Gardner v. Peters

280 F. App'x 602

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 27, 2008
• Docket: No. 06-16647
• Status: Published

Opinion

MEMORANDUM

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Fredric Gardner, Elizabeth Gardner, and Beth-el Aram Ministries appeal the district court’s grant of Defendants’ motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

The Internal Revenue Service (IRS) provided sufficient notice to the Gardners’ last known address. See 26 U.S.C. § 6330; Williams v. IRS, 935 F.2d 1066, 1067 (9th Cir.1991). The Gardners did not request a hearing within the statutory period, thus they were only entitled to an “equivalent hearing.” See 26 U.S.C. § 6330(a)(3)(B); 26 C.F.R. § 301.6330-1(i)). Therefore, the district court did not err in finding that the Gardners submitted an untimely request for a Collections Due Process (CDP) hearing, and therefore lacked subject matter jurisdiction to review the Decision Letter issued by the IRS. See 26 U.S.C. § 6330(d)(2); 26 C.F.R. § 301.6330-1(0(2), “Q&A-16”.

The Gardners were not entitled to injunctive relief because (1) they were not entitled to a CDP hearing, see 26 U.S.C. § 6330(e)(1), and (2) they were unable to show the government would not ultimately prevail, see Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7, 82 S.Ct. 1125, 8 L.Ed.2d 292 (1962).

Beth-el Aram Ministries did not state a claim for wrongful levy because the levy was placed on property in which the Gardners had an interest at the time the lien arose. See Sessler v. United States, 7 F.3d 1449, 1451 (9th Cir.1993); 26 C.F.R. § 301.7426-1(b).

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.