Ninth Circuit Affirms Dismissal of Refund, Damages Suit

MICHAEL A. CONZELMAN,
Plaintiff-Appellant,
and
RHOSAN K. CONZELMAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

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

MEMORANDUM^*

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 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.