Irwin Koff Darline Ruth Koff v. United States

3 F.3d 1297 72 A.F.T.R.2d 93 -5845, 93-2 USTC P 50,520 Irwin KOFF; Darline Ruth Koff, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. No. 91-16839. United States Court of Appeals, Ninth Circuit. Submitted Oct. 8, 1992 * . Memorandum Disposition Oct. 23, 1992. Memorandum Withdrawn Sept. 1, 1993. Decided Sept. 1, 1993. Irwin Koff, Darline Ruth Koff, pro se. Gary R. Allen, Tax Div., U.S. Dept. of Justice, Washington, DC, for defendant-appellee. Appeal from the United States District Court for the Eastern District of California. Before FERGUSON, O'SCANNLAIN, and RYMER, Circuit Judges. PER CURIAM: 1 Upon rehearing, we contemplate the extent to which 28 U.S.C. Sec. 2410 waives the United States' sovereign immunity from suit in tax cases. Our previous unpublished memorandum, 978 F.2d 715 , filed October 23, 1992, is withdrawn.I 2 Irwin and Darline Koff ("the Koffs"), acting pro se, brought suit pursuant to 28 U.S.C. Sec. 2410 (a) to quiet title to certain of their property on which the IRS had placed federal tax liens. The Koffs allege that the liens are procedurally defective, hence invalid. The district court granted summary judgment in favor of the government.…

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…

concurring:

I concur in the judgment. I write separately to explain why we need not use this case to resolve any conflict that exists between Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990) and Arford v. United States, 934 F.2d 229, 232 (9th Cir.1991). As Part III of the per curiam opinion makes clear, the Koffs’ claim is entirely insubstantial on the merits: they have produced no evidence that there actually was a procedural defect in the notice of assessment. Because the jurisdictional question is quite difficult, our wisest course is to assume without deciding that jurisdiction exists and proceed to affirm on the merits. We have unequivocally held that *1299 we are constitutionally empowered to do so under the doctrine of hypothetical jurisdiction. See Clow v. United States Dep’t. of Hous. & Urban Dev., 948 F.2d 614 , 616 n. 2 (9th Cir.1991) (per curiam).

Judge O’Scannlain believes we have no jurisdiction to resolve this ease on its insubstantial merits because he apparently continues to adhere to his dissenting stance in Clow. However, as Judge O’Scannlain explains in his concurrence in the case at bar, this panel has “no authority to overrule the decision of any other…

concurring:

I concur in the judgment but write separately because I believe the Koffs’ claim that no proper assessment was made against them is jurisdictionally barred. Elias v. Connett, 908 F.2d 521, 527 (9th Cir.1990) (“A *1301 taxpayer may not use a section 2410 action to collaterally attack the merits of an assessment.”)- However, their claim that the IRS’s failure to follow the assessment procedures of 26 U.S.C. § 6203 renders the tax lien against them invalid is cognizable under § 2410. Alford v. United States, 934 F.2d 229, 232 (9th Cir.1991); see also Elias, 908 F.2d at 527 ; James v. United States, 970 F.2d 750, 755 (10th Cir.1992).

Judge O’Scannlain opines that Elias and Arford are in conflict, because Alford permits a challenge under § 2410 to “the procedural lapses of the assessment under § 6203.” 934 F.2d at 232 . Judge O’Scannlain reads this language as conflicting with the rule of Elias that § 2410 may not be used to challenge the validity of an assessment.

I read Afford to hold that § 2410 allows a taxpayer to make a procedural argument that a defect in the recording of an assessment or in the transmission of a copy of the record of assessment renders a tax lien…

Upon rehearing, we contemplate the extent to which 28 U.S.C. § 2410 waives the United States’ sovereign immunity from suit in tax cases. Our previous unpublished memorandum, 978 F.2d 715 , filed October 23, 1992, is withdrawn.,

*1298 I

Irwin and Darline Koff (“the Koffs”), acting pro se, brought suit pursuant to 28 U.S.C. § 2410 (a) to quiet title to certain of their property on which the IRS had placed federal tax liens. The Koffs allege that the liens are proeedurally defective, hence invalid. The district court granted summary judgment in favor of the government. We affirm.

The Koffs predicate their claims for relief on 26 U.S.C. § 6203 , which provides that, “[u]pon request of the taxpayer, the secretary shall furnish the taxpayer a copy of the record of the assessment.” The Koffs assert that this section entitles them to a copy of the actual document by which the assessment was effected, namely, the “summary record of assessment” on Form 23C. See 26 C.F.R. § 301.6203-1 (“The assessment shall be made by an assessment officer signing the summary record of assessment.”). That the government has failed to produce a copy of the summary record of assessment, they say, implies…