Summary
dismissing claims because defendants were immune from liability under § 6332(e)
Summary of this case from McKenzie-El v. Internal Revenue Serv.Opinion
No. 11-55489 D.C. No. 2:10-cv-05167-DSF-E
04-23-2013
JOEL DAVID JOSEPH, Plaintiff - Appellant, v. UNITED STATES OF AMERICA; MURIEL SIEBERT & CO., INC., Defendants - Appellees., M. RAANAN, Defendant,
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
Joel David Joseph appeals pro se from the district court's judgment dismissing his action arising out of an Internal Revenue Service ("IRS") levy to collect unpaid taxes. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of subject matter jurisdiction, BNSF Ry. Co. v. O'Dea, 572 F.3d 785, 787 (9th Cir. 2009), and a dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). We affirm.
The district court properly dismissed Joseph's claim for damages against the IRS under 26 U.S.C. § 7433 because Joseph failed to allege facts sufficient to show that he pursued an administrative claim before filing his action. See 26 U.S.C. § 7433(d)(1) (requiring taxpayers to exhaust administrative remedies as a prerequisite to filing an action for damages regarding improper tax collection); 26 C.F.R. § 301.7433-1(e) (specifying required administrative remedies); Conforte v. United States, 979 F.2d 1375, 1377 (9th Cir. 1992) (failure to exhaust administrative remedies under § 7433(d)(1) deprived the court of jurisdiction over a taxpayer's damages claims regarding improper tax collection under § 7433(a)).
The district court properly dismissed Joseph's conversion claim against Muriel Siebert & Co. because it was immune from liability for complying with the IRS levy. See 26 U.S.C. § 6332(e).
We do not consider arguments raised for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Joseph's motion to file a supplemental reply brief is granted, and the Clerk is directed to file the supplemental reply brief received on October 14, 2011.
AFFIRMED.