Schlabach v. Internal Revenue Service

FILED
NOT FOR PUBLICATION DEC 07 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN J. SCHLABACH, No. 10-35929
Plaintiff - Appellant, D.C. No. 2:09-cv-00298-FVS
v.
MEMORANDUM*
INTERNAL REVENUE SERVICE,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Fred L. Van Sickle, Senior District Judge, Presiding
Submitted December 4, 2012**
Seattle, Washington
Before: SCHROEDER, McKEOWN, and TALLMAN, Circuit Judges.
John Schlabach appeals from the district court’s order dismissing his Privacy
Act case against the Internal Revenue Service (“IRS”) for lack of subject matter
jurisdiction. He sought to have records removed from his IRS file. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
A district court does not have jurisdiction over a Privacy Act case brought
by an individual who seeks to amend a record that affects his actual or possible tax
liability. 26 U.S.C. § 7852(e); England v. Comm’r, 798 F.2d 350, 352 (9th Cir.
1986). Schlabach concedes that the letters he seeks to expunge are or were related
to an investigation of an abusive tax shelter. The documents therefore affect the
determination of his tax liability, depriving the district court of jurisdiction. Any
lack of ongoing IRS investigation does not confer jurisdiction because the record
could impact Schlabach’s future tax liability. England, 798 F.2d at 352 (finding
that an IRS record can affect subsequent tax liability). The statute moreover does
not distinguish between open and closed investigations. 26 U.S.C. § 7852(e).
AFFIRMED.