Quiller Barnes v. Internal Revenue Service Commissioner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUILLER BARNES,
Plaintiff-Appellant,
v.
INTERNAL REVENUE SERVICE
COMMISSIONER,
Defendant-Appellee.
No. 20-15733
D.C. No. 2:19-cv-00558-KJM-CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Quiller Barnes appeals pro se from the district court’s judgment dismissing
his action alleging claims arising out of his erroneous 1996 tax return. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for lack of
subject matