concurring in the judgment:

I agree that Part II of the per curiam opinion represents the proper resolution of the merits of the taxpayers’ arguments in this case. I believe, however, that this panel ought never to have reached the merits. In my view, there is a conflict in this court’s precedents that prevents us from asserting jurisdiction here, and requires that we recommend that this case be decided by our en banc court.

I

It is settled that 28 U.S.C. § 2410 serves to abrogate the United States’ sovereign immunity from suit only with respect to challenges to “the procedural validity of a tax lien” — “[a] taxpayer may not use a section 2410 action to collaterally attack the merits of an assessment.” Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990). See Powelson v. United States, 979 F.2d 141 , 145 (9th Cir.1992); Hughes v. United States, 953 F.2d 531, 538 (9th Cir.1992); Afford v. United States, 934 F.2d 229, 232 (9th Cir.1991). Our cases agree on this much. They differ, however, with respect to how the line is to be drawn between a challenge to “the procedural validity of a tax lien” and a challenge to “the merits of an assessment.”

A

In Elias, we held that a taxpayer’s allegation that “a lawful assessment against him does not exist” goes to “the merits of [his] assessment rather than the procedural validity of the IRS’s lien,” and thus does not state a claim cognizable under section 2410. Elias, 908 F.2d at 527 . The Koffs allege that the tax lien placed on their property is invalid because the IRS did not properly follow its internal procedures in effecting the assessment upon which the lien is based. Although the legal result for which the Koffs contend is that the lien is invalid, the basis of this contention is that “a lawful assessment against [them] does not exist.” Under Elias , then, the Koffs’ suit constitutes an attack on the merits of their assessment, to which the waiver of sovereign immunity in section 2410 does not extend.

B

In Afford , the taxpayers “alleged that the government [ ] did not assess their taxes as required by [section] 6203.” 934 F.2d at 231 . Without discussing Elias , we held that this allegation stated a claim cognizable under section 2410: “to the extent [the Arfords] are challenging the procedural lapses of the assessment under § 6203, 28 U.S.C. § 2410 does serve as a waiver of sovereign immunity.” Id. at 232 . The Koffs’ allegation that the IRS did not properly follow its internal assessment procedures is indistinguishable from the Arfords’ claim “that the government [] did not assess their taxes as required by” law. Under Afford , then, the Koffs’ suit presents a claim of “procedural lapse[ ]” which falls within the waiver of sovereign immunity in section 2410.

II

To my mind, Elias and Afford are plainly in conflict. Moreover, I believe that en banc resolution of this conflict is unavoidable, for I am unable to agree with either of the approaches my colleagues have taken in this matter.

*1300 Judge Ferguson would avert the need to recognize the conflict between Elias and Ar-ford by assuming for purposes of decision that we have jurisdiction, and deciding this case on the merits. This sort of solution is undeniably an attractive and, in general, a useful one. Under the circumstances, however, I believe it is unavailable to us. As I have explained at length elsewhere, I believe we are forbidden to assume we have jurisdiction to exercise the judicial power created by Article III and vested in us by statute. See Clow v. United States Dep’t of Housing & Urban Dev., 948 F.2d 614 , 619 (9th Cir.1991) (O’Scannlain, J., dissenting).

Judge Rymer, meanwhile, would attempt to reconcile Elias and Arford. With respect, I think her attempt does not succeed. Section 6203 provides (1) that assessments must “be made ... in accordance with rules and regulations prescribed by the Secretary,” and (2) that “a copy of the record of the assessment” must be given the taxpayer “upon request.” Arford held that a claim of “procedural lapses of the assessment under § 6203” is cognizable under section 2410. Judge Rymer would “read th[is] language ... to mean that § 2410 allows a taxpayer to make the procedural argument that she did not receive notice of her assessment which is required by § 6203 and that a tax lien is therefore invalid.” That is, Judge Rymer would read Arford as extending only to the second requirement of section 6203, not to the first.

I cannot accept this approach for, unfortunately, this is assuredly not what Arford actually held. Neither the language of the opinion nor the facts in Arford provide any basis for reading the phrase “procedural lapses in the assessment” to mean only “failure to provide a copy of the record of the assessment upon request.” The Arfords did not allege only the latter sort of failure. They allege that the government “did not assess their taxes as required” by law. In holding that this allegation stated a claim under section 2410, Arford in no way implied that the only “procedural lapses” that counted were those that involved failure to provide the taxpayer with required documentation.

Ill

Sitting as a three-judge panel, we have no authority to overrule the decision of any other three-judge panel of this court. See, e.g., United States v. Washington, 872 F.2d 874, 880 (9th Cir.1989). Neither do we have the power to “make [a] choice between two opposing lines of authority.” Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988), overruled en banc, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc). Further, in this instance, we are not permitted to assume the irrelevance of the conflict for purposes of decision, because the conflict goes to our very jurisdiction to hear this appeal. Finally, I see no way to bring about a persuasive and final reconciliation between the cases that are the source of the conflict.

I believe we do ourselves little credit, and the lawyers and litigants who practice before us little good, when we ignore an irreconcilable conflict in our decisions. We must inevitably produce such conflicts. To be sure, we can paper them over easily enough. But in doing so we tolerate and, indeed, encourage, abiding uncertainties in our circuit law, undermining the predictability and uniformity of treatment for which we are bound to strive. The law of this circuit, in short, is far more likely to develop in a rational fashion when we acknowledge our mistakes and move quickly to correct them than when we contrive to disavow them.

In any event, we have declared that “the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision,” and that “[a] panel faced with such a conflict must call for an en banc review.” Hardesty, 977 F.2d at 1348 (quoting Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc), cert. denied, 485 U.S. 989 , 108 S.Ct. 1293 , 99 L.Ed.2d 503 (1988)) (emphasis in Hardesty). Although the legal issue presented here is not as significant as many we face, en banc reconsideration is nonetheless “necessary to secure ... uniformity of [our] decisions.” Fed.R.App.P. 35. We are thus bound to recommend that this case be heard by the en banc court. Rather than render a decision in this matter, I would make such a recommendation.