                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JAN 7 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    BILL MAX OVERTON,

                Plaintiff-Appellant,

    v.                                                   No. 99-2069
                                                  (D.C. No. CIV-98-1012-JP)
    UNITED STATES OF AMERICA,                             (D. N.M.)

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before EBEL , LUCERO , and MURPHY , Circuit Judges.




         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      This order and judgment is not binding precedent, except under the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. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Plaintiff-appellant Bill Max Overton appeals the district court’s February

10, 1999 order dismissing some of his claims and granting summary judgment on

the remaining claims. We affirm.


                                     Background

      Plaintiff has had several long-running disputes with the Internal Revenue

Service (IRS) regarding his tax liabilities, dating from at least 1975. This case

requires consideration of some of this past litigation. In 1983, plaintiff filed an

action against the United States and several IRS agents, in the United States

District Court for the Eastern District of Washington, alleging the IRS erred in

determining his tax liability for the years 1975, 1977, 1978, 1979, and 1981.

Plaintiff sought a refund of his alleged overpayments, an injunction against future

assessments and liens, a declaration that the IRS had erred, and damages. The

case remained pending in the district court for many years while the parties

engaged in extensive discovery, litigated numerous motions, and participated in

an aborted jury trial.

      In 1990, plaintiff filed a tax return for the year 1989 in which he claimed

a tax liability of $0, and withholding credits in the amount of $33,812. On this

basis, the IRS issued a $33,812 payment to plaintiff. Plaintiff then filed a motion

for summary judgment in the Eastern District of Washington case, claiming the

IRS had acknowledged its error and issued a refund of the disputed amounts plus

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interest. Based on plaintiff’s representation, the district court dismissed the

lawsuit as moot. The Ninth Circuit affirmed in part, agreeing that a refund

would moot plaintiff’s refund claims, but holding that the damage claims would

remain viable.   See Overton v. United States , No. 90-35686, 1993 WL 285888,

at **1 (9th Cir. July 29, 1993).

      In early 1993 the IRS concluded plaintiff was not entitled to the $33,812

in withholding credits he had claimed on his 1989 tax return, and demanded

repayment of the credited amount with interest. The IRS also reexamined

plaintiff’s tax liability for 1989 and 1990 and determined that he owed additional

taxes, penalties, and interest for those years. The IRS found that plaintiff owed

an additional $30,519 in taxes and $14,392 in penalties for 1989, and an

additional $11,561 in taxes and $2,890 in penalties for 1990.

      Plaintiff filed a petition in the United States Tax Court to contest these

determinations. At some point during the pendency of the case, the Tax Court

denied plaintiff’s motion for a jury trial, and he appealed the denial to the Fifth

Circuit Court of Appeals. The Fifth Circuit dismissed plaintiff’s appeal on

April 20, 1994. On February 14, 1996, the Tax Court dismissed plaintiff’s

petition for failure to prosecute and entered an order confirming that plaintiff

owed the additional taxes and penalties described above for the years 1989 and

1990. On July 1, 1996, the IRS assessed the taxes and penalties determined by


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the Tax Court, with interest, and issued its demand for payment. On August 12,

1996, the IRS issued notice of its intent to levy, and on October 8, 1997, the IRS

attempted an unsuccessful levy on Advanta National Bank. The IRS issued

another intent to levy on May 6, 1998, and on June 11, 1998, it sent notices of

levy to nine banks, including Safra National Bank and Advanta National Bank.

On August 10, 1998, the IRS received $99,411.85 from Safra National Bank.

      Plaintiff brought this action against the United States in the district court

for the District of New Mexico, seeking damages and injunctive relief stemming

from the IRS’ attempts to collect the 1989 withholding credits and the 1989 and

1990 tax deficiencies, penalties, and interest. Plaintiff made the following

claims: (1) the IRS illegally seized plaintiff’s funds while his case was pending

in the Tax Court (counts 1 & 4); (2) the IRS violated the law by demanding

payment less than ninety days after issuing a notice of deficiency (count 2);

(3) the IRS illegally demanded payment of a court-ordered refund (count 3);

(4) the IRS illegally demanded a greater sum from plaintiff than authorized by

law (count 5); (5) the IRS improperly seized plaintiff’s retirement funds (count

6); (6) the IRS illegally sought records from numerous third parties without

notifying plaintiff (counts 7-11); and (7) the IRS failed to give plaintiff the

required thirty-day notice of intent to levy before seizing his bank account

(count 12). The district court dismissed for lack of jurisdiction plaintiff’s claims


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that the IRS demanded repayment of a court ordered refund (count 3) and failed to

wait ninety days after the deficiency notice to demand payment (count 2);

dismissed for failure to state a claim plaintiff’s claims regarding lack of notice

when seeking records from third parties (counts 7-11); and granted summary

judgment on plaintiff’s remaining claims (counts 1, 4, 5, 6 & 12). This appeal

followed.

       We review de novo the dismissal of plaintiff’s claims for failure to state

a claim and for lack of subject matter jurisdiction due to the statute of limitations.

See Sutton v. Utah State Sch. for the Deaf & Blind      , 173 F.3d 1226, 1236

(10th Cir. 1999); Dahn v. United States , 127 F.3d 1249, 1252 (10th Cir. 1997).

We also review the grant of summary judgment de novo, applying the same

standard as that applied by the district court.     See Charter Canyon Treatment Ctr.

v. Pool Co. , 153 F.3d 1132, 1135 (10th Cir. 1998). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c). In applying this standard,

we view the facts and reasonable inferences therefrom in a light most favorable to

the nonmoving party.     See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996).




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                           Statute of Limitations — Counts 2 & 3

       Section 7433(a) of title 26, known as the Taxpayer’s Bill of Rights,

authorizes a taxpayer to seek damages for the IRS’ alleged disregard of a tax law

or regulation in collecting a tax. This statute, which waives the United States’

sovereign immunity, requires the taxpayer to bring suit within two years after the

right of action accrues.    See § 7433(d)(3). Because the “time-bar qualifies a

waiver of sovereign immunity,” it is jurisdictional in nature.     Dahn , 127 F.3d at

1252. Here, the district court dismissed counts 2 and 3 for lack of jurisdiction

based on the two-year statute of limitations. In addition, the district court

dismissed count 3 on the ground that the IRS’ demand for repayment of the

$33,812 was not, as a matter of law, a demand for repayment of a court ordered

refund. We conclude the district court did not err in dismissing these claims.

       Plaintiff’s count 2 was clearly time-barred, as it was based on actions taken

in February and March 1993. There is no merit to plaintiff’s arguments that the

limitations period was tolled by the case pending in Tax Court, or that the later

levy served to start the clock running again.

       Count 3 was properly dismissed for several reasons. First, the claim was

untimely, as the limitations period began to run when repayment of the $33,812

withholding credit was first demanded in 1993, that is, when the cause of action

first accrued. Second, after reading the Ninth Circuit decision, it is clear that the


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$33,812 payment was not a “court ordered refund” for the years 1975, 1977,

1978, 1979, and 1981. Although the Ninth Circuit held that     if the $33,812

payment was a refund as alleged by plaintiff , it would render his refund claims

moot, the court never determined whether the payment was actually a refund or

whether plaintiff’s refund claims were meritorious.    See Overton , 1993 WL

285888 at **1. Finally, even accepting as true plaintiff’s characterization of the

$33,812 as a court ordered refund, plaintiff failed to state a claim because the

statute allegedly violated by the IRS, 26 U.S.C. § 7214(a)(2), applies only when

an IRS official demands an unauthorized amount “for the performance of any

duty,” which has not been alleged here.


                   Failure to State a Claim — Counts 7 through 11

      The district court dismissed counts 7 through 11 for failure to state a claim

because the notice requirements of 26 U.S.C. § 7609(a)(1) do not apply to

summonses aiding collection of a tax liability that has been assessed or reduced to

judgment, as clearly stated in § 7609(c)(2)(D)(i). Plaintiff now argues the

summonses in this case were illegal because the Tax Court lacked jurisdiction to

adjudge his tax liability while an appeal of the court’s jury trial ruling was

pending in the United States Supreme Court.

      The district court correctly dismissed these counts. Although plaintiff

baldly asserts he had an appeal pending in the Supreme Court when the Tax Court

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issued its 1996 decision, he has not directed our attention to evidence of this

appeal. Nor does our independent research reveal any such case pending before

the Supreme Court. The only record evidence shows that the      Fifth Circuit

dismissed plaintiff’s appeal on April 20, 1994. On this basis, the Tax Court had

jurisdiction to reduce plaintiff’s tax liability to judgment, and thus no notice was

required when the summonses were sent to various banks in aid of collection.


                  Summary Judgment — Counts 1, 4, 5, 6, and 12

      Counts 1 and 4 alleged that the IRS violated 26 U.S.C. § 6213(a) by seizing

plaintiff’s assets while his tax case was still pending. Plaintiff again argues that

he had an appeal pending before the Supreme Court when his assets were seized.

Because plaintiff has not demonstrated the existence of a genuine dispute

regarding the pendency of his tax case before the Supreme Court, we conclude the

district court correctly granted summary judgment on these claims.

      Count 5 alleged the IRS violated 26 U.S.C. § 7214(a)(2) by demanding a

greater sum than that authorized by law. The district court concluded that the IRS

demanded only those sums that were owed--the erroneous withholding credits,

plaintiff’s tax deficiencies for 1989 and 1990, assorted penalties, and interest on

these amounts--and thus summary judgment was appropriate. While we agree that

plaintiff’s evidence did not raise a factual dispute as to the totals demanded, we

conclude his claim has a more basic infirmity in that § 7214(a)(2) is only violated

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when an IRS official demands an unauthorized sum “for the performance of any

duty.” Because no such claim was made, count 5 failed as a matter of law.

      Count 6 alleged the IRS improperly seized plaintiff’s retirement account

from the Advanta National Bank. The district court granted summary judgment

on this claim because plaintiff failed to show that such funds were actually seized

from the Advanta National Bank, and even if they were, seizure of a retirement

account was not prohibited. On appeal, plaintiff argues that the mere attempt to

seize such funds was improper, and that the law allows an exception for

retirement funds where seizure would work a hardship on retirees.

      The IRS’ internal policy of refraining from seizing retirement funds does

not provide a basis for plaintiff’s claim. Section 7433 authorizes a civil action

only when the IRS disregards a statute or regulation in collecting taxes. Here,

even assuming a mere attempt to seize plaintiff’s retirement funds would

implicate § 7433, plaintiff has not shown that seizure of a retirement account

violates a tax statute or regulation. In fact, as a matter of law, retirement funds

are not exempt from levy.   See 26 U.S.C. § 6334(a), (c). Summary judgment was

appropriate, therefore, on count 6.

      Summary judgment also was proper on count 12. The district court granted

judgment on this claim based on uncontradicted evidence that plaintiff had been

notified of the impending levy on three occasions, by a Final Notice of Intent to


                                          -9-
Levy sent on May 6, 1998, a notice sent on August 12, 1996, and a notice sent on

March 22, 1993. On appeal, plaintiff argues the thirty-day notice requirement

was not met because a notice of levy was sent to the Advanta National Bank “on

October 8, 1997 and notice was received from [the bank] on November 3, 1997 of

the effect of the levy.” Appellant’s Br. at 13. The thirty-day notice period runs

from the time the taxpayer is notified of the impending levy, however, not the

bank. See 26 U.S.C. § 6331(d). Assuming plaintiff is arguing that the district

court erred in relying on the 1998 seizure from the Safra National Bank instead of

the 1997 attempted levy on funds from the Advanta National Bank, the result does

not change, as the undisputed evidence shows plaintiff was given final notices of

levy on August 12, 1996, and March 22, 1993. Summary judgment, therefore,

was proper.

       Plaintiff argues that the district court’s resolution of his complaint violated

his Seventh Amendment right to a jury trial. It has long been held that the

Seventh Amendment is not violated by a summary judgment or dismissal of a

complaint on legal grounds because such rulings mean that no triable issue exists

to be submitted to a jury.   See Fidelity & Deposit Co. v. United States ex. rel.

Smoot , 187 U.S. 315, 319-20 (1902) (summary judgment);       Smith v. Kitchen ,

156 F.3d 1025, 1029 (10th Cir. 1997) (dismissal of complaint). Because




                                          -10-
plaintiff’s claims were properly dismissed on these legal grounds, he was not

deprived of any constitutional right to a jury trial.

       Finally, plaintiff argues the district court was so biased in favor of

defendant that it violated the separation of powers by becoming defendant’s

attorney. Other than his conclusory allegations, however, plaintiff has not

presented any actual evidence of court bias. The mere fact that the district court

disagreed with plaintiff’s arguments and ruled against him does not establish bias.

See Christensen v. Ward , 916 F.2d 1462, 1466 (10th Cir. 1990). We will not

address plaintiff’s argument that the IRS was precluded from auditing him for two

consecutive years as this was not raised to the district court.    See Crow v. Shalala ,

40 F.3d 323, 324 (10th Cir. 1994).

       Plaintiff’s first, second, third, and fourth motions for sanctions are

DENIED as lacking merit. The judgment of the United States District Court for

the District of New Mexico is AFFIRMED. The mandate shall issue forthwith.


                                                          Entered for the Court


                                                          David M. Ebel
                                                          Circuit Judge




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