Beech v. Commissioner of Internal Revenue Service

37 F. App'x 324

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2002
• Docket: No. 01-16986; D.C. No. CV-00-01274-MHM
• Status: Published

Opinion

MEMORANDUM

**

Thomas Richard Beech appeals pro se the district court’s order dismissing his action against the Internal Revenue Service (“IRS”), alleging improper tax collection, and seeking a refund, damages, and documents pursuant to the Freedom of Information Act (“FOIA”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals for lack of subject matter jurisdiction. Hughes v. United States, 953 F.2d 531, 535 (9th Cir.1992). We affirm.

The district court correctly concluded it lacked jurisdiction over Beech’s claim for a refund because Beech failed to first file a claim for a refund with the Secretary of the Treasury. See 26 U.S.C. § 7422(a); Quarty v. United States, 170 F.3d 961, 972 (9th Cir.1999). The district court also correctly concluded that the tax court had exclusive jurisdiction over Beech’s appeal from the adverse ruling in his collection proceedings. See 26 U.S.C. § 6330. The district court properly declined to recast Beech’s due process claim as a Bivens action against officials of the IRS. See Wages v. IRS, 915 F.2d 1230, 1235 (9th Cir.1990).

The district court properly found, based on IRS affidavits, that the agency conducted a search reasonably calculated to uncover all relevant documents in existence and delivered copies of those documents to Beech. See Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir.1985). Consequently, Beech’s FOIA request is moot. See Carter v. Veterans Admin., 780 F.2d 1479, 1481 (9th Cir.1986).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.