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Cupp v. Secretary to Treasury of United States and Mr. C. D. Switzer

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


October 6, 1975

DR. EDWARD A. CUPP, APPELLANT
v.
THE SECRETARY TO THE TREASURY OF THE UNITED STATES AND MR. C. D. SWITZER, DISTRICT DIRECTOR OF INTERNAL REVENUE, APPELLEES.

Author: Van Graafeiland

Before Associate Justice CLARK (ret.),*fn* Circuit Judge VAN GRAAFIELAND, * District Judge CLARKE. *

Judgment Order

VAN GRAAFIELAND, Circuit Judge: Appellant seeks injunctive relief and a mandamus order to compel officials of the Internal Revenue Service to conduct a hearing regarding his 1972 Federal Tax Return. Appellant contends that his 1972 tax return presents issues of constitutional significance to the federal tax system. Appellant's contentions are without merit.

Appellant's suit is nominally against officials of the United States. There is not any averment that the officials acted ultra vires . Without said averment, a suit against government officials will be considered one against the United States. Larson v. Domestic and Foreign Commerce Corporation , 337 U.S. 682, 689 (1949). The relief sought by appellant will compel the United States to act. Clearly, this action is brought against the United States. Absent a waiver, a suit against the United States is barred by the doctrine of sovereign immunity. Larson v. Domestic & Foreign Commerce Corporation , 337 U.S. 682 (1949).

Appellant's reliance upon 28 U.S.C. § 1361 for the abolition of sovereign immunity is misplaced. McQueary v. Laird , 449 F.2d 608, 611 (10th Cir. 1971). Also, appellant's right to redress his grievances has not been denied because the District Court did not conduct a hearing on his complaint. Fed. R. Civ., P. 78, Skolnick v. Skolar , 317 F.2d 857 (7th Cir. 1963), cert. denied , 375 U.S. 904.

Assuming arguendo that the District Court had jurisdiction, appellant's request for injunctive relief would not succeed because said relief with respect to the assessment or collection of taxes is proscribed statutorily. Int. Rev. Code of 1954 § 7421. Alexander v. Americans United, Inc. , 416 U.S. 752.

The remainder of appellant's contentions are meritless.

Ordered and ADJUDGED that the Order of the District Court be, and hereby is, AFFIRMED.

Costs taxed against appellant.


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