Alan Zinstein v. United States , 584 F. App'x 100 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2456
ALAN ZINSTEIN; JANE SILK,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:13-cv-00633-JCC-IDD)
Submitted: September 29, 2014 Decided: October 1, 2014
Before WILKINSON, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Andrew Paul Kawel, KAWEL PLLC, Miami, Florida, for Appellants.
Kathryn Keneally, Assistant Attorney General, Jonathan S. Cohen,
Kenneth W. Rosenberg, Tax Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alan Zinstein and Jane Silk (“Taxpayers”) appeal from
the district court’s orders dismissing their complaint in which
they alleged that the Internal Revenue Service failed to timely
release a tax lien and wrongfully levied on their property, and
denying their motion for reconsideration. The district court
determined that the Taxpayers failed to exhaust their
administrative remedies and also filed their complaint beyond
the two-year statute of limitations. We affirm.
The limitations period for actions under 26 U.S.C.
§§ 7432, 7433 (2012) is two years from the date the “taxpayer
has had a reasonable opportunity to discover all essential
elements of a possible cause of action.” 26 C.F.R. §§ 301.7432-
1(i)(2); 301.7433-1(g)(2) (2010). This statute of limitations,
because it represents a waiver by the United States of its
sovereign immunity, is a prerequisite to the district court’s
jurisdiction. See Gandy Nursery, Inc. v. United States, 318
F.3d 631, 637 (5th Cir. 2003) (upholding district court’s
dismissal of untimely 26 U.S.C. § 7433 claim for lack of subject
matter jurisdiction). Here, the causes of action in Taxpayers’
complaint accrued in April 2008, when the Internal Revenue
Service first levied upon the Taxpayers’ property. See
Keohane v. United States, 669 F.3d 325, 329 (D.C. Cir. 2012)
(holding that continuing violation did not apply to § 7433
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action, but rather cause of action accrued when taxpayer knew of
levy); Snyder v. United States, 260 F. App’x 488, 493 (3d Cir.
2008); Macklin v. United States, 300 F.3d 814, 824 (7th Cir.
2002) (rejecting continuing violation theory in circumstance
where there is a “single alleged wrong, the filing of a tax
lien”). The complaint, filed in May 2013, was filed beyond the
two-year limitations period, and therefore the district court
properly dismissed it for lack of jurisdiction.
Accordingly, we affirm the district court’s orders
dismissing the action for lack of jurisdiction and denying
reconsideration. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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