Sorenson v. O'Neill

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 8 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
VERN W. SORENSON;
OLIVENE C. SORENSON,
Plaintiffs-Appellants,
v. No. 02-4217
(D.C. No. 2:02-CV-293-DB)
PAUL H. O’NEILL, Lienor, Office (D. Utah)
of the Secretary of the United States
Treasury,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Vern W. and Olivene C. Sorenson, appearing pro se, appeal from the denial
of their “Petition to Vacate a Void Judgment and Petition to Remand Case Back
to State Jurisdiction,” which the district court construed as a motion for
reconsideration under Federal Rule of Civil Procedure 60(b). Because we
conclude that the district court did not abuse its discretion in denying the motion,
we affirm.
Petitioners sought, in Utah state court, to “cancel” federal tax liens filed
against them through filing what they called an “in rem” action naming the liens,
the Secretary of the Treasury, and two other Treasury Department employees as
defendants. In the complaint, the Sorensons accused the Treasury employees of
filing fraudulent liens for unpaid income taxes. The case was properly removed
to federal court pursuant to 28 U.S.C. § 1442, where the United States was
substituted for the employee-defendants. The court dismissed the case for lack of
subject matter jurisdiction because the Sorensons had not complied with the
requirement that they either (1) timely challenge the imposition of the income tax
underlying the lien by appealing to the Tax Court or (2) pay the outstanding taxes
and file for a refund with the Internal Revenue Service before filing suit to
challenge the taxes. See Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir. 1992).
The court denied their motion to reconsider.
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The Sorensons did not file a notice of appeal in time to challenge the merits
of the district court’s dismissal. Fed. R. App. P. 4(a)(4)(B)(ii); Van Skiver v.
United States, 952 F.2d 1241, 1243 (10th Cir. 1991). But their notice of appeal
was sufficient to appeal from the court’s denial of their Rule 60(b) motion.
See Fed. R. App. P. 4(a)(1)(B). An appeal from a denial of a motion for
reconsideration filed more than ten days after entry of judgment “raises for review
only the district court’s order of denial and not the underlying judgment itself.”
Van Skiver, 952 F.2d at 1243.
Petitioners allege that they are not subject to federal tax laws, assert that
the United States Attorney has no authority to represent defendants, and challenge
the district court’s subject matter jurisdiction on different grounds and its refusal
to remand their case to state court, which they claim has exclusive subject matter
jurisdiction over this case. We need not waste judicial resources explaining once
again why the Sorensons are subject to federal tax laws, just like everyone else
who lives in the United States. See Lonsdale v. United States, 919 F.2d 1440,
1447-48 & n.4 (10th Cir. 1990); Crain v. Comm’r, 737 F.2d 1417, 1417-18
(5th Cir. 1984). Nor need we explain why the U.S. Attorney’s office has both the
authority and the duty to represent the United States and its employees in suits
challenging the imposition and collection of tax revenues.
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Petitioners’ assertion that the district court was required to remand the case
to state court is plainly without merit. Under the Anti-Injunction Act, 26 U.S.C.
§ 7421(a), no court, including the Utah state court, had subject matter jurisdiction
to entertain a challenge to the federal tax liens at issue under these circumstances.
See Lonsdale, 919 F.2d at 1442-44. Petitioners simply refuse to accept that,
because they failed to challenge the tax assessments by following the statutory
procedures, they cannot now seek judicial relief to restrain enforcement of
the liens.
The district court’s judgment is AFFIRMED; the “Petition for Declaratory
Relief” is DENIED. The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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