United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 13, 2003
Charles R. Fulbruge III
No. 02-11370 Clerk
Summary Calendar
STUART E. GLASS,
Plaintiff-Counter Defendant-Appellant,
versus
UNITED STATES OF AMERICA,
Defendant-Counter Claimant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
(3:00-VC-1543-L)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Glass appeals a summary judgment dismissing, without
prejudice, his 26 U.S.C. § 7433 claims (damages for improper
collection of Federal taxes) and his 26 U.S.C. § 7422 claim for
refund of $ 1,249. The district court concluded it lacked subject
matter jurisdiction over these claims because Glass failed to
exhaust his administrative remedies.
Sections 7422 and 7433 provide a limited waiver of sovereign
immunity. Under § 7422, a taxpayer may sue for a refund of taxes
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
erroneously or illegally assessed; under § 7433, for direct
economic damages “in connection with any collection of Federal tax
with respect to a taxpayer”, where an IRS officer or employee
intentionally, recklessly, or negligently disregards provisions of
the tax code or regulations.
Both provisions limit the sovereign immunity waiver by
requiring taxpayers to file administrative claims before seeking
remedies under these statutes. 26 U.S.C. § 7422(a)(no suit “until
a claim for refund ... has been duly filed with the Secretary”); 26
U.S.C. § 7433(d)(1) (no damages “unless the court determines that
the plaintiff has exhausted the administrative remedies available
to such plaintiff within the” IRS).
Of course, when a plaintiff suing the United States has failed
to satisfy the terms of a waiver provision, the court lacks
jurisdiction. E.g., Koehler v. United States, 153 F.3d 263, 266
(5th Cir. 1998) (no waiver where action outside scope of 28 U.S.C.
2410(a) (authorizing action to quiet title where United States
holds lien or mortgage on property); Porter v. Fox, 99 F.3d 271,
274 (8th Cir. 1996) (failure to exhaust administrative remedies
under § 7433 deprives court of jurisdiction); Venen v. United
States, 38 F.3d 100, 103 (3d Cir. 1994) (same); Conforte v. United
States, 979 F.2d 1375, 1377 (9th Cir. 1993) (same).
The requisite administrative procedures necessary for bringing
a § 7433 claim are found in 26 C.F.R. § 301.7433-1(e). Shaw v.
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United States, 20 F.3d 182, 183 (5th Cir.), cert. denied, 513 U.S.
1041 (1994). This regulation states that putative plaintiffs must
file an administrative claim and wait six months before bringing an
action in district court. 26 C.F.R. § 301.7433-1(a) & (d). The
claim must be in writing and signed by the taxpayer or his
authorized representative and must state: the taxpayer's name and
address; the grounds for the claim; a description of injuries; and
the dollar amount of the claim. 26 C.F.R. § 301.7433-1(e).
For the § 7433 improper collection claim, at issue are the
following IRS actions: (1) a 5 April 1999 Notice of Tax Due on
Federal Tax Return; (2) a 2 August 1999 Notice of Intent to Levy;
and (3) a 13 September 1999 notice of withholding a $ 1,249 refund
as partial payment of a 26 U.S.C. § 6672 civil penalty.
Glass asserts that two letters, dated 3 June and 3 September
1999, are administrative claims, respectively, for the first two
purportedly improper collection actions. The district court held
these letters are not administrative claims because they do not
request an administrative hearing. As noted, 26 C.F.R. § 301.7433-
1(e) does not require such a request. Nonetheless, these letters
fail to meet § 301.7433-1(e)’s requirements. Although these
letters challenge the assessment of $17,052.68 and request a refund
of $100 for tax liability, they do not assert improper collection
or a dollar amount in damages for that claimed improper conduct.
See Shaw, 20 F.3d at 184 (“improper assessment deals with the
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decision to impose tax liability while improper collection activity
involves conduct of an agent trying to collect the taxes owed”).
As for the last collection action and the § 7422 refund claim
of $1,249, the district court concluded Glass failed to submit an
administrative claim. Glass asserts: the 3 September 1999 letter
properly challenged the underlying action for which the IRS
withheld the $1,249; the IRS' withholding this money was
unforeseeable; and his administrative remedies were thereby
exhausted. As stated above, the 13 September letter is not an
administrative claim; and the record does not reflect Glass
submitted other letters regarding the $1,249 withholding.
AFFIRMED
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