[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 31, 2007
No. 06-12817 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00527-CV-2-FTM-33-SPC
WARREN THOMAS BARRY,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 31, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Warren Thomas Barry challenged an Internal Revenue Service (“IRS”)
Collection Due Process (“CDP”) determination in federal district court. The
district court dismissed for lack of subject matter jurisdiction. We affirm.
Barry argues that the district court had subject-matter jurisdiction over his
action because he raised due process issues. Barry contends that, because he
alleged violations of the U.S. Constitution and federal statutes, the Tax Court may
not hear his appeal because it “is unable to make a ruling of this constitutional
magnitude.” In support of his argument, Barry relies heavily on Schulz v. IRS,
413 F.3d 297 (2nd Cir. 2005).1 We review issues of subject matter jurisdiction de
novo. Popowski v. Parrott, 461 F.3d 1367, 1372 (11th Cir. 2006).
Under the Internal Revenue Code, when a person who owes a tax neglects or
refuses to pay it, the amount owed becomes a lien in favor of the government. 26
U.S.C. § 6321. If the person refuses to pay within ten days of notice and demand
for payment, the IRS may collect the tax by levying on the taxpayer’s property. 26
U.S.C. § 6331(a). The IRS, however, may not collect by levy until the taxpayer is
notified of the right to request a CDP hearing within 30 days of the notice. 26
U.S.C. § 6330(a). If the taxpayer requests a CDP hearing, he may appeal within 30
days of the decision resulting from the hearing. 26 U.S.C. § 6330(d)(1).
An appeal from a CDP ruling must be filed in the Tax Court unless the Tax
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Because the district court correctly determined that it lacked jurisdiction, we decline to
address the merits of Barry’s due process claims.
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Court does not have jurisdiction over the underlying tax liability, in which case, the
appeal is filed in the district court. Id. The Tax Court has exclusive jurisdiction
over challenges to the IRS’s CDP determination of an income tax liability. 26
U.S.C. §§ 6213(a), 6330(d)(1), 7442; 26 C.F.R. §§ 301.6330-1(f)(1),
601.102(b)(1)(i).
Other circuits have concluded that the mere allegation of a due process
violation does not confer jurisdiction on the district court if the underlying dispute
concerns income taxes. See Voelker v. Nolen, 365 F.3d 580, 581 (7th Cir. 2004);
Marino v. Brown, 357 F.3d 143, 146 (1st Cir. 2004). We followed those cases
previously in an unpublished decision and we do so again here. Peterson
v. Kreidich, 139 Fed.Appx. 134, 136 (11th Cir. 2005). The United States cannot
be sued without its consent, and the only consent in a case like this is to be sued in
the Tax Court.
Schulz, the case on which Barry relies, is inapposite. It did not hold that a
federal court has subject matter jurisdiction over a challenge to a CDP hearing. It
dealt with a completely different issue: whether a taxpayer may be punished for
refusing to comply with an IRS summons before that summons is enforced in
federal court. See Schulz, 413 F.3d at 302. The Second Circuit has agreed, in an
unpublished opinion, that the Tax Court has exclusive jurisdiction over claims such
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as Barry’s. See Silver v. Smith, 70 Fed. Appx. 17, 20 (2d Cir. 2003). Barry has
identified no other relevant authority. Accordingly, because the underlying dispute
in this case is about income taxes, the district court correctly held that the Tax
Court has exclusive jurisdiction over the case and its ruling is hereby affirmed.
AFFIRMED.
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