William Holdner v. United States , 698 F. App'x 390 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM F. HOLDNER, Holdner Farms, No. 16-36046
Plaintiff-Appellant, D.C. No. 3:16-cv-00475-BR
v.
MEMORANDUM*
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
William F. Holdner appeals pro se from the district court’s judgment
dismissing his action challenging income taxes and penalties for the tax years
2004, 2005, and 2006. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal for lack of subject matter jurisdiction. Mills v. United States,
*
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).
742 F.3d 400, 404 (9th Cir. 2014). We affirm.
The district court properly dismissed Holdner’s action for lack of subject
matter jurisdiction because Holdner failed to show that he paid the taxes in full
prior to filing suit, or that he filed a refund claim, and Holdner previously
petitioned the Tax Court challenging the assessments raised in his complaint. See
Flora v. United States, 362 U.S. 145, 177 (1960) (full payment of assessment
required before filing suit); Omohundro v. United States, 300 F.3d 1065, 1067-69
(9th Cir. 2002) (a taxpayer’s failure to file a timely refund claim divests the district
court of jurisdiction over a refund suit); First Nat’l Bank of Chicago v. United
States, 792 F.2d 954, 955-56 (9th Cir. 1986) (26 U.S.C. § 6512 has a “broad
general application so as to provide that if the taxpayer files a petition with the tax
court, the mere filing of the petition operates to deprive the district court of
jurisdiction to entertain a subsequent suit for refund.” (citation and internal
quotations omitted)).
We reject as without merit Holdner’s contention that his action qualifies as a
citizen suit under 33 U.S.C. § 1365(a).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 16-36046