NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 4 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP A. DUGGAN, No. 17-35814
Plaintiff-Appellant, D.C. No. 2:16-cv-00034-SMJ
v.
MEMORANDUM*
UNITED STATES OF AMERICA; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted November 30, 2018**
Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.
Philip A. Duggan appeals pro se from the district court’s judgment in his
action for tax refunds. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 970
(9th Cir. 2011) (cross motions for summary judgment); BNSF Ry. Co. v. O’Dea,
*
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).
572 F.3d 785, 787 (9th Cir. 2009) (dismissal for lack of subject matter
jurisdiction). We affirm.
The district court properly dismissed Counts 1 and 2 for lack of subject-
matter jurisdiction because Duggan failed timely to file administrative refund
claims with the Internal Revenue Service (“IRS”). See 26 U.S.C. § 7422(a)
(requiring filing of administrative refund claim with IRS prior to filing refund
suit); 26 U.S.C. § 6511(a) (requiring refund claim to be filed within three years
from the time the return was filed or two years from the time the tax was paid,
whichever is later); Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088-89
(9th Cir. 2007) (stating that district court is divested of jurisdiction if taxpayer fails
to file an administrative refund claim). We reject as meritless Duggan’s contention
that his May 11, 2012 and December 11, 2012 letters constitute timely, informal
refund claims because the letters failed adequately to apprise the IRS of the basis
for Duggan’s refund requests. See United States v. Kales, 314 U.S. 186, 194
(1941) (notice must fairly advise the IRS “of the nature of the taxpayer’s claim”);
Commissioner v. Ewing, 439 F.3d 1009, 1015 (9th Cir. 2006) (rejecting contention
that taxpayer’s request for relief constituted an informal refund claim).
The district court did not abuse its discretion by dismissing Counts 1 and 2
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without leave to amend because amendment would be futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that dismissal without leave to amend is proper
when amendment would be futile).
The district court properly granted summary judgment for the government
and denied summary judgment for Duggan on Counts 3 through 7 because Duggan
failed to raise a genuine dispute of material fact as to whether the IRS failed to
comply with the supervisor-approval requirement when it imposed penalties for tax
years 2000 to 2004. See 26 U.S.C. § 6751(b)(1) (requiring initial assessment of
penalty to be personally approved in writing by supervisor); Hansen v. United
States, 7 F.3d 137, 138 (9th Cir. 1993) (“Form 4340 is probative evidence in and of
itself and, in the absence of contrary evidence, [is] sufficient to establish that
notices and assessments were properly made.”). Duggan’s frivolous arguments in
support of this claim are conclusively refuted by the record.
We reject as meritless Duggan’s contention that the district court should
have permitted him to present claims in this action that vary substantially from the
basis for Duggan’s claims set forth in his administrative refund claims. See Boyd
v. United States, 762 F.2d 1369, 1372 (9th Cir. 1985) (“If the [refund] claim on its
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face does not call for investigation of a question, the taxpayer may not later raise
that question in a refund suit.”).
The district court did not abuse its discretion by denying Duggan’s motion
for leave to amend the complaint as to Counts 3 through 7 because amendment
would unfairly prejudice the government and would be demonstrably futile. See
Cervantes, 656 F.3d at 1041.
We do not consider the district court’s dismissal of Counts 8 through 13
because Duggan states that he is not appealing the dismissal of those Counts.
To the extent that Duggan seeks to raise his due process claim on appeal, the
district court properly determined that Duggan failed to include that claim in his
administrative refund claim. See Boyd, 762 F.2d at 1372.
The district court properly denied Duggan’s request for an order releasing
the levy. See 26 U.S.C. § 6343(a)(1)(D) (authorizing the Secretary of the Treasury
to release a levy where it creates an “economic hardship due to the financial
condition of the taxpayer”); 26 U.S.C. § 7421(a) (prohibiting, with certain
exceptions, district court from restraining the assessment or collection of tax).
The district court did not abuse its discretion by denying Duggan’s motion
for leave to file an addendum to his opposition to the government’s motion for
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summary judgment; by granting the government’s motion to strike Duggan’s
affidavit in support of Duggan’s motion for summary judgment; and by denying as
moot Duggan’s motion for leave to file an addendum to Duggan’s reply in support
of his motion to reconsider and motion to amend the scheduling order. See S. Cal.
Edison Co. v. Lynch, 307 F.3d 794, 807 (9th Cir. 2002) (stating that “district courts
have inherent power to control their dockets” and this court “will reverse a district
court’s litigation management decisions only if it abused its discretion”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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