Smith v. United States

218 F. App'x 634

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 17, 2007
• Docket: No. 06-35067
• Status: Published

Opinion

MEMORANDUM

**

Gene Kimmerly Smith appeals pro se from the district court’s judgment dismissing for lack of subject matter jurisdiction his action seeking relief from taxes and penalties assessed by the Internal Revenue Service. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Imperial Plan, Inc. v. United States, 95 F.3d 25, 26 (9th Cir.1996), and we affirm.

The district court properly concluded that Smith failed to meet the jurisdictional prerequisites for filing a tax refund action, Thomas v. United States, 755 F.2d 728, 729 (9th Cir.1985), because Smith failed to allege actual payment of the assessed taxes and penalties, 28 U.S.C. § 1346(a)(1); Flora v. United States, 357 U.S. 63, 75, 78 S.Ct. 1079, 2 L.Ed.2d 1165 (1958).

Moreover, the district court properly concluded that it lacked subject matter jurisdiction to entertain Smith’s claims for declaratory and injunctive relief. See 28 U.S.C. § 2201(a) (prohibiting actions for declaratory judgment in federal tax cases); 26 U.S.C. § 7421(a) (prohibiting injunctions against any and all acts necessary or incidental to the collection of taxes); Soko-low v. United States, 169 F.3d 663, 664-65 (9th Cir.1999).

Smith’s remaining contentions lack merit.

AFFIRMED.

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