Phyllis Carr v. Irs ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHYLLIS CARR, No. 21-17100
Plaintiff-Appellant, D.C. No. 3:20-cv-00744-WHO
v. MEMORANDUM*
UNITED STATES INTERNAL REVENUE
SERVICE; CHARLES P. RETTIG, in his
official capacity as Commissioner of Internal
Revenue; MIN JIE MA; UNITED STATES
OF AMERICA,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Submitted January 18, 2023**
Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.
Phyllis Carr appeals pro se the district court’s judgment in her action under
26 U.S.C. § 7422 seeking a tax refund from the IRS for tax year 2012. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Big Sandy Rancheria
Enterprises v. Bonta, 1 F.4th 710, 719 (9th Cir. 2021) (dismissal for lack of subject
matter jurisdiction); Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016)
(cross motions for summary judgment). We affirm.
The district court properly granted summary judgment to defendants because
Carr failed to raise a genuine dispute of material fact as to whether she timely filed
a formal administrative refund claim or adequately provided the IRS notice of an
informal claim. See Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088-89
(9th Cir. 2007) (stating that a district court is divested of jurisdiction if taxpayer
fails to file a formal administrative refund claim); United States v. Kales, 314 U.S.
186, 194 (1941) (stating that notice of an informal claim must fairly advise the IRS
“of the nature of the taxpayer’s claim”).
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.
2 21-17100