931 F.2d 64
Unpublished Disposition
NOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
John S. WILLIAMSON, doing business as Williamson Water
Works, Defendant-Appellant.
No. 90-2170.
United States Court of Appeals, Tenth Circuit.
April 19, 1991.
Before STEPHEN H. ANDERSON and TACHA, Circuit Judges, and KANE,* District Judge.
ORDER AND JUDGMENT**
STEPHEN H. ANDERSON, Circuit Judge.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Defendant appeals the district court's dismissal of his motions seeking the return of property seized by the Internal Revenue Service (IRS) in satisfaction of defendant's outstanding federal income tax liabilities. Underlying defendant's claims for the return of his property is his assertion that the IRS's seizure of the property, pursuant to the execution of a writ of entry onto defendant's business premises, violated the fourth amendment.
26 U.S.C. Sec. 7421(a) provides that, with several exceptions not relevant here, "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." This provision barred defendant's claims for the return of his property. See, e.g., Lonsdale v. United States, 919 F.2d 1440, 1442 (10th Cir.1990); Lowrie v. United States, 824 F.2d 827, 830-31 (10th Cir.1987). This is so even though defendant's claims alleged constitutional deprivations. See Alexander v. "Americans United" Inc., 416 U.S. 752, 759 (1974) ("the constitutional nature of a taxpayer's claim ... is of no consequence under the Anti-Injunction Act"); see also Lowrie, 824 F.2d at 830.
A judicial exception to section 7421(a) permits injunctive relief if the taxpayer demonstrates that 1) under no circumstances can the government establish its claim to the asserted tax and 2) irreparable injury would otherwise occur. E.g., Overton v. United States, 925 F.2d 1282, 1284 (10th Cir.1991) (citing Lonsdale, 919 F.2d at 1442); Lowrie, 824 F.2d at 830. Defendant has failed to establish that this case fits within this limited exception to the Anti-Injunction Act.
The judgment of the United States District Court for the District of New Mexico is AFFIRMED. Defendant's request for sanctions under Fed.R.Civ.P. 11 is DENIED.
The mandate shall issue forthwith.
Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by designation
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3
