Walker v. Internal Revenue Service, US Treasury Dept.

• Decision Date: 06 August 1964
• Docket Number: No. 19047.,19047.
• Citation: 333 F.2d 768
• Parties: Claudia WALKER, Appellant, v. INTERNAL REVENUE SERVICE, U. S. TREASURY DEPARTMENT, United States of America, Joseph M. Cullen, District Director, Internal Revenue Service, V. V. Harvey, Revenue Officer, John Doe Kennedy, Supervisor, Internal Revenue Service, Mortimer Caplin, Commissioner of Internal Revenue, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

333 F.2d 768 (1964)

Claudia WALKER, Appellant, v. INTERNAL REVENUE SERVICE, U. S. TREASURY DEPARTMENT, United States of America, Joseph M. Cullen, District Director, Internal Revenue Service, V. V. Harvey, Revenue Officer, John Doe Kennedy, Supervisor, Internal Revenue Service, Mortimer Caplin, Commissioner of Internal Revenue, Appellees.

No. 19047.

United States Court of Appeals Ninth Circuit.

June 16, 1964.

Rehearing Denied August 6, 1964.

Claudia Walker, in pro. per.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Meyer Rothwacks, George F. Lynch, Attys., Dept. of Justice, Washington, D. C., Cecil F. Poole, U. S. Atty., Richard L. Carico, Asst. U. S. Atty., San Francisco, Cal., for appellees.

Before HAMLEY and MERRILL, Circuit Judges, and KILKENNY, District Judge.

HAMLEY, Circuit Judge.

Miss Claudia Walker, appearing throughout in propria persona, brought this action against the Internal Revenue Service and others, to enjoin the collection of deficiencies in federal income taxes determined and assessed against her for the calendar years 1953 through 1956. Defendants moved to dismiss the action on the grounds that the district court lacked jurisdiction over the subject matter and the complaint does not state a claim upon which relief can be granted.

After the complaint had been amended the motion to dismiss was heard and granted, the precise grounds therefor not being stated. A judgment dismissing the action with prejudice was thereupon entered. Plaintiff appeals.

The motion to dismiss for lack of jurisdiction was based on section 7421(a) of the Internal Revenue Code of 1954 (Code). This section provides that, except as provided in sections 6212(a) and (c) and 6213(a) of the Code, no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.

Section 6212(a) provides that if the Secretary or his delegate determines that there is a deficiency in respect of any tax imposed by subtitles A or B, he is authorized to send notice of such deficiency to the taxpayer by registered mail. Section 6212(c) is not pertinent in the case before us.

Section 6213(a), insofar as here material, provides that within ninety days after the notice of deficiency is mailed, the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. It is further provided, with exceptions not here material, that no assessment of a deficiency in respect of any tax imposed by subtitles A or B and no levy or proceeding in court for its collection shall be made, begun or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such ninety-day period, "* * * nor, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final." Section 6213(a) ends with this provision:

"Notwithstanding the provisions of section 7421(a), the making of such assessment or the beginning of such proceeding or levy during the time such prohibition is in force may be enjoined by a proceeding in the proper court."

Reading together sections 6212 (a), 6213(a) and 7421(a), it would appear that the only ground on which a district court would have jurisdiction to restrain the assessment or collection of a tax is where, with respect to a tax imposed by subtitles A and B, the Internal Revenue Service is attempting to make such assessment or collection without first having mailed a deficiency notice, or without waiting until the expiration of the ninety-day period after giving such notice during which the taxpayer may file a petition for a redetermination of the deficiency, or, if a petition has been filed with the Tax Court, until the decision of the Tax Court has become final.

A notice of deficiency was mailed to Miss Walker on November 4, 1960. The ninety-day period within which Miss Walker could have filed a petition for redetermination of the deficiency expired on February 2, 1961. No petition having been filed within that period the Internal Revenue Service was entitled to proceed with assessment and collection proceedings on February 3, 1961. The taxes were not assessed until August 25, 1961. Thus none of the circumstances exist which, despite the prohibition of section 7421(a), would have conferred jurisdiction on the district court to enjoin the assessment and collection of the tax.

It is true that Miss Walker filed an untimely petition with the Tax Court for a redetermination of the deficiency, such petition being filed on February 7, 1961. But if the filing of an untimely petition gives effect to that provision of section 6213(a) which states that "* * * if a petition has been filed with the Tax Court * * *" no assessment or collection proceedings may be had "* * * until the decision of the Tax Court has become final. * * *" the result is nevertheless the same as indicated above.

The order of the Tax Court dismissing the petition for redetermination was entered on April 26, 1961. Miss Walker did not petition for a review of that order and therefore, under section 7481(1) and 7483 of the Code, the decision of the Tax Court became final upon the expiration of the time for seeking such review. That time expired on July 26, 1961, three months after the order was entered. See Lasky v. Commissioner, 9 Cir., 235 F.2d 97, 98, aff'd per curiam, 352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598. As before stated, the taxes were not assessed until August 25, 1961.

However, apart from the provision of section 6213(a), which, as we have indicated, permits such injunction suits only under circumstances not here present, the rule is established that, under other extraordinary and exceptional circumstances such a suit may be maintained notwithstanding section 7421(a). Thus, in Miller v. Standard Nut Margarine Co., 284 U.S. 498, 510, 52 S.Ct. 260, 263, 76 L.Ed. 422, where it was sought to enjoin the collection of federal oleomargarine taxes, jurisdiction...