Appellant filed a complaint in the District Court seeking, among other relief, to restrain appellees from collecting income taxes plus penalties assessed against her for the years 1959, 1960, and 1961.

The District Court, 329 F.Supp. 1082 , denied appellees’ motion for summary judgment in respect to the year 1959, granted the motion for summary judgment as to years 1960 and 1961, and dismissed the action “to the extent that plaintiff’s request for an injunction is grounded on theories of waiver or estoppel, * * *.”

Appellant appeals from “the order granting defendant’s motion for summary judgment and from the summary judgment dismissing plaintiff’s complaint and denying a permanent injunction entered May 6, 1971.”

Appellant asserts: (1) that the notice of deficiency sent to her for the year 1960, and for the year 1961, did not comply with statutory requirements, and that the subsequent assessment based on each such notice of deficiency is invalid and enjoinable under provisions of the Internal Revenue Code of 1954 ( 26 U.S.C. § 6213 ), and (2), that agents of appellees, in their dealings with appellant relating to a Tax Court proceeding instituted by her former husband in respect to both his and her tax deficiencies for the three years in question, induced her to assist in procuring, to her detriment, her dismissal from the Tax Court proceedings on the representation that appellees would refrain from attempting to collect the taxes assessed against her, and that by such and other conduct appellees are estopped from attempting to collect the same.

Appellant contends that the District Court erred in granting a summary judgment denying a permanent injunction against the collection of income taxes assessed against her for the year 1960 and the year 1961 because the record presents genuine issues of material facts neees- sary to a determination of the legal sufficiency of the notice of deficiency mailed to her in each such year.

We have reviewed the pleadings, affidavits, and other material which were before the District Court at the time of granting summary judgment and are satisfied that the record shows no genuine issue as to any material fact, and that the District Judge acted properly in granting summary judgment as a matter of law in respect to income taxes assessed against appellant for the years 1960 and 1961.

We next consider the non-statutory basis upon which appellant seeks to enjoin appellees from collecting taxes assessed for the years 1960 and 1961, which basis the District Court stated “is essentially that of estoppel.” We will likewise use such term in describing such basis.

In disposing of such basis the District Court stated:

The appellant contends that the District Court erred in its partial dismissal of her action for lack of jurisdiction, and to the contrary asserts that the Court had jurisdiction and that since the record relating to estoppel discloses material íSt sues of fact, the Court was precluded from ordering the partial dismissal without holding an evidentiary hearing to resolve the same.

We agree with the statement of the District Court that the record presents “material issues of fact disputed” in respect to estoppel, and that it lacked jurisdiction.

26 U.S.C. § 7421 (a) prevents suits “ . . . for the purpose of restraining the assessment or collection of any tax . . . ” In Miller v. Standard Nut Margarine Co., 284 U.S. .498, 52 S.Ct. 260 , 76 L.Ed. 422 (1932), the Supreme Court enunciated a judicial exception to the statutory proscription. It held that if the Government could not prevail, and the taxpayer otherwise satisfied the requirements for equity jurisdiction, a United States district court could entertain a suit for injunctive relief against the collection of taxes. That rule was clarified and affirmed in Enochs v. Williams Packing Co., 370 U.S. 1 , 82 S.Ct. 1125 , 8 L.Ed.2d 292 (1962). Under this rule, the narrow question becomes what the Government must allege to avoid the Nut Margarine exception. This Court addressed this issue in Thrower v. Miller, 440 F.2d 1186 (9th Cir. 1971).

The district court found “material issues of fact disputed” and concluded that it was possible for the Government to prevail. Based on this determination, and the rule in Thrower , the district court was correct in holding it was without jurisdiction to hear the estoppel claim, Nut Margarine notwithstanding. Appellant’s proper remedy is either through the Tax Court, or to pay the tax, and sue for a refund in federal court.

The order of the district court is affirmed.

See footnote 1. . Since the district court denied appellees’ motion for summary judgment as to the year 1959, this appeal is not concerned with the invalidity of the 1959 notice of deficiency.