JANICE STEWART, Magistrate Judge
INTRODUCTION
Plaintiff, Wesley David Ikenberry, proceeding pro se, filed this action against the United States of America ("United States") and various employees of the Internal Revenue Service ("IRS") on May 16, 2003.
The United States has now filed a Motion to Dismiss (docket #3) pursuant to FRCP 12(b)(1) and 12(b)(6). Plaintiff has not responded to the motion. For the reasons that follow, the motion should be granted and this action dismissed.
DISCUSSION
I. Claims Alleged in the Pleadings
Plaintiff alleges that various IRS revenue agents, individually named as defendants in this case, failed to follow certain federal regulations governing the assessment and collection of taxes. Specifically, plaintiff alleges that they failed to produce required "Certificates of Assessment Form 23-C when requested to do so under authority of 26 U.S.C. [§] 6203 and 26 C.F.R. [§] 3-1.6203-1" and then proceeded with a collection action and garnishment proceeding against him in violation of the law. Complaint, pp. 1-2. The IRS apparently garnished plaintiffs social security payments (id at 3, ¶ 9) and claims that over $40,000 remains owing (id at 5).
Plaintiff alleges claims for violation(s) of: (1) 26 U.S.C. § 7602(d) (First Claim); (2) 26 U.S.C. § 7214(a) (Second and Third Claims); (3) 26 U.S.C. § 6302 and 26 C.F.R. § 301.6203-1 (Fourth Claim); (4) 5 C.F.R. § 1320.6 (Fifth Claim); (5) 26 C.F.R. § 7805(a) (Sixth Claim); (6) 1 C.F.R. § 1.1 (Seventh Claim); and (7) various federal statutes and regulations for which plaintiff seeks damages under IRC § 7433(a) (Eighth Claim). Id at 2-3. Plaintiff seeks injunctive relief prohibiting any further collection activity until the claims in this case are resolved, an order "remanding" the various individual defendants "to other authority for preference of charges under authority of 26 U.S.C. § 7214(a)," and an award of damages. Id at 4. However, for the reasons that follow, plaintiffs claims are without support and should be dismissed in their entirety.
II. Dismissal of Claims Against Individual Defendants
Defendants first assert that the claims against the individual defendants should be dismissed under FRCP 12(b)(5) for failure to serve them. The record does not reveal that any individual defendant has been served. Thus, the claims against the individual defendants should be dismissed for lack of service. Moreover, to the extent service is or has been accomplished, the United States should be substituted as the defendant for all official-capacity claims. Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir 1985).
III. No Waiver of Sovereign Immunity — First Through Seventh Claims
The United States is immune from suit absent its express consent. United States v. Mitchell, 445 U.S. 535, 538 (1980); United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver of sovereign immunity "cannot be implied but must be unequivocally expressed" by Congress. United States v. King, 395 U.S. 1, 4 (1969), citing Sherwood, 312 US at 586. If the plaintiff fails to make this showing, the suit must be dismissed for a lack of jurisdiction. Holloman v. Watt, 708 F.2d 1399, 1401-02 (9th Cir 1983), cert denied, 466 U.S. 958 (1984).
Several of the statutes cited by plaintiff contain no explicit waiver of the United States' sovereign immunity. See, 26 U.S.C. § 6302, 6331(j), 6335(e)(1), 6501(c), 6502(a), 7214(a), 7412(a), 7602(d); 44 U.S.C. § 1504-07. Similarly, the administrative provisions cited by plaintiff provide no waiver of sovereign immunity, and plaintiff has failed to articulate any basis to find such a waiver. See, 1 C.F.R. § 1.1; 5 C.F.R. § 1320.6; 26 C.F.R. § 301.6203-1.
Plaintiff also cites "26 C.F.R. § 7805(a) Part 1 Income Tax Regulations applicable to individuals," which he alleges defendants' violated "by applying regulations that do not apply to Part 1 . . . to enforce code sections administered by the Bureau of Alchohol Tobacco, and Firearms." Complaint, p. 3. The gist of the Sixth Claim, which contains these allegations, seems to be that defendants failed to publish any regulations in the Federal Register which allow for the assessment and collection of tax deficiencies or penalties against individuals. Plaintiff provides no basis for waiver of sovereign immunity for this type of claim and the provisions on which he relies either do not exist (26 C.F.R. § 7805) or contain no explicit textual support for such waiver (44 U.S.C. § 1504-07). Thus, the Sixth Claim should be dismissed for want of jurisdiction.
