Michael Conzelman v. United States

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL A. CONZELMAN, No. 19-55190
Plaintiff-Appellant, D.C. No. 8:18-cv-00431-DOC-DFM
and
MEMORANDUM*
RHOSAN K. CONZELMAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Michael A. Conzelman appeals pro se from the district court’s judgment
*
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).
dismissing his action related to his income tax liability for tax year 2012. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Dexter v. Colvin, 731
F.3d 977, 980 (9th Cir. 2013) (dismissal for lack of subject matter jurisdiction);
Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P.
12(b)(6)). We affirm.
The district court properly dismissed Conzelman’s claim for a tax refund
under 26 U.S.C § 7422 because Conzelman failed to file his claim within three
years of filing his 2012 return. See 26 U.S.C. § 6511(a) (setting forth limitations
period for refund claim); United States v. Brockamp, 519 U.S. 347, 353 (1997)
(equitable tolling does not apply to § 6511’s time limitations for refund claims).
The district court properly dismissed Conzelman’s claims for damages under
26 U.S.C. § 7433 because Conzelman failed to allege facts sufficient to show any
unauthorized collection activity. See Hebbe, 627 F.3d at 341-42 (although pro se
pleadings are construed liberally, plaintiff must present factual allegations
sufficient to state a plausible claim for relief); Miller v. United States, 66 F.3d 220,
223 (9th Cir. 1995) (the assessment or tax determination process does not
constitute an act of collection and is therefore, not actionable under § 7433).
AFFIRMED.
2 19-55190