                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 12 2012

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




                             FOR THE NINTH CIRCUIT



DENNIS CHAN LAI,                                 No. 10-17056

               Plaintiff - Appellant,            D.C. No. 1:09-cv-02086-AWI-
                                                 GSA
  v.

IPSON and M. GREEN, in official and              MEMORANDUM *
personal capacities,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                     Anthony W. Ishii, Chief Judge, Presiding

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Taxpayer Dennis Chan Lai appeals pro se from the district court’s judgment

dismissing his action against two Internal Revenue Service (“IRS”) agents in

connection with the assessment of a penalty for a frivolous filing under 26 U.S.C.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 6702. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

dismissal under 28 U.S.C. § 1915(e). Barren v. Harrington, 152 F.3d 1193, 1194

(9th Cir. 1998) (order). We may affirm on any ground supported by the record.

Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). We affirm.

       Dismissal of the action against the IRS agents was proper because Lai could

not state a claim for damages against them. See Adams v. Johnson, 355 F.3d 1179,

1185-86 (9th Cir. 2004) (because the Internal Revenue Code gives taxpayers

meaningful protections against government transgressions in tax assessment and

collection, taxpayers cannot bring actions against IRS employees in their

individual capacities for damages under Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, 403 U.S. 388 (1971)); Gilbert v. DaGrossa, 756

F.2d 1455, 1458 (9th Cir. 1985) (a suit against an IRS employee for actions taken

in his or her official capacity is a suit against the United States).

       To the extent that Lai sought to sue the United States for damages, dismissal

was proper because Lai has failed to show that the United States has waived its

sovereign immunity from suit. See United States v. Dalm, 494 U.S. 596, 608

(1990) (United States is immune from suit unless it has expressly consented to

suit). Contrary to Lai’s contentions, neither § 6702 nor 26 U.S.C. § 7433 provides

a waiver of sovereign immunity under these circumstances. See Flora v. United


                                            2                                 10-17056
States, 362 U.S. 145, 177 (1960) (construing 28 U.S.C. § 1346(a)(1) as requiring

full payment of an assessment against a taxpayer before a refund suit can be

maintained in district court); Miller v. United States, 66 F.3d 220, 222-23 (9th Cir.

1995) (waiver of sovereign immunity under § 7433 permitting taxpayers to sue for

misconduct in collection of taxes does not extend to improper determination or

assessment of taxpayer’s liabilities).

      The district court did not abuse its discretion by dismissing the complaint

without leave to amend because amendment would have been futile. See Albrecht

v. Lund, 845 F.2d 193, 195 (9th Cir. 1998) (reviewing for an abuse of discretion

and stating that leave to amend may be denied where amendment would be futile).

      We do not consider issues raised for the first time on appeal. See Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      Lai’s remaining contentions, including those concerning alleged district

court bias, are unpersuasive.

      All pending motions are denied.

      AFFIRMED.




                                          3                                    10-17056
