immunity bars the plaintiff's claims against both the United States and the IRS.
The United States is immune from suit absent a waiver of sovereign immunity. Arford v. United States, 934 F.2d 229, 231 (9th Cir. 1991). In the absence of this consent, the court lacks subject matter jurisdiction and must dismiss the complaint. Clemente v. United States, 766 F.2d 1358, 1363 (9th Cir. 1985). The plaintiff may not avoid this limitation upon the United States' liability by naming as defendants a federal agency. Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir. 1983); Gilbert v. DaGrossa, 756 F.2d 1455, 1458, 1460 n.6 (9th Cir. 1985). Claims against an agency are essentially claims against the United States, which are barred by sovereign immunity, absent consent to suit. Holloman, 708 F.2d at 1402.
The court finds the United States has not consented to suit in these circumstances. In the current action, it appears the plaintiff is contesting the propriety of the tax assessment.
Under 28 U.S.C. § 2410, a plaintiff may join the United States in a quiet title action affecting property in which the United States asserts a lien. Elias v. Connett, 908 F.2d 521, 527 (9th Cir. 1990). Under section 2410, however, a taxpayer may only contest the procedural validity of the lien and may not use the section to contest the merits of an assessment. Id.; United States v. Polk, 822 F.2d 871, 872 n.1 (9th Cir. 1987). The plaintiff has not presented any arguments to the court that the lien is not procedurally valid. Accordingly, the United States has not consented to this suit under section 2410.
If the plaintiff is asserting a claim under the Federal Tort Claims Act, the plaintiff also must comply with the jurisdictional prerequisites, such as filing a timely claim with the appropriate agency. 28 U.S.C. § 2401(b). There is no indication the plaintiff has filed a claim with the IRS. Accordingly, the United States also has not consented to this suit under the FTCA.
Finally, if the plaintiff's action is for a refund of taxes, the court is without jurisdiction unless the plaintiff has filed a timely claim with the IRS and has paid the assessment in full. Yuen v. United States, 825 F.2d 244, 245 (9th Cir. 1987); Thomas v. United States, 755 F.2d 728, 729 (9th Cir. 1985). There is no indication the plaintiff has filed a timely claim or paid the assessment in full. Accordingly, the defendants also are not subject to suit for a refund action at this time.
During oral argument, the plaintiff implied the $ 60 check sent to the IRS, and made out to the IRS, was in error. The plaintiff implied he intended this check to be sent to the Tax Court for the filing fee. If this is the plaintiff's position and the plaintiff wishes to pursue an action in Tax Court, the plaintiff should petition the Tax Court. If the plaintiff is alleging misappropriation of his funds by Samuels, the plaintiff may seek to file a claim under the FTCA. However, as discussed above, the plaintiff must comply with the jurisdictional prerequisites, such as filing a timely claim, before proceeding with such a claim in this court.
In sum, the court finds sovereign immunity bars the plaintiff's claims against the defendants. Accordingly, the court dismisses the complaint.
IT IS SO ORDERED.
MARILYN L. HUFF, JUDGE
UNITED STATES DISTRICT COURT
JUDGMENT IN A CIVIL CASE - March 6, 1995, FILED
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that the court finds sovereign immunity bars the plaintiff's claims against the defendants. Accordingly, the court dismisses the complaint.
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