COURT DISMISSES WITHHOLDING-TAX SUIT.

                 IN THE UNITED STATES DISTRICT COURT

BACKGROUND

[2] On June 12, 2001, Plaintiff, acting pro se, filed a Complaint in the Circuit Court of the First Circuit in the State of Hawaii. Defendants removed the action to this court on July 5, 2001. Although the Complaint is very difficult to understand, Plaintiff appears to be challenging Defendants'¹ alleged withholding of certain money belonging to him. Apparently, the Complaint arises from a levy that the Internal Revenue Service ("IRS") placed on Plaintiff's wages. Plaintiff contends that the levy was improper and that funds are being illegally withheld from him, although he does not specifically list causes of action against Defendants.

[3] On July 10, 2001, Defendants Hilton Grand Vacations and Rebecca Sloan filed a Motion to Dismiss Plaintiff's Complaint, arguing, among other things, that 26 U.S.C. § 6332 rendered them immune from suit. On August 9, 2001, the other named Defendants (the IRS agents, represented by the United States) also filed a Motion to Dismiss, arguing, among other things, that it has sovereign immunity and that Plaintiff, in any event, cannot challenge the wage levy by filing suit in the district court. On August 13, 2001, Plaintiff filed a brief opposition to the Motions. Defendants did not file any Replies.

[4] Shortly before these Motions to Dismiss were to be heard, Plaintiff (still acting pro se) filed a Motion for Preliminary Injunction and Temporary Restraining Order on September 18, 2001. The Motion sought to restrain Defendants from continuing to hold Plaintiff's money. It contained no legal argument or authority. On September 21, 2001, the court denied this motion, finding that it would not be prudent to address it so soon before the hearing on the Motions to Dismiss. Moreover, the court held that Plaintiff's Motion did not meet the requirements necessary for the issuance of the TRO; specifically, Plaintiff had not raised any serious questions or shown a likelihood of success on the merits.

[5] Currently before the court are Defendants' Motions to Dismiss Plaintiff's Complaint.

STANDARD OF REVIEW

[6] A motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). For the purposes of a 12(b)(6) motion, "[r]eview is limited to the contents of the complaint." Clegg v. Cult Awareness Network, 18 F.3d 752, 755 (9th Cir. 1994).

[7] A complaint should not be dismissed "unless it appears beyond doubt that plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Buckey v. County of Los Angeles, 968 F.2d 792., 794 (9th Cir. 1992) (quoting Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989) (further citations omitted). All allegations of material fact are taken as true and construed in the light most favorable to the plaintiff. Id.

[8] To the extent, however, that "matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed. R. Civ. P. 12(b); Del Monte Dunes at Monterey, Ltd. v. Monterey, 920 F.2d 1496, 1507 (9th Cir. 1990).

DISCUSSION

A. Hilton and Rebecca Sloan's Motion to Dismiss

[9] Defendants Hilton and Rebecca Sloan argue that 26 U.S.C. § 6332(e) renders them immune from liability based on their compliance with an IRS Notice of Levy. This court agrees. The statute states:

     Any person in possession of (or obligated with respect to)

B. The Government's Motion

[10] The Government has also moved to dismiss this case against the three named IRS employees. It argues essentially that the United States has not waived sovereign immunity. The court again agrees.

[11] The United States is a sovereign and as such, is immune from suit without its prior consent. See Hutchinson v. United States, 677 F.2d 1322, 1327 (9th Cir. 1982). The Government's sovereign immunity is broad and generally cannot be abrogated except by express waiver. See Miller v. United States, 66 F.3d 220, 222 (9th Cir. 1995) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 33-35 (1992)). Moreover, plaintiffs have the burden of establishing subject matter jurisdiction, i.e., that sovereign immunity has been waived in a given case. See Haisten v. Grass Valley Medical Reimbursement Fund, Ltd., 784 F.2d 1392, 1396 (9th Cir. 1986).

[12] Here, Plaintiff has made no showing that the United States has waived sovereign immunity such that he can bring the instant claims against the IRS. Several sections of the Tax Code do waive sovereign immunity in certain circumstances, but none of them apply here. For example, 26 U.S.C. § 7426(a) provides that third parties may sue the Government when their property has been levied to satisfy the tax lien of another. But, the taxpayer himself is not entitled to bring such suit. See Allied/Royal Parking L.P. v. United States, 166 F.3d 1000, 1004 (9th Cir. 1999). In addition, the Declaratory Judgment Act does not help Plaintiff here (insofar as he is seeking a declaratory judgment) because even though courts typically have jurisdiction under the Act, they may not grant relief in controversies "with respect to Federal taxes." 28 U.S.C. § 2201.

[13] Before a taxpayer can bring suit in district court, he must either seek review in the Tax Court or else pay the entire amount due and sue for a refund. See Life Science Church v. Internal Revenue Service, 525 F. Supp. 399, 402-03 (N.D. Cal. 1981) (citations omitted); see also 26 U.S.C. § 1346(a)(1) (regarding refund suits). In this case, Plaintiff has made no showing that he has complied with either of these prerequisites.² All told, Plaintiff has not established in any way a waiver of sovereign immunity such that this court can proceed with this case.

[14] Finally, the court notes that even it there were not a sovereign immunity problem here, the court would still grant the Government's Motion to Dismiss because the Complaint is so vague and confusing as to not even meet the extremely liberal pleading requirements of Federal Rule of Civil Procedure 8. Rule 8 requires complaints to set forth "a short and plain statement of the grounds upon which the court's jurisdiction depends," and "a short and plain statement of the claim showing that the pleader is entitled to relief." As noted earlier, Plaintiff did not set forth a waiver of sovereign immunity and therefore failed to establish grounds for this court's jurisdiction. In addition, while Plaintiff's Complaint is quite long, it fails to set out specific statutory or common laws claims on which Plaintiff might be entitled to relief, leaving this court to guess the sources of Plaintiff's claims. For this reason too, then, Plaintiff's Complaint fails to state a claim on which relief may be granted. The Government's Motion to Dismiss, therefore, is GRANTED WITHOUT PREJUDICE for Plaintiff to seek relief under the appropriate circumstances in the U.S. Tax Court.

CONCLUSION

[15] For the foregoing reasons, the court GRANTS Defendants' Motions to Dismiss.

[16] IT IS SO ORDERED.

[17] DATED: Honolulu, Hawaii, October 16, 2001.

                                   David Alan Ezra

² The instant suit cannot be construed as a refund suit, as it appears that Plaintiff has not yet paid the entire amount. Moreover, a refund suit must be brought against the United States and not against individually named IRS agents, as Plaintiff has done here. See 26 U.S.C. § 7422(f).

JUDGMENT IN A CIVIL CASE

     [ ] Jury Verdict. This action came before the Court for a

that Judgment is entered in favor of Defendants and against Plaintiff, pursuant to the "Order Granting Defendants' Motions to Dismiss" filed on October 16, 2001.

cc: all parties and counsel of record

 Date: October 24, 2001