TPs Fail To Enjoin IRS Again

[The Observer]

GRANT HOLYOAK; ETHEL HOLYOAK,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA;
INTERNAL REVENUE SERVICE,
Defendants - Appellees.

Release Date: JUNE 09, 2011

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

D.C. No. 3:08-cv-08168-MHM

MEMORANDUM/*/

Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding

Submitted May 24, 2011/**/

Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.

Grant and Ethel Holyoak appeal pro se from the district court's judgment dismissing their action seeking to prevent the Internal Revenue Service ("IRS") from collecting taxes, interest and penalties that the IRS claims the Holyoaks owe. We have jurisdiction under 28 U.S.C. section 1291. We review de novo. Carson Harbor Vill., Ltd. v. City of Carson, 353 F.3d 824, 826 (9th Cir. 2004) (dismissal for lack of subject matter jurisdiction); Arford v. United States, 934 F.2d 229, 231 (9th Cir. 1991) (dismissal based on sovereign immunity). We affirm.

The district court properly dismissed the Holyoaks' claims seeking injunctive and declaratory relief because, under the Anti-Injunction Act and the Declaratory Judgment Act, the court lacked jurisdiction over those claims. See 26 U.S.C. section 7421 ("Except as provided in sections [not relevant here], no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person. . . ."); 28 U.S.C. section 2201 (no declaratory relief in federal tax matters other than actions properly brought under section 7428).

The district court properly dismissed the Holyoaks' claim under 28 U.S.C. section 2410 because "[a] taxpayer may not use a section 2410 action to collaterally attack the merits of an assessment." Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990). Sovereign immunity also bars the Holyoaks' claims seeking damages for alleged improper assessment of taxes. See Miller v. United States, 66 F.3d 220, 223 (9th Cir. 1995) (waiver of sovereign immunity under 26 U.S.C. section 2433 permitting taxpayers to sue for misconduct in collection of taxes does not extend to improper determination or assessment of taxes).

The Holyoaks' remaining contentions, including that their wages are not income, are unpersuasive.

We do not consider the Holyoaks' arguments raised for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Nor do we consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

AFFIRMED.

//*// 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).

[LPC]

The Holyoaks' remaining contentions, including that their wages are not income, are unpersuasive.

Unpersuasive? Really? Is that the best they can do?

Ridiculous, preposterous, inane, delusional, or (or old friend) frivolous would all seem to be more appropriate.

[Judge Roy Bean]

The Holyoaks' remaining contentions, including that their wages are not income, are unpersuasive.

Unpersuasive? Really? Is that the best they can do?

Ridiculous, preposterous, inane, delusional, or (or old friend) frivolous would all seem to be more appropriate.

I personally prefer ludicrous.

[Pottapaug1938]

I can just imagine these knuckleheads thinking something like "sure, the last thousand people to try this defense lost in court -- but WE are certain to be victorious!"

[LPC]

I can just imagine these knuckleheads thinking something like "sure, the last thousand people to try this defense lost in court -- but WE are certain to be victorious!"

I really don't think that they understand that there are thousands of losses based on this kind of nonsense, and that the law is well settled (against them). I really think that they think that they have discovered something new and fresh and untested and that they are going to dazzle the courts with their knowledge and their righteousness.

Even when it's their second, third, or fourth time in court. They just haven't gotten the right (fair and unbiased) judge yet.

[Cathulhu]

I think you nailed it, Dan. They all think they're new and radical, when it's just same old, same old.

[notorial dissent]

And of course, there vaunted "research" never seems to uncover the fact that this is well, if not overtrodden ground and that it all leads down the same dismal path to defeat.