ORDER SUBSTITUTING UNITED STATES AS PROPER PARTY RESPONDENT, GRANTING MOTION TO DISMISS, AND DIRECTING ENTRY OF JUDGMENT FOR RESPONDENTS

On September 10, 2001, the court heard the United States’ Motion to Dismiss. No appearance was made by or on behalf of petitioner, Robert S. Ervin.

On May 20, 2001, Robert S. Ervin filed a “Verified Petition for Writ of Mandamus or Writ of Certiorari, Prohibition or other Writ as the Court deems appropriate remedy [Code of Civil Procedure § 1085, 1086, 1102, 1103]” in the Stanislaus County Superior Court. Petitioner is described as “The people of California, ex rel Robert S. Ervin, Citizen in Party”. Respondents are “District Director, Modesto, California, Internal Revenue Service, in his individual capacity, and Does I-XX”. The Petition alleges in pertinent part:

The Petition prays for the following relief:

Although the Petition refers to attached exhibits, the only attachments are a memorandum of points and authorities and a declaration by Robert S. Ervin, wherein he avers in pertinent part:

On June 27, 2001, the United States removed the Petition to this court pursuant to 28 U.S.C. § 1442 .

The United States has filed a Motion to Dismiss

A. United States as' Proper Respondent.

The United States is entitled to be substituted as the proper party respondent to the extent that the respondents named in the Petition are sued because of action taken by Internal Revenue Service employees in their official capacities. Such a suit is a suit against the United States. Ferrel v. Brown, 847 F.Supp. 1524, 1526 (W.D.Wash.1993), aff'd, 40 F.3d 1049 (9th Cir.1994); see also Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985).

However, as noted, respondent is the “District Director of the Internal Revenue Service, in his/her personal capacity”. “The general rule is that a suit is against the sovereign if ‘the judgment sought would expend itself on the public treasury or domain, or interfere with the public administration,’ ... or if the effect of the judgment would be ‘to restrain the Government from acting, or to compel it to act.’ .... ” Dugan v. Rank, 372 U.S. 609, 620 , 83 S.Ct. 999 , 10 L.Ed.2d 15 (1963).

Here, there can be no question that the relief sought by the petition would result in a judgment recoverable against the public treasury, would interfere with public administration of the federal income tax laws, and would restrain the Government from acting or compelling it to act.

There are exceptions to this general rule. An action against a federal official in his official capacity is not a suit against the United States if the suit alleges that actions were taken by a federal official beyond his or her statutory powers or, even though within the scope of his or her authority, the powers themselves or the manner in which they are exercised are constitutionally void. Malone v. Bowdoin, 369 U.S. 643, 647 , 82 S.Ct. 980 , 8 L.Ed.2d 168 (1962); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 701-702 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949). “The mere allegation that the officer, acting officially, wrongfully holds property to which the plaintiff has title does not meet [the] requirement [that it must also appear that the action to be restrained or directed is not action of the sovereign]. True, it establishes a wrong to the plaintiff. But it does not establish that the officer, in committing that wrong, is not exercising the powers delegated to him by the sovereign.” Larson, id., 337 U.S. at 693 , 69 S.Ct. 1457 .

The United States argues that the petition does not contain allegations from which it may be inferred that either of these exceptions apply. First, the Petition does not allege that respondents have acted outside the scope of their authority in assessing and collecting taxes. Second, although the Petition challenges the powers that are vested in respondents’ official duties, the challenges to those powers have been repeatedly and summarily denied as frivolous, i.e., that he is not a resident of the District of Columbia or any United States territory and does not engage in any activity that generates taxable income. See e.g. In re Becraft, 885 F.2d 547, 548 (9th Cir.1989); United States v. Ward, 833 F.2d 1538, 1539 (11th Cir.1987), cert. denied, 485 U.S. 1022 , 108 S.Ct. 1576 , 99 L.Ed.2d 891 (1988); Lovell v. United States, 755 F.2d 517, 519 (7th Cir.1984); Parker v. Commissioner, 724 F.2d 469, 471 (5th Cir.1984); United States v. Romero, 640 F.2d 1014, 1016 (9th Cir.1981).

The court concludes that the United States should be substituted as the proper party defendant with respect to all claims made in the Petition, save one. As will be discussed infra, petitioner’s remedy .for the alleged failure of the named respondents to act is pursuant to 26 U.S.C. § 7433 . Section 7433(a) specifically provides that such an action is brought against the United States. Moreover, notwithstanding the allegations of individual capacity, it is clear that all actions taken or not taken by the individual respondents were taken in the course of the administration of the federal income tax laws.

However, as noted and as will be discussed infra, petitioner alleges that the named respondents have violated his constitutional rights under the Fourth and Fifth Amendments. Such a claim may be brought against respondents in their individual capacities and the United States is not a proper respondent with respect to such claims. See Gilbert v. DaGrossa, 756 F.2d 1455, 1459 (9th Cir.1985). Nonetheless, as will be discussed infra, no cause of action exists against individual officials of the Internal Revenue Service for violation of constitutional rights arising out of federal tax collection efforts. Consequently, although the United States is not the proper defendant with respect to such a claim, the claim itself cannot proceed.

B. Anti-Injunction Act and Declaratory Judgment Act.

1. Anti-Injunction Act.

The United States moves to dismiss the Petition to the extent that the Petition prays to enjoin IRS collection activities.

26 U.S.C. § 7421 (a) provides in pertinent part:

It does not appear that any of the exceptions listed in Section 7421(a) have any application to this Petition.

An action that does not fall within one of the statutory exceptions to the Anti-Injunction Act must be dismissed for lack of subject matter jurisdiction. Sokolow v. United States, 169 F.3d 663, 665 (9th Cir.1999). Thus, ordinarily, once a tax has been assessed, the taxpayer’s only recourse is to pay the tax in full and then sue for a refund. Id.

However, there is also a judicial exception to the Anti-Injunction Act. “[A]n injunction may be obtained against the collection of any tax if (1) it is ‘clear that under no circumstances could the government ultimately prevail’ and (2) ‘equity jurisdiction’ otherwise exists, i.e., the taxpayer shows that he would otherwise suffer irreparable injury.” Commissioner v. Shapiro, 424 U.S. 614, 627 , 96 S.Ct. 1062 , 47 L.Ed.2d 278 (1976) (quoting Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 , 82 S.Ct. 1125 , 8 L.Ed.2d 292 (1962)). The burden is on the taxpayer to establish both prongs of the test and, unless both prongs of the test are met, a suit for injunctive relief must be dismissed. Alexander v. “Americans United” Inc., 416 U.S. 752, 758 , 94 S.Ct. 2053 , 40 L.Ed.2d 518 (1974). As explained in Erickson v. Luke, 878 F.Supp. 1364, 1372 (D.Idaho 1995):

To meet the second prong of the test, the taxpayer “must show that he has no adequate remedy at law and that denial of injunctive relief would cause him immediate, irreparable injury.” Jensen v. IRS, 835 F.2d 196 , 198 (9th Cir.1987).

In responding to this portion of the Motion to Dismiss, petitioner argues that Section 7421(a) is not applicable “because Defendant [sic] was not acting within the scope of Defendant’s employment ... and did not adhere to ministerial duties, pursuant to 26 U.S.C. 6321, et al. and Defendant further violated Plaintiffs [sic] Constitutional Rights.”

However, the allegations of the Petition are clear that respondents were acting within the scope of their employment as Internal Revenue Service employees. There are no allegations that any respondent acted outside the scope of that employment. Petitioner cites no authority that the Anti-Injunction Act is inapplicable if it is alleged that a respondent was not acting within the scope of employment. Furthermore, petitioner does not specifically argue that any of the exceptions to the Anti-Injunction Act specified in Section 7421(a) apply. A reference to failure to “adhere to ministerial duties, pursuant to 26 U.S.C. 6321, et al.” does not suffice to allow this court to determine that the Anti-Injunction Act is inapplicable to petitioner. Therefore, the Anti-Injunction Act bars the injunctive relief sought by its terms.

Petitioner makes no mention of the required showing for the judicial exception to the Anti-Injunction Act. As noted, it is his burden to do so. Furthermore, the Ninth Circuit holds that the Anti-Injunction Act contains no exception for allegedly unlawful or unconstitutional levies. See Church of Scientology of California v. United States, 920 F.2d 1481, 1484-1485 (9th Cir.1990), cert. denied, 500 U.S. 952 , 111 S.Ct. 2258 , 114 L.Ed.2d 711 (1991).

Therefore, the claims for injunctive relief in the Petition are dismissed with prejudice.

2. Declaratory Relief

The United States is entitled to dismissal of the Petition to the extent that it seeks a declaration that the federal income tax laws are invalid or do not apply to petitioner. 28 U.S.C. § 2201 (a) provides in pertinent part:

Therefore, this court lacks jurisdiction to grant any such declaratory relief. See Hutchinson v. United States, 677 F.2d 1322, 1326-1327 (9th Cir.1982).

C. Sovereign Immunity.

To the extent that the United States is the proper respondent, the United States moves to dismiss the Petition for lack of subject matter jurisdiction on the ground that the United States has not waived its sovereign immunity.

As explained in Hutchinson v. United States, supra, 677 F.2d at 1327 :

Petitioner bears the burden of demonstrating an explicit waiver of the Government’s sovereign immunity from suit. United States v. Dalm, 494 U.S. 596, 608 , 110 S.Ct. 1361 , 108 L.Ed.2d 548 (1990).

The United States argues that the Petition does not allege any basis for concluding that the United States has waived its sovereign immunity.

As noted, the Petition alleges in Paragraphs 8 and 9 as follows:

As noted, no exhibits other than a memorandum of points and authorities and a declaration are attached to the Petition. Therefore, the court cannot determine whether, in fact, petitioner timely and completely complied with the various regulations described above. Petitioner’s remedy for any such alleged failure is prescribed by Section 7433.

The United States argues that, because' the Petition does not allege that petitioner has exhausted administrative remedies available to petitioner for the filing of an action under Section 7433, which administrative remedies are set forth in Treas. Reg. § 301.7433-1 , petitioner has not stated a claim upon which relief can be granted.

Petitioner does not respond to this ground for dismissal. Therefore, the court concludes that petitioner cannot allege such compliance. Therefore, any claim for relief deemed to be based on Section 7433 must be dismissed.

The United States notes that the Petition contains allegations sounding in tort, e.g., allegations of “mental anguish and defamation of character”. To' the extent that the Petition may be construed as alleging torts resulting from the alleged actions or inactions, it is clear that the United States has not waived sovereign immunity. Although the United States has waived sovereign immunity with respect to actions permitted under the Federal Tort Claims Act, 28 U.S.C. §§ 1345 (b) and 2671-2680, the Federal Tort Claims Act cannot serve as a basis for jurisdiction in the absence of an allegation that petitioner has filed a proper administrative claim with the Internal Revenue Service as required by Section 2675(a). Furthermore, the provisions of the Federal Tort Claims Act specifically exclude claims based upon the performance of a discretionary function by a government official and claims arising with respect to the assessment and collection of any tax. 28 U.S.C. § 2680 (a) and (c); Hutchinson v. United States, supra.

D. Failure to State a Claim.

1. Quiet Title.

With respect to the claims in the Petition concerning tax liens, the United States refers the court to 28 U.S.C. § 2410 .

Under Section 2410, the United States may be joined as a party to a quiet title action affecting property upon which the United States claims a lien. 28 U.S.C. § 2410 (a). However, “[i]n actions or suits involving liens arising under the internal revenue laws, the complaint or pleading shall include the name and address of the taxpayer whose liability created the lien and, if a notice of tax lien was filed, the identity of the internal revenue office which filed the notice, and the date and place such notice of lien was filed.” 28 U.S.C. § 2410 (b). A taxpayer may not use a section 2410 action to collaterally attack the merits of an assessment. Rather, the taxpayer may only contest the procedural validity of a tax lien. Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990).

Although the United States acknowledges that Section 2410 may constitutes a waiver of sovereign immunity, the United States notes that petitioner has not set forth the allegations required by Section 2410(b). In addition, the United States contends, petitioner is seeking to litigate the merits of his tax liabilities without fully paying the tax and satisfying the prerequisites to a claim for refund.

