Souther v. Mihlbachler, No. 82-2247

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore SETH, Chief Judge, and BARRETT and McKAY; PER CURIAM
Citation701 F.2d 131
Parties83-1 USTC P 9269 Virginia M. SOUTHER, Petitioner-Appellant, v. G.L. MIHLBACHLER, Respondent-Appellee.
Docket NumberNo. 82-2247
Decision Date02 March 1983

Page 131

701 F.2d 131
83-1 USTC P 9269
Virginia M. SOUTHER, Petitioner-Appellant,
v.
G.L. MIHLBACHLER, Respondent-Appellee.
No. 82-2247.
United States Court of Appeals,
Tenth Circuit.
March 2, 1983.

Virginia M. Souther, pro se.

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Richard W. Perkins, and Melvin E. Clark, Jr., Attys., Tax Div., Dept. of Justice, Washington, D.C., for respondent-appellee.

Before SETH, Chief Judge, and BARRETT and McKAY, Circuit Judges.

PER CURIAM.

This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Virginia M. Souther appeals from an order of the district court dismissing her petition seeking to enjoin the respondent, the District Director of the Internal Revenue Service, from collecting a penalty of $500 pursuant to 26 U.S.C. Sec. 6682. We affirm.

The petitioner filed in the district court a "Petition for Writ of Mandamus" seeking a judgment ordering the respondent to release a tax levy on her property. She alleged that the respondent acted arbitrarily and capriciously in assessing and attempting to collect a penalty under 26 U.S.C. Sec. 6682. 1 The district court on its own motion dismissed the action because under the Anti-Injunction Act of the Internal Revenue Code, 26 U.S.C. Sec. 7421, federal district courts have no jurisdiction to enjoin the assessment of or collection of any tax.

Section 7421(a) provides that "no suit for the purpose of restraining the assessment

Page 132

or collection of any tax shall be maintained in any court ...." See Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974); Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962). Although denominated a mandamus action, the petition seeks to enjoin the collection of taxes assessed against the petitioner. Moreover, the penalties imposed pursuant to Sec. 6682 are "taxes" under Sec. 7421(a). Such penalties are taxes by definition and are to be treated as taxes. 26 U.S.C. Sec. 6671(a). See also Professional Engineers, Inc. v. United States, 527 F.2d 597 (4th Cir.1975) (penalty imposed for late filing of income tax return is tax within meaning of Sec. 7421); Crouch v. Commissioner, 447 F.Supp. 385 (N.D.Cal.1978) (penalty imposed for failure to include income tax...

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22 practice notes
  • National Feder. of Republican Assemblies v. U.S., No. CIV.A. 00-0759-RV-C.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 31, 2001
    ...upon the language of Section 6671(a).8 See, e.g., Warren v. United States, 874 F.2d 280, 282 (5th Cir. 1989); Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983) (citing § 6671(a), the court stated that "the penalties imposed pursuant to § 6682 are `taxes' under § 7421".); Botta v. Sc......
  • Seven-Sky v. Holder, No. 11-5047
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 8, 2011
    ...id. § 6331 (levies). 20.See Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963) (surveying cases); see also Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir. 1983); Kelly v. Lethert, 362 F.2d 629, 633 (8th Cir. 1966); Shaw v. United States, 331 F.2d 493, 496 (9th Cir. 1964). 21.See Nuttel......
  • Ross v. U.S., Civil Action No. 06-0963 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 10, 2006
    ...have simply cloaked an action for an injunction against the collection of taxes as a mandamus action. See Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir. 1983) (holding that, "[a]lthough denominated a mandamus action, the petition seeks to enjoin the collection of taxes assessed agains......
  • Thomas More Law Ctr. v. Obama, No. 10–2388.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 29, 2011
    ...for purposes of the Anti–Injunction Act. See Herring v. Moore, 735 F.2d 797, 798 (5th Cir.1984) (per curiam); Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983) (per curiam); Prof'l Eng'rs, Inc. v. United States, 527 F.2d 597, 599 (4th Cir.1975). Otherwise, the recalcitrant tax prote......
  • Request a trial to view additional results
22 cases
  • National Feder. of Republican Assemblies v. U.S., No. CIV.A. 00-0759-RV-C.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Southern District of Alabama
    • May 31, 2001
    ...upon the language of Section 6671(a).8 See, e.g., Warren v. United States, 874 F.2d 280, 282 (5th Cir. 1989); Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983) (citing § 6671(a), the court stated that "the penalties imposed pursuant to § 6682 are `taxes' under § 7421".); Botta v. Sc......
  • Seven-Sky v. Holder, No. 11-5047
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • November 8, 2011
    ...id. § 6331 (levies). 20.See Botta v. Scanlon, 314 F.2d 392, 393 (2d Cir. 1963) (surveying cases); see also Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir. 1983); Kelly v. Lethert, 362 F.2d 629, 633 (8th Cir. 1966); Shaw v. United States, 331 F.2d 493, 496 (9th Cir. 1964). 21.See Nuttel......
  • Ross v. U.S., Civil Action No. 06-0963 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • November 10, 2006
    ...have simply cloaked an action for an injunction against the collection of taxes as a mandamus action. See Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir. 1983) (holding that, "[a]lthough denominated a mandamus action, the petition seeks to enjoin the collection of taxes assessed agains......
  • Thomas More Law Ctr. v. Obama, No. 10–2388.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 29, 2011
    ...for purposes of the Anti–Injunction Act. See Herring v. Moore, 735 F.2d 797, 798 (5th Cir.1984) (per curiam); Souther v. Mihlbachler, 701 F.2d 131, 132 (10th Cir.1983) (per curiam); Prof'l Eng'rs, Inc. v. United States, 527 F.2d 597, 599 (4th Cir.1975). Otherwise, the recalcitrant tax prote......
  • Request a trial to view additional results

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