Phyllis Carr v. Irs

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2023
• Docket: 21-17100
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PHYLLIS CARR, No. 21-17100

Plaintiff-Appellant, D.C. No. 3:20-cv-00744-WHO

v. MEMORANDUM*

UNITED STATES INTERNAL REVENUE SERVICE; CHARLES P. RETTIG, in his official capacity as Commissioner of Internal Revenue; MIN JIE MA; UNITED STATES OF AMERICA,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Submitted January 18, 2023**

Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.

Phyllis Carr appeals pro se the district court’s judgment in her action under

26 U.S.C. § 7422 seeking a tax refund from the IRS for tax year 2012. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review de novo. Big Sandy Rancheria

Enterprises v. Bonta, 1 F.4th 710, 719 (9th Cir. 2021) (dismissal for lack of subject

matter jurisdiction); Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016)

(cross motions for summary judgment). We affirm.

The district court properly granted summary judgment to defendants because

Carr failed to raise a genuine dispute of material fact as to whether she timely filed

a formal administrative refund claim or adequately provided the IRS notice of an

informal claim. See Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088-89

(9th Cir. 2007) (stating that a district court is divested of jurisdiction if taxpayer

fails to file a formal administrative refund claim); United States v. Kales, 314 U.S.

186, 194 (1941) (stating that notice of an informal claim must fairly advise the IRS

“of the nature of the taxpayer’s claim”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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