Petitioner does not specifically respond to these assertions. While, as discussed below, petitioner asserts that the Petition “is not a dispute over the government’s right to tax or over the amount to be assessed or collected”, the averments in petitioner’s declaration attached to the Petition imply to the contrary. As noted above, petitioner’s declaration implies that the basis for his averments that the liens and levies are wrongful is based on his contention that he is not subject to federal income tax because of the various frivolous reasons set forth in his declaration.

Therefore, the court concludes that the Petition cannot be deemed to state a claim for relief pursuant to Section 2410.

2. Constitutional Claims/Bivens.

Petitioner’s opposition to the Motion to Dismiss asserts as follows:

As discussed above, the individual respondents are the proper parties to such a claim.

However, a right of action under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971) for allegedly unconstitutional tax collection activity is not implied by the courts because of the comprehensive and exclusive remedies provided by the Internal Revenue Code and regulations, including Section 7433. See Wages v. IRS, 915 F.2d 1230, 1235 (9th Cir.1990), cert. denied, 498 U.S. 1096 , 111 S.Ct. 986 , 112 L.Ed.2d 1071 (1991); Ivy v. Mason, 30 F.Supp.2d 1268, 1270 (D.Idaho 1998); see also Shwarz v. United States, 234 F.3d 428, 434 (9th Cir.2000). Therefore, to the extent that the Petition is based on claims of constitutional violations by IRS officials, the claims cannot proceed and are dismissed with prejudice.

ACCORDINGLY, IT IS ORDERED that the United States is substituted as the proper party respondent to the extent stated herein.

IT IS FURTHER ORDERED that the United States’ Motion to Dismiss is granted and that this action is dismissed for the reasons set forth herein.

JUDGMENT FOR RESPONDENTS TO BE ENTERED

. Section 6015(e) provides for petition for review by the United States Tax Court. Section 6212(a) provides for notice of deficiency. Section 6212(c) restricts further notices of deficiency. Section 6213(a) sets forth the time after a notice of deficiency is issued to petition the United States Tax Court for relief. Section 6225(a) provides restrictions on assessment and collection attributable to a partnership. Section 6246(b) provides for an injunction against premature action with respect to a partnership adjustment. Section 6330(e)(1) pertains to suspension of specified actions during the pendency of a hearing before levy pursuant to Section 6330(a). Sec-lion 6331 pertains to levy and distraint. Section 6331 (i) provides for an injunction notwithstanding Section 7421(a) for "any unpaid divisible tax”. Section 6672 pertains to the failure to collect and pay over tax or attempt to evade or defeat tax. Section 6694 pertains to the understatement of a taxpayer’s liability by an income tax return preparer. Section 7426 pertains to civil actions by persons other than taxpayers. Section 7429 pertains to review of jeopardy levy or assessment procedures. Section 7436 pertains to proceedings for determination of employment status. . 26 U.S.C. § 7433 provides in pertinent part: (a) In general. — If, in connection with any collection of Federal tax with respect to a taxpayer, any officer or employee of the Internal Revenue Service recklessly or intentionally, or by reason of negligence disregards any provision of this title, or any regulation promulgated under this title, such taxpayer may bring a civil action for damages against the United Stales in a district court of the United States. Except as provided in section 7432, such civil action shall be the exclusive remedy for recovering damages from such actions. (b) Damages. — In any action brought under subsection (a) ..., upon a finding of liability on the part of the defendant, the defendant shall be liable to the plaintiff in an amount equal to the lesser of $1,000,000 ($100,000, in the case of negligence) or the sum of - (1)actual, direct economic damages sustained by the plaintiff as a proximate result of the reckless or intentional or negligent actions of the officer or employee, and (2)the costs of the action. (d) Limitations. - (1) Requirement that administrative remedies be exhausted. — A judgment for damages shall not be awarded under subsection (b) unless the court determines that the plaintiff has exhausted the administrative remedies available to such plaintiff within the Internal Revenue Service. (2) Mitigation of damages. — The amount of damages awarded under subsection (b)(1) shall be reduced by the amount of such damages which could have reasonably been mitigated by plaintiff. (3) Period for bringing action. — Notwithstanding any other provision of law, an action to enforce liability created under this section may be brought without regard to the amount in controversy and may be brought only within 2 years after the date the right of action accrues. . Because of this conclusion, the court does not address the United States’ alternative argument that any claim for relief pursuant to Section 7433 is barred by the applicable statute of limitations.