These statutes and regulations are the grounds on which plaintiffs First through Seventh Claims rest. Because these provisions do not explicitly waive the sovereign immunity of the United States, and plaintiff has provided no other authority for finding such waiver, each of these claims should be dismissed with prejudice for lack of jurisdiction.
IV. Failure to Exhaust Administrative Remedies — Eighth Claim
Plaintiffs remaining claim seeks damages pursuant to 28 U.S.C. § 7433(a). That provision permits a taxpayer to bring suit in federal district court for damages against the United States when "any officer or employee of the Internal Revenue Service recklessly or intentionally disregards any provision" of the Tax Code or any regulation promulgated thereunder. However, the taxpayer must first exhaust any available administrative remedies. 26 U.S.C. § 7433(d)(1).
Plaintiff alleges that he "exhausted all requisite and administrative remedies by making demand upon the Secretary of the Treasury for refund of all deposits unlawfully held." Complaint, p. 3, ¶ 10. That allegation is insufficient to meet the detailed requirements for exhaustion specified in detail in 26 C.F.R. § 301.7433-1. At a minimum, an allegation of full payment of the assessed taxes is a jurisdictional prerequisite to a refund suit. Boynton v. United States, 566 F.2d 50, 53-54 n5 (1977), citing Flora v. United States, 362 U.S. 145, 151-67 (1960). Plaintiff has made no such allegation. To the contrary, he alleges that defendants "still claim that I owe the United States Treasury about $41,892.00." Complaint, p. 5. Thus, plaintiffs Eighth Claim also should be dismissed for want of subject matter jurisdiction.
V. Remaining Statutory Authority
In a one sentence introduction to his pleadings, plaintiff also states that his claims are made "under authority of 26 U.S.C. § 7426. Complaint, p. 1. However, none of plaintiff's eight claims is explicitly premised upon that statute. Moreover, even if they were, "section 7426 expressly excludes from those authorized to bring a wrongful levy action the taxpayer against whom the IRS is seeking to collect the taxes." Allied/Royal Parking L.P. v. United States, 166 F.3d 1000, 1004 (9th Cir 1999), citing Shannon v. United States, 521 F.2d 56, 59 (9th Cir 1975). Thus, to the degree the Complaint can be construed to assert any claim pursuant to 26 U.S.C. § 7426, it is without merit and also should be dismissed.
Finally, to the degree that plaintiff seeks injunctive relief, his claims are barred by the Anti-Injunction Act, which bars all suits "for the purpose of retraining the assessment or collection of any tax." 26 U.S.C. § 7421(a). "`The purposes of the [Anti-Injunction Act] are to allow the Federal Government to assess and collect allegedly due taxes without judicial interference and to compel taxpayers to raise their objections to collected taxes in suits for refunds.'" Warren v. C.I.R., 302 F.3d 1012, 1015-16 (9th Cir 2002), quoting In Re Leckie Smokeless Coal Co., 99 F.3d 573, 584 (4th CD-1996). Plaintiff does not allege that he comes within the statutory exceptions to the bar of the Anti-Injunction Act, nor has he articulated any basis for application of the narrow judicial exception. Enochs v. Williams Packing Nav. Co., 370 U.S. 1, 6-8 (1962) (requiring the taxpayer to demonstrate that the government cannot prevail under any circumstance and that the taxpayer will be irreparably harmed if the injunction is not granted); Maxfield v. United States Postal Service, 752 F.2d 433, 434 (9th Cir 1984). As a result, plaintiffs request for injunctive relief also must be dismissed for lack of subject matter jurisdiction. Alexander v. ""Americans United"", Inc., 416 U.S. 752, 757-58 (1974); Ellas v. Connett, 908 F.2d 521, 523 (9th Cir 1990).
RECOMMENDATION
For the reasons stated above, the United States' Motion to Dismiss (docket #3) should be GRANTED and this action should be DISMISSED WITH PREJUDICE.
SCHEDULING ORDER
Objections to the Findings and Recommendation, if any, are due October 27, 2003. If no objections are filed, then the Findings and Recommendation will be referred to a district court judge and go under advisement on that date.
If objections are filed, the response is due no later than November 3, 2003. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will be referred to a district court judge and go under advisement.