Gardner v. Peters

MEMORANDUM ** Fredric Gardner, Elizabeth Gardner, and Beth-el Aram Ministries appeal the district court’s grant of Defendants’ motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm. The Internal Revenue Service (IRS) provided sufficient notice to the Gardners’ last known address. See 26 U.S.C. § 6330 ; Williams v. IRS, 935 F.2d 1066, 1067 (9th Cir.1991). The Gardners did not request a hearing within the statutory period, thus they were only entitled to an “equivalent hearing.” See 26 U.S.C. § 6330 (a)(3)(B); 26 C.F.R. § 301.6330-1 (i)). Therefore, the district court did not err in finding that the Gardners submitted an untimely request for a Collections Due Process (CDP) hearing, and therefore lacked subject matter jurisdiction to review the Decision Letter issued by the IRS. See 26 U.S.C. § 6330 (d)(2); 26 C.F.R. § 301.6330-1 (0(2), “Q&A-16”. The Gardners were not entitled to injunctive relief because (1) they were not entitled to a CDP hearing, see 26 U.S.C. § 6330 (e)(1), and (2) they were unable to show the government would not ultimately prevail, see Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 , 82 S.Ct. 1125 , 8 L.Ed.2d 292 (1962). Beth-el Aram Ministries did not state a claim for wrongful levy because the levy was placed on property in which the Gardners had an interest at the time the lien arose. See Sessler v. United States, 7 F.3d 1449, 1451 (9th Cir.1993); 26 C.F.R. § 301.7426-1 (b). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.