Schmidt v. King, No. 89-3240

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SEYMOUR, BRORBY, and EBEL; PER CURIAM
Citation913 F.2d 837
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.
Decision Date06 September 1990
Docket NumberNo. 89-3240

Page 837

913 F.2d 837
66 A.F.T.R.2d 90-5572, 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.
No. 89-3240.
United States Court of Appeals,
Tenth Circuit.
Sept. 6, 1990.
Rehearing Denied Nov. 16, 1990.

Page 838

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...

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51 practice notes
  • Brewer v. US, No. 90 Civ. 3423 (GLG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 21, 1991
    ...Kulawy, 917 F.2d at 733. See, e.g., Aqua Bar & Lounge, Inc. v. United States, 539 F.2d 935, 938-40 (3d Cir.1976); Schmidt v. King, 913 F.2d 837, 839 (10th Cir.1990); Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990). Section 2410(a) authorizes suits to quiet title to real or personal prope......
  • Chavez v. United States, CIV 21-0872-JB-SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 25, 2021
    ...v. 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,......
  • Cheyenne-Arapaho Gaming v. National Indian Gaming, No. 01-CV-0632-C.
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • July 11, 2002
    ...399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Waivers by the government of sovereign immunity are to be read narrowly. See Schmidt v. King, 913 F.2d 837, 839 (10th Cir.1990). Because immunity is assumed until proven otherwise, the plaintiff bears the burden of proving that the sovereign has wai......
  • Butler v. Anderson (In re C.R. Stone Concrete Contractors Inc.), Case No. 05-11119-WCH
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • December 19, 2011
    ...Prod. Litig., 616 F.3d at 785 (8th Cir. 2010); Atkins v. City of Chicago, 547 F.3d 869, 873 (7th Cir. 2008); Grandbouche v. Lovell, 913 F.2d at 837; Bass v. Attardi, 868 F.2d 45, 50 (3rd Cir. 1989); Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985); see also Barlow v. Ground, 3......
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50 cases
  • Brewer v. US, No. 90 Civ. 3423 (GLG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • May 21, 1991
    ...Kulawy, 917 F.2d at 733. See, e.g., Aqua Bar & Lounge, Inc. v. United States, 539 F.2d 935, 938-40 (3d Cir.1976); Schmidt v. King, 913 F.2d 837, 839 (10th Cir.1990); Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990). Section 2410(a) authorizes suits to quiet title to real or personal prope......
  • Chavez v. United States, CIV 21-0872-JB-SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 25, 2021
    ...v. 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,......
  • Cheyenne-Arapaho Gaming v. National Indian Gaming, No. 01-CV-0632-C.
    • United States
    • United States District Courts. 10th Circuit. Northern District of Oklahoma
    • July 11, 2002
    ...399, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976). Waivers by the government of sovereign immunity are to be read narrowly. See Schmidt v. King, 913 F.2d 837, 839 (10th Cir.1990). Because immunity is assumed until proven otherwise, the plaintiff bears the burden of proving that the sovereign has wai......
  • Butler v. Anderson (In re C.R. Stone Concrete Contractors Inc.), Case No. 05-11119-WCH
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • December 19, 2011
    ...Prod. Litig., 616 F.3d at 785 (8th Cir. 2010); Atkins v. City of Chicago, 547 F.3d 869, 873 (7th Cir. 2008); Grandbouche v. Lovell, 913 F.2d at 837; Bass v. Attardi, 868 F.2d 45, 50 (3rd Cir. 1989); Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th Cir. 1985); see also Barlow v. Ground, 3......
  • Request a trial to view additional results

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