Michael Conzelman v. United States

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2020
• Docket: 19-55190
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL A. CONZELMAN, No. 19-55190

Plaintiff-Appellant, D.C. No. 8:18-cv-00431-DOC-DFM

and MEMORANDUM* RHOSAN K. CONZELMAN,

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Michael A. Conzelman appeals pro se from the district court’s judgment

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismissing his action related to his income tax liability for tax year 2012. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Dexter v. Colvin, 731

F.3d 977, 980 (9th Cir. 2013) (dismissal for lack of subject matter jurisdiction);

Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P.

12(b)(6)). We affirm.

The district court properly dismissed Conzelman’s claim for a tax refund

under 26 U.S.C § 7422 because Conzelman failed to file his claim within three

years of filing his 2012 return. See 26 U.S.C. § 6511(a) (setting forth limitations

period for refund claim); United States v. Brockamp, 519 U.S. 347, 353 (1997)

(equitable tolling does not apply to § 6511’s time limitations for refund claims).

The district court properly dismissed Conzelman’s claims for damages under

26 U.S.C. § 7433 because Conzelman failed to allege facts sufficient to show any

unauthorized collection activity. See Hebbe, 627 F.3d at 341-42 (although pro se

pleadings are construed liberally, plaintiff must present factual allegations

sufficient to state a plausible claim for relief); Miller v. United States, 66 F.3d 220,

223 (9th Cir. 1995) (the assessment or tax determination process does not

constitute an act of collection and is therefore, not actionable under § 7433).

AFFIRMED.

2 19-55190