                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                     July 29, 2010
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    KENT CARTER,

                Plaintiff-Appellant,

    v.                                                    No. 09-2314
                                              (D.C. No. 6:07-CV-01264-MV-LAM)
    UNITED STATES OF AMERICA, a                            (D. N.M.)
    Federal corporation; INTERNAL
    REVENUE SERVICE; MICHAEL J.
    PRYOR,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HOLMES, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.


         Kent Carter, appearing pro se as he did in the district court, appeals from

the dismissal of his twelve-count amended complaint against the United States,

the Internal Revenue Service (IRS), and IRS agent Michael J. Pryor, for their

alleged wrongful attempts to collect taxes and penalties. Exercising jurisdiction


*
       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. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
under 28 U.S.C. § 1291, and liberally construing Mr. Carter’s pro se pleadings

and other papers, see Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir.

2007), we affirm.

                                          I.

      The parties are familiar with the facts. Mr. Carter is a disgruntled taxpayer,

who is suing over the liens and levies issued by the IRS to collect his tax

liabilities. Although he can no longer challenge the underlying assessments, he

presses the familiar and frivolous arguments made by tax protestors over the years

that he does not owe any taxes, but fails to raise any legitimate issues concerning

the district court’s order.

                                          II.

      Counts one and two of Mr. Carter’s amended complaint seek to quiet title

to real and personal property under 28 U.S.C. § 2410. The district court

dismissed these claims “for lack of subject-matter jurisdiction,” R., Vol. 2 at 509,

on the grounds that the United States’ waiver of sovereign immunity under § 2410

does not apply to claims challenging the validity of tax assessments. “We review

a district court’s dismissal for lack of subject matter jurisdiction under

Fed.R.Civ.P. 12(b)(1) de novo.” Tsosie v. United States, 452 F.3d 1161, 1163

(10th Cir. 2006). The court found, and we agree, that the gravamen of these

claims is Mr. Carter’s “contentions that he owed no taxes to begin with and that

[Agent] Pryor failed to use proper accounting methods in assessing his tax

                                          -2-
liability, which [is nothing more than a] collateral[] attack [on] the merits of his

assessment.” R., Vol. 2 at 508. Because sovereign immunity under § 2410 is

waived only for quiet title actions challenging “the procedural regularity of the

tax lien and the procedures used to enforce the lien, and not the validity of the

assessment,” Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir. 1992) (quotation

omitted), the court correctly held that it lacked jurisdiction over these claims. See

also James v. United States, 970 F.2d 750, 753 (10th Cir. 1992) (holding that

“§ 2410 does not waive sovereign immunity for claims that the taxpayer does not

owe the taxes in question”).

                                          III.

      Mr. Carter’s third count is under 26 U.S.C. § 7433(a), which provides for

an action for damages against the United States when a federal officer knowingly

or negligently disregards the tax code when collecting taxes. According to

Mr. Carter, the United States is liable under § 7433, because the IRS failed to

send him the notices of deficiency required by 26 U.S.C. §§ 6212(a) and 6213(a),

prior to issuing its notices of levy. One limitation on an action for damages under

§ 7433, is the requirement that “the court determine[] that the plaintiff has

exhausted the administrative remedies available to such plaintiff within the

Internal Revenue Service,” id. (d)(1).




                                          -3-
      The district court held that Mr. Carter did not exhaust his administrative

remedies, and thus failed to state a claim for relief under § 7433. 1 Alternatively,

the court granted summary judgment to the United States on the merits of the

claim. We are not convinced that Mr. Carter failed to exhaust his administrative

remedies. 2 However, we need not decide the issue because the United States was

1
       The district court concluded that the exhaustion requirement in 26 U.S.C.
§ 7433 was non-jurisdictional. The government contends that the statute is
jurisdictional. Most of the courts that have examined the issue in light of the
Supreme Court’s decision in Jones v. Bock, 549 U.S. 199 (2007), have concluded
that the exhaustion requirement in § 7433 is non-jurisdictional. See, e.g.,
Marsoun v. United States, 591 F. Supp. 2d 41, 44 (D.D.C. 2008). However, we
need not decide the issue because “[t]he characterization is important . . . only
when the defendant has waived or forfeited the issue[.]” McQueen ex rel.
McQueen v. Colo. Springs Sch. Dist. No. 11, 488 F.3d 868, 873 (10th Cir. 2007).
To be sure, a defendant can waive or forfeit certain issues, but because § 7433(d)
contains the mandatory requirement that the court determine whether the plaintiff
has exhausted his administrative remedies, we need not decide the issue because
there can never be a question of waiver or estoppel.
2
       In order to exhaust his administrative remedies, Mr. Carter was required to
comply with 26 C.F.R. § 301.7433-1(e)(1)-(2)(i)-(v), which sets forth the manner
and form for perfecting an administrative claim. The district court compared the
document that Mr. Carter claimed proved exhaustion against the regulation, and
found that because it lacked some pieces of information, he failed to exhaust.
It does appear that Mr. Carter’s claim was technically defective because it did not
contain information such as his taxpayer identification number or work and home
telephone numbers. But these defects did not prevent the IRS from considering
the merits of Mr. Carter’s claim, which was that the collection activity was
unlawful because it was not preceded by notices of deficiency. Indeed, on
May 31, 2007, the IRS sent a notice to Mr. Carter denying his claim because
“[t]he lien was not filed prematurely or not in accordance with the Service’s
administrative procedures.” R., Vol. 1 at 56. Under these circumstances, we
agree with the United States that an argument exists as to whether “the IRS
waived objections to the sufficiency of [Mr.] Carter’s administrative claim, given
that the agency reviewed and denied his application for withdrawal of federal tax
                                                                       (continued...)

                                          -4-
entitled to summary judgment.

      “We review a grant of summary judgment de novo.” Ford v. Pryor,

552 F.3d 1174, 1177 (10th Cir. 2008). Under Rule 56(c)(2) of the Federal Rules

of Civil Procedure, summary judgment “should be rendered if the pleadings, the

discovery and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to judgment

as a matter of law.” “Although we view the evidence and draw reasonable

inferences therefrom in the light most favorable to the nonmoving party, the

nonmoving party must present more than a scintilla of evidence in favor of his

position.” Ford, 552 F.3d at 1177-78. The linchpin of Mr. Carter’s claim under

§ 7433, is the IRS’s alleged failure to send notices of deficiencies prior to issuing

its notices of levy. On summary judgment, the United States proved that the

notices were sent for the relevant tax years in question, which entitled it to

judgment in its favor.

                                         IV.

      In his fourth count, Mr. Carter sues under 26 U.S.C. § 7432(a) which

provides a cause of action against the United States for damages “[i]f any officer



2
 (...continued)
lien[.]” Aplee. Answer Br. at 23. See Angle v. United States, 996 F.2d 252, 255
(10th Cir. 1993) (recognizing that the IRS may be held to have waived the formal
requirements of its regulation where it proceeds to examine the merits of the
claim).

                                          -5-
or employee of the Internal Revenue Service knowingly, or by reason of

negligence, fails to release a lien under section 6325 on property of the taxpayer.”

Section 7432 contains several limitations, including the requirement that “the

court determine[] that the plaintiff has exhausted the administrative remedies

available to [the] plaintiff,” id. at (d)(1). As to when a lien must be released,

26 U.S.C. § 6325 provides that a certificate of release shall be issued thirty days

following the date on which: (1) the liability for the amount assessed has been

paid in full; (2) the assessment has become legally unenforceable; or (3) the

taxpayer furnishes a bond conditioned on the payment of the amount assessed,

id. at (a)(1)&(2).

