277 F2d 790 Owen v. United States

277 F.2d 790

60-1 USTC P 9431

John Charles OWEN, Appellant,
v.
UNITED STATES of America, Appellee.

No. 16694.

United States Court of Appeals Ninth Circuit.

April 5, 1960.

John Charles Owen, Colton, Cal., in pro. per.

Charles K. Rice, Asst. Atty. Gen., Lloyd J. Keno, Robert N. Anderson, Lee A. Jackson, Attys., Dept. of Justice, Washington, D.C., Laughlin E. Waters, U.S. Atty., Edward R. McHale, Lillian W. Stanley, Asst. U.S. Attys., Los Angeles, Cal., for appellee.

Before POPE and JERTBERG, Circuit Judges, and KILKENNY, District judge.

PER CURIAM.

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1

Appellant filed this action in the district court seeking a money judgment from the United States. His action was dismissed by summary judgment. He sought recovery for money alleged to have been improperly collected as income taxes. He asserts that the income which the Sixteenth Amendment permitted to be taxed was only that portion of appellant's receipts which remained after deduction of all his personal expenses. Therefore, he says, those portions of the Internal Revenue Code which disallow such deductions are unconstitutional and void.

2

When the suit was commenced it developed that appellant had not complied with Sections 7422 and 6532 of the 1954 Internal Revenue Code, 26 U.S.C.A. 7422, 6532, relating to filing and disallowance of claims for refund. Appellant seeks to avoid the consequences of his failure to satisfy those conditions precedent to suit for refund by asserting that this action is not one for refund under the statute, but rather is a civil action based on the common counts for money had and received. Appellant's admission that such is the sole basis of his complaint puts him out of court. The United States is not liable in any such action. The sovereign immunity to suit is waived only by express enactment and such waiver is always subject to the statutory conditions.

3

The judgment is affirmed.