                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 07 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOHN J. SCHLABACH,                               No. 10-35929

              Plaintiff - Appellant,             D.C. No. 2:09-cv-00298-FVS

  v.
                                                 MEMORANDUM*
INTERNAL REVENUE SERVICE,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                Fred L. Van Sickle, Senior District Judge, Presiding

                          Submitted December 4, 2012**
                              Seattle, Washington

Before: SCHROEDER, McKEOWN, and TALLMAN, Circuit Judges.

       John Schlabach appeals from the district court’s order dismissing his Privacy

Act case against the Internal Revenue Service (“IRS”) for lack of subject matter

jurisdiction. He sought to have records removed from his IRS file. We affirm.


        *
             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).
      A district court does not have jurisdiction over a Privacy Act case brought

by an individual who seeks to amend a record that affects his actual or possible tax

liability. 26 U.S.C. § 7852(e); England v. Comm’r, 798 F.2d 350, 352 (9th Cir.

1986). Schlabach concedes that the letters he seeks to expunge are or were related

to an investigation of an abusive tax shelter. The documents therefore affect the

determination of his tax liability, depriving the district court of jurisdiction. Any

lack of ongoing IRS investigation does not confer jurisdiction because the record

could impact Schlabach’s future tax liability. England, 798 F.2d at 352 (finding

that an IRS record can affect subsequent tax liability). The statute moreover does

not distinguish between open and closed investigations. 26 U.S.C. § 7852(e).

      AFFIRMED.