      The district court held that Mr. Carter did not exhaust his administrative

remedies, and thus failed to state a claim for relief under § 7432. We need not

reach the exhaustion issue for the reasons explained above, because even if we

were to hold that Mr. Carter satisfied this obligation, he cannot state a claim for

relief under § 7432, because he did not satisfy any of the conditions required for

the release of a lien under § 6325. “Although the district court did not rely on

this ground, we may affirm on any grounds supported by the record.” Bixler v.

Foster, 596 F.3d 751, 760 (10th Cir. 2010) (quotation omitted).

      In his amended complaint, Mr. Carter urges liability under § 7432, because

the IRS did not respond to his request to release the lien in the manner he wished:




                                          -6-
             In their denial, employees of the UNITED STATES took a
      hard-line position and did not attempt to rebut or establish how they
      determined the [notices of federal tax liens] were procedurally
      enforceable. Defendants have ignored all of the Plaintiff’s
      administrative claims that demanded answers to his concerns
      regarding Defendants’ intentional misapplication and administration
      of the internal revenue laws.

R., Vol. 2 at 247. To state a claim for relief under § 7432, a plaintiff must plead

that he met at least one of the three requirements for the release of a lien under

§ 6325, and the IRS failed to timely act. The amended complaint falls short of

this requirement and fails to state a claim upon which relief can be granted.

See Bixler, 596 F.3d at 756 (holding “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to state a claim

for relief that is plausible on its face”) (quotation omitted).

                                           V.

      Mr. Carter’s fifth claim for relief is for the alleged violation of 26 U.S.C.

§ 6103, which provides that tax returns and information in such returns are

confidential, and with certain exceptions, should not be disclosed. According to

Mr. Carter, the defendants violated the statute when they included his social

security number in the notices of federal tax liens that were filed in the public

records and in the notices of levy issued to third parties. Section 6103(k)(6)

contains one of many exceptions to confidentiality, and provides that return

information may be disclosed in connection with collection activities. See also

26 C.F.R. § 301.6103(k)(6)-1(a)(1)(vi); Mann v. United States, 204 F.3d 1012,

                                           -7-
1014, 1018 (10th Cir. 2000) (holding that there was no violation of § 6103(k)

where notices of levies and liens included the taxpayers’ social security numbers).

We agree with the district court that Mr. Carter failed to state a claim for relief

for the alleged violation of § 6103.

                                          VI.

      Counts six through ten of Mr. Carter’s amended complaint allege the

violation of his constitutional rights arising from the defendants’ failure to

comply with certain statutes in the assessment and collection of taxes. “The

United States and its agencies are not subject to suit under Bivens.” 3 Dahn v.

United States, 127 F.3d 1249, 1254 (10th Cir. 1997). Further, “in light of the

comprehensive administrative scheme created by Congress to resolve tax-related

disputes, individual agents of the IRS are also not subject to Bivens actions.” Id.

Therefore, the district court correctly dismissed these claims.

                                         VII.

      In count eleven, Mr. Carter alleges that Agent Pryor caused administrative

summonses to be issued without the signature of an approving officer, thereby

entitling him to damages for violation of the Administrative Procedures Act and

26 U.S.C. § 7429. In count twelve, Mr. Carter claims that the defendants’

intentionally misapplied 26 U.S.C. § 6331(a) by issuing administrative notices of

levy because he is not subject to the statute. The district court dismissed these

3
      Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

                                          -8-
claims on the grounds of sovereign immunity and lack of subject-matter

jurisdiction respectively.

      Mr. Carter’s opening brief (and reply brief) does not raise any argument as

to why the district court’s ruling on these claims was error. As such, he has

“forfeit[ed] appellate consideration of [these] issue[s].” Bronson v. Swensen,

500 F.3d 1099, 1104 (10th Cir. 2007).

      The judgment of the district court is AFFIRMED.



                                                    Entered for the Court


                                                    Jerome A. Holmes
                                                    Circuit Judge




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