Horne v. Internal Revenue Service

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                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                        NOV 23 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT



 WILLIAM F. HORNE,                                No. 14-17183

                  Plaintiff-Appellant,            D.C. No. 3:14-cv-00214-MMD-
                                                  WGC
   v.

 INTERNAL REVENUE SERVICE,                        MEMORANDUM*

                  Defendant-Appellee.

                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                           Submitted November 16, 2016**

Before:        LEAVY, BERZON, and MURGUIA, Circuit Judges.

        William F. Horne appeals pro se from the district court’s order dismissing

his action against the Internal Revenue Service (“IRS”) arising from the

assessment of penalties and a tax lien. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal for lack of subject matter jurisdiction.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
State of Neb. ex rel. Dep’t of Soc. Servs. v. Bentson, 146 F.3d 676, 678-79 (9th Cir.

1998). We affirm.

      The district court properly dismissed Horne’s action for lack of subject

matter jurisdiction because Horne failed to allege facts sufficient to show that he

complied with the prerequisites to challenging a penalty assessed under 26 U.S.C.

§ 6700. See 26 U.S.C. § 6703(c)(1), (2) (prerequisites to challenging a § 6700

penalty); Korobkin v. United States, 988 F.2d 975, 976 (9th Cir. 1993) (method by

which a taxpayer may challenge a §6700 penalty); Thomas v. United States, 755

F.2d 728, 729 (9th Cir. 1985) (with one exception, the district court has no

jurisdiction over suits for a refund of penalty amounts paid until the taxpayer has

paid the full amount of the contested penalty assessment).

      The district court properly denied as moot Horne’s motion to remand. See

Bentson, 146 F.3d at 678-79 (a district court’s decision to remand a removed case

is reviewed de novo and once a case is properly removed, a district court has the

authority to decide whether it has subject matter jurisdiction over the claims).

      All pending motions are denied.

      AFFIRMED.




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