528 F.3d 597 (9th Cir. 2007), 05-16091, Hansen v. Department of Treasury

Docket Nº:05-16091.
Citation:528 F.3d 597
Party Name:Ethan J. HANSEN; Jonathan J. Hansen, Plaintiffs-Appellants, v. DEPARTMENT OF TREASURY; United States Internal Revenue Service; Social Security Administration, Defendants-Appellees.
Case Date:May 07, 2007
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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528 F.3d 597 (9th Cir. 2007)

Ethan J. HANSEN; Jonathan J. Hansen, Plaintiffs-Appellants,


DEPARTMENT OF TREASURY; United States Internal Revenue Service; Social Security Administration, Defendants-Appellees.

No. 05-16091.

United States Court of Appeals, Ninth Circuit.

May 7, 2007

Argued and Submitted March 8, 2007.

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Joel F. Hansen (briefed and argued), Hansen & Hansen, LLC, Las Vegas, NV, for the plaintiffs-appellants.

Joan I. Oppenheimer (argued) and Laurie Snyder (briefed), U.S. Department of Justice, Tax Division, Washington, D.C., for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada; Kent J. Dawson , District Judge, Presiding. D.C. No. CV-04-00322-KJD.

Before: HAWKINS , SIDNEY R. THOMAS , and RICHARD R. CLIFTON , Circuit Judges.


Jonathan J. Hansen (“Hansen" ), on behalf of himself and his son, Ethan, appeals

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the district court's dismissal of his complaint for failure to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6) . Hansen's complaint 1 requested: (1) a religious exemption from social security self-employment tax under 26 U.S.C. (“I.R.C." ) § 1402(g) [hereinafter “§ 1402(g) " ]; (2) a declaration that, as applied to Hansen, various portions of § 1402(g) violate the First Amendment's Free Exercise and Establishment Clauses; (3) a declaration that he and his son are not required to have or use a social security number (“SSN" ); and (4) a declaration that “various treasury regulations" are unconstitutional because they discriminate against Hansen based on his religious beliefs.

Concluding that the district court lacked jurisdiction over Hansen's statutory and constitutional § 1402(g) claims, we vacate its Rule 12(b)(6) dismissal of these claims and remand with directions to enter an order dismissing the claims for lack of subject matter jurisdiction. We have jurisdiction under 28 U.S.C. § 1291 and affirm the dismissal of Hansen's remaining claims.


Holding strongly held religious beliefs against having or using an SSN or being involved in the social security system, Hansen sought an exemption from self-employment social security taxes pursuant to § 1402(g) . Hansen was denied the exemption because the Social Security Administration and Internal Revenue Service determined he did not meet § 1402(g) 's eligibility requirements. A United States citizen, Hansen was also denied an Individual Taxpayer Identification Number (“ITIN" ) because ITINs are available only to individuals who are not citizens, nationals, or permanent residents of the United States. See 26 C.F.R. § 301.6109-1(d)(4) .2

Hansen thereafter filed the complaint at issue, alleging, inter alia, that he has strong religious beliefs against having an SSN, that there is no law requiring him or his son “to get or have a social security number," and that requiring his son to have an SSN in order to claim a tax deduction violates the First Amendment. Hansen's complaint further alleged that, “since [he] belongs to an organization that has its own provisions for taking care of its dependent members and has strong beliefs against having or using a social security number," he was entitled to an exemption under § 1402(g) and that “many of the provisions of [§ 1402(g) ] are unconstitutional as they allow an agency to pick and choose various religions that ‘meet’ the standards and thus, set up an[ ] unfair system of favoring one group over another, in violation of the First Amendment."

The United States then moved to dismiss, and Hansen responded with an opposition and a countermotion for summary judgment. The district court granted the Government's motion to dismiss and denied Hansen's countermotion, as well as Hansen's subsequent motion for reconsideration. This appeal followed.


Our review of a Rule 12(b)(6) dismissal is de novo and is limited to the allegations raised in the complaint, which must be taken as true and construed in the light most favorable to the nonmoving party.

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See Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005) . Dismissal may be affirmed on any ground supported by the record, “even if the district court did not reach the issue or relied on different grounds or reasoning." Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir.2000) .

We also review the district court's denial of a motion for summary judgment de novo. Moreno v. Baca, 431 F.3d 633, 638 (9th Cir.2005) . “Viewing the evidence in the light most favorable to the nonmoving party, [the court] must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id.


I. Hansen's § 1402(g) Claims

A) Jurisdiction

Although the Government did not contest, and the district court did not address, federal jurisdiction over Hansen's § 1402(g) claims, “[t]he defense of lack of subject matter jurisdiction cannot be waived," Augustine...

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