 1991) (dismissal based on sovereign immunity). We affirm.

      The district court properly dismissed the Holyoaks’ claims seeking

injunctive and declaratory relief because, under the Anti-Injunction Act and the

Declaratory Judgment Act, the court lacked jurisdiction over those claims. See 26

U.S.C. § 7421 (“Except as provided in sections [not relevant here], no suit for the

purpose of restraining the assessment or collection of any tax shall be maintained

in any court by any person . . . .”); 28 U.S.C. § 2201 (no declaratory relief in

federal tax matters other than actions properly brought under section 7428).

      The district court properly dismissed the Holyoaks’ claim under 28 U.S.C.

§ 2410 because “[a] taxpayer may not use a section 2410 action to collaterally

attack the merits of an assessment.” Elias v. Connett, 908 F.2d 521, 527 (9th Cir.

1990). Sovereign immunity also bars the Holyoaks’ claims seeking damages for

alleged improper assessment of taxes. See Miller v. United States, 66 F.3d 220,

223 (9th Cir. 1995) (waiver of sovereign immunity under 26 U.S.C. § 2433

permitting taxpayers to sue for misconduct in collection of taxes does not extend to

improper determination or assessment of taxes).


                                           2                                       09-17595
      The Holyoaks’ remaining contentions, including that their wages are not

income, are unpersuasive.

      We do not consider the Holyoaks’ arguments raised for the first time on

appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Nor do we

consider matters not specifically and distinctly raised and argued in the opening

brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      AFFIRMED.




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