Schmidt v. King

Decision Date06 September 1990
Docket NumberNo. 89-3240,89-3240
Parties-5572, 90-2 USTC P 50,487 Esley E. SCHMIDT and Mildred R. Schmidt, Plaintiffs-Appellants, v. Clarence M. KING, Jr., District Director, Max J. Kennedy, Revenue Officer, Internal Revenue Service, Commissioner of the Internal Revenue Service, United States of America, Does I Through X Inclusive, Defendants-Appellees.
CourtU.S. Court of Appeals — Tenth Circuit

Esley E. Schmidt and Mildred R. Schmidt, pro se.

Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen, Kenneth L. Greene, and Curtis C. Pett, Attys., Tax Div., Dept. of Justice, Washington, D.C., (Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., of counsel), for defendants-appellees.

Before SEYMOUR, BRORBY, and EBEL, Circuit Judges.

PER CURIAM.

The initial issue before us in this case is whether the district court had jurisdiction to consider this action, which plaintiffs Esley E. and Mildred R. Schmidt characterize as an action to quiet title under 28 U.S.C. Sec. 2410. Because Mr. and Mrs. Schmidt were actually challenging the Internal Revenue Service's deficiency assessment and collection of taxes, which may not be attacked under the authority of section 2410, we conclude the district court lacked jurisdiction to consider this lawsuit. 1

Mr. and Mrs. Schmidt did not file tax returns for the years 1978 through 1983. The I.R.S. thereafter assessed tax deficiencies for those years. When the Schmidts ignored the deficiencies, the I.R.S. filed liens and issued a notice of levy on eleven parcels of their property. The I.R.S. seized all of the property and sold four of the parcels. Because the tax liability was not satisfied by the sale, the I.R.S. filed additional tax liens.

Subsequently, the Schmidts filed a complaint in district court against the United States, I.R.S., and various I.R.S. employees (I.R.S.), seeking damages for assessing and collecting taxes and seizing and selling their property, and injunctive and declaratory relief to prevent the I.R.S. from engaging in future collection activities. The Schmidts primarily alleged that (1) the I.R.S. made an unlawful deficiency assessment and failed to follow proper procedure in making the assessment, (2) they are not subject to income taxes, (3) they were improperly labeled as taxpayers, and (4) the I.R.S. did not issue a notice of assessment and demand for payment prior to levying on and selling their property. Defendants filed a motion for summary judgment asserting, among other things, that the district court lacked jurisdiction under section 2410 to hear this action. The district court dismissed the portions of the complaint seeking damages and injunctive relief. The court determined that it had jurisdiction only over the claims that challenged the tax lien, levy, and sale because those claims sought to quiet title under the section 2410 waiver of sovereign immunity. Although the district court decided the I.R.S. had made a valid tax assessment, it concluded a factual question existed on whether the I.R.S. had made a proper notice of assessment and demand for payment. In a subsequent order, after defendants again filed a motion for summary judgment, the district court held that the Schmidts did receive the proper notice and demand requisite to a valid tax lien.

Although Mr. and Mrs. Schmidt raise several arguments on appeal relating to the merits of this action, we do not address those arguments because we conclude the district court lacked jurisdiction to consider this action. A suit naming the United States as a party may be brought in district court "to quiet title to ... property on which the United States has or claims a mortgage or other lien." 28 U.S.C. Sec. 2410(a). If a taxpayer seeks to quiet title to property upon which the United States has a lien, he may bring a quiet title action under section 2410(a), without paying the tax. Section 2410(a) waives the United States' sovereign immunity for actual quiet title actions. See United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960). Waivers of sovereign immunity under section 2410(a) must be read narrowly. See, e.g., Estate of Johnson, 836 F.2d 940, 943-44 (5th Cir.1988). Federal courts considering the issue of waiver of sovereign immunity under section 2410(a) have unanimously concluded that it may not be construed as permitting a collateral attack on the merits of a tax assessment. See, e.g., Pollack v. United States, 819 F.2d 144, 145 (6th Cir.1987); Laino v. United States, 633 F.2d 626, 633 n. 8 (2d Cir.1980); Aqua Bar & Lounge, Inc. v. United...

To continue reading

Request your trial
52 cases
  • Tolbert v. Gallup Indian Med. Ctr.
    • United States
    • U.S. District Court — District of New Mexico
    • 17 Agosto 2021
    ...United States, 970 F.2d at 753 (citing Engel v. United States (Estate of Johnson), 836 F.2d 940, 943 (5th Cir. 1988) ; Schmidt v. King, 913 F.2d 837, 839 (10th Cir. 1990) ). "A waiver of sovereign immunity ‘cannot be implied and must be unequivocally expressed.’ " United States v. Mitchell,......
  • Tolbert v. Gallup Indian Med. Ctr.
    • United States
    • U.S. District Court — District of New Mexico
    • 17 Agosto 2021
    ...United States, 970 F.2d at 753 (citing Engel v. United States (Estate of Johnson), 836 F.2d 940, 943 (5th Cir. 1988) ; Schmidt v. King, 913 F.2d 837, 839 (10th Cir. 1990) ). "A waiver of sovereign immunity ‘cannot be implied and must be unequivocally expressed.’ " United States v. Mitchell,......
  • Egbert v. US
    • United States
    • U.S. District Court — District of Wyoming
    • 2 Diciembre 1990
    ...challenged the resulting tax liens in a § 2410 quiet title action based upon alleged inadequate notice and demand. Schmidt v. United States, 913 F.2d 837, 839 (10th Cir.1990). The Schmidt court refused to allow the district court to review the alleged § 6303 inadequacies without first requi......
  • Lonsdale v. U.S.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 20 Noviembre 1990
    ...framing their contest of the Government's tax assessment or collection actions in the guise of a quiet title action. See Schmidt v. King, 913 F.2d 837 (10th Cir.1990); Pollack v. United States, 819 F.2d 144 (6th Cir.1987); Laino v. United States, 633 F.2d 626, 633 n. 8 (2d Cir.1980); Mulcah......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT