               IN THE SIJPREME COURT OF THE STATE OF MOFTANA




WILLIAM R. GETTER, Trustee for
GETTER TRUCKING, LNC., PROFIT
SHARING PLAN,
              Plaintiff and Respondent,
       -vs-
MARTIN J. RECKMAN and EARLENE H. BECKMAN,
et al.
              Defendants and Appellants.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable Russell K. Fillner, Judqe presiding.
COl.JNSEL OF RECORD :
        For Appellant:
                 Martin J. Beckman and Earlene H. Reckman, pro se,
                 Billings, Montana
        For Respondent:
                 Mark S. Werner; McNamer     &   Thompson, Rillings, Montana



                                   Submitted on Briefs*       Jan. 5, 1989
                                     Decided:         March 7, 1989
                                        d,




                                                                   -
                                 ' Clerk
                P
Mr. Justice William E. Hunt, Sr., deli-vered the 0pln;on of
the Court.


     The defendants, Martin J. Reckman and Earlene H.
Beckman, appeal the decision by the District Court of the
Thirteenth Judicial District, Yellowstone County, granting
the plaj ntiff Is motion for partial summary judgment to quiet
title to the property which is the subiect matter of this
case and to eject the defendants from the propertl7.        We
affirm the District Court.
     The following substantive issues are raised on appeal.
     1. Whether the District Court erred in grantinu
plaintiff's motion for partial summary judgment to quiet
title to the property which is the subject matter of this
case and to eject the defendants from the property.
     2. Whether the defendants had a right to a jury trial
in a quiet title action.
     On March 29, 1979, after following statutory procedures,
the United States Internal Revenue Service (IRS) seized
Martin and Earlene Beckman's property to satisfy the
Beckmans' unpaid federal income taxes. Notices of a sealed
bid sale of the property was issued on April 26, 1979. Upon
opening the sealed bids on June 20, 1979, the IRS sold the
property to Getter, the high bidder.    After passage of the
120-day redemption period, a deed for the property was issued
by the IRS to Getter. The deed was recorded on November 21,
1-973.
         Beginning   in   1977,   the   Beckmans   filed   a   number   of
federal lawsuits, alleging that their tax was improperly
assessed, the Sixteenth Amendment of the United States
Constitution was invalid, and that their property was
wronqfully seized. In each case, the United States District
Court for the District of Montana dismissed the case in part
because it lacked subject matter jurisdiction.      The Ninth
Circuit for the United States Court of Appeals affirmed each
of the District Court's rulings. In August, 1985, after the
United States District Court granted Getter's motion to quash
the lis pendens filed by the Beckmans, Getter filed a motion
for partial summary judgment against Beckmans in the District
Court of the Thirteenth Judicial District to quiet title to
the disputed property and for other additional relief.
     On January 7, 1987, the District Court granted Getter's
motion for partial summary judgment. More specifically, the
court quieted title to the property in Getter in fee simple
absolute; permanently enjoined the Beckmans from asserting
any claim adverse to Getter's ownership; declared that Getter
is entitled to possession of the property and ejected the
Beckmans; and ordered all lis pendens and other claims to
title to the property filed or recorded in Yellowstone County
by the Beckmans to be expunged from the files and records.
The Beckmans appeal this order, raising the following
substantive issues on appeal.
     The first issue raised on appeal is whether the District
Court erred in granting plaintiff's motion for partial
summarv judgment to quiet title to the property which is the
subject matter of this case and to eject the defendants from
the property.
     The party presenting the motion for summary judgment,
Getter, has the initial burden of showing the lack of any
genuine issue of material fact and that he is entitled to
judgment as a matter of law. Gamble Robinson Co. v. Carousel
Properties (1984), 212 Mont. 305, 312, 688 P.2d 283, 287.
The District Court determined that Getter met this burden,
therefore the burden shifted to the party opposing the
motion, the Reckmans, to show that a genuine issue of fact
does exist. -
            Gamble Robinson Co., 212 Mont. a . 312, 688 P.2d
              -                              t
at 287. The District Court found that the Beckmans failed in
meeting their burden and therefore granted Getter's motion
for partial summary judqment regarding the property in
question. We affirm the District Court.
      In defending against Getter's quiet title action, the
Beckmans argue that the IRS used powers not enumerated in the
lJni-ted States Constitution and that the IRS's procedures are
invalid because the IRS code is based upon the Sixteenth
Amendment to the United States Constitution which was
fraudulently verified.     The Beckmans asserted this same or
similar argument in a series of actions they filed between
1977 and 1982 before the United States District Court and the
Ninth Circuit.   Each time the United States District Court.
dismissed the Beckmans' claims in part for lack of subject
matter jurisdiction and each time the Ninth Circuit affirmed
the dismissal.   In these actions, the courts held that the
Beckmans' complaint is a claim for a tax refund and that
under 26 U.S.C. S 7422(a) (1982) they lack jurisdiction over
the   matter    until   the  Beckmans   first exhaust their
administrative remedies. - e.g.,. Beckman v. I.R.S., 48
                            See,
A.F.T.R.2d   (P-H)    81-5138 (1981), aff'd, No. 81-3468 (9th
Cir. July 13, 1982); Beckman v. Getter Trucking, Inc., No.
82-263 (D. Mont. Feb. 15, 1984), aff'd, No. 84-3701 (9th Cir.
Dec. 26, 1984).
     This federal statute, 26 U.S.C.   S   7422(a), upon which
the federal courts relied upon provides that
     No suit or proceeding shall be maintained in 9
     court for the recovery of any internal revenue tax
     alleged to have been erroneously or illegally
     assessed or collected, or of any penalty claimed to
     have been collected without authority, or of any
     sum alleged to have been excessive or in any manner
     wrongfully collected, until a claim for refund or
     credit has heen duly filed with the Secret-ary,
  -,#
   '    I
            -.L
             .
                  "




        according to the provisions of law in that regard,
        and the regulations of the Secretary established in
        pursuance thereof (emphasis added).
Like the federal courts, Montana courts also do not have
jurisdiction to determine whether the Beckmans were entitled
to a refund and therefore whether their property was
improperly seized to pay for the delinquent taxes in light of
their allegations of the invalidity of the Sixteenth
Amendment of the United States Constitution. Montana courts,
however, do have the jurisdiction to quiet title to property
located in Montana.     Sections 70-28-101 through -1-13, MCA,
address actions to quiet title to real estate generally and
S S 15-18-411 through -413, MCA, specifically address actions
to quiet title to a tax deed.
      The Beckmans' property was seized in 1979, and after
approximately ten years the title to this property is still
not quieted.    The Beckmans' consistent failure to seek the
proper administrative remedies to settle the initial issue of
whether they are entitled to a tax refund and therefore
whether their property was improperly seized in light of
their allegations of the invalidity of the Sixteenth
Amendment does not prevent this Court from affirming the
District Court's order quieting title to the property i.n
question.    While this Court does not ha-ve subject matter
jurisdiction over the original issues, this Court is
nonetheless required under Rule 202(d)(l), M.R.Evid., to take
judicial notice of federal statutes.
      The applicable federal statute in this case is 26 U.S.C.
S 6532 (a) (1982)     .
                     In particular, this statute provides that
      No suit or proceeding under section 7422(a) for the
      recovery of any internal revenue tax, penalty, or
      other sum, shall be begun        . . .   after the
      expiration of 2 years from the date of mailing by
      certified mail or registered mail by the Secretary
      to the taxpayer of a notice of the disallowance of
     the part of the claim      to   which   the   suit   or
     proceeding relates.
Federal district courts have strictly construed this statute
of limit.ations, recognizing that such a statute relinquishes
the United States' sovereign immunity and therefore is
considered jurisdictional and not subject to extensions. -See
Starkey v. United States (W.D. Ark. 1986), 635 F.Supp. 1007,
1009; Wyker v. Willingham (N.D. Ala. 19441, 55 F.Supp. 105,
106. A notice of the tax deficiency was sent to the Beckmans
by certified mail on May 6, 1976. The two year statute of
limitations bars     the Beckmans    from now bringing an
administrative suit for a refund of taxes even if they chose,
after over ten years, to seek the proper venue to bring their
complaint.    In the earlier federal cases, those courts
dismissed the Beckmans' suits because they had not first
sought administrative relief, so that the federal courts had
no jurisdiction.     Whatever effect these federal cases may
have, if any, as to res judicata, it is clear that the action
in the state district court is bound by the statute of
limitations.    Accordingly, by taking judicial notice of 3 6
U.S.C. S 6532(a), we determine to affirm the District Court's
order quieting title to the property in question.
      The Beckmans do not present any facts nor do they offer
any legitimate contentions as to why this Court should not
affirm the District Court's order. We therefore affirm the
District Court's order granting Getter's motion for partial
summary judgment quietina title to the property in question,
ejecting the Beckmans from the property, and granting other
such relief as requested.
     The second issue raised on appeal is whether the
Beckmans are entitled to a jury trial in a quiet title
action.
     The Beckmans assert that the District Court violated
their Seventh Amendment rights bv not granting them a jury
trial in this quiet title action. We disagree. In McGuiness
v. Maynard (1983), 202 Mont. 484, 658 P.2d 1104, this Court
held that actions to quiet title are actions in equity. Ln
equity actions, a district court may impanel an advisory jury
hut is not required to do so. McGuiness, 202 Mont. at 490,
658 P.2d at 1107. Therefore, contrary to what the Reckmans
argue, they are not entitled to a trial by iury in this
action.
     Affirmed.
                                   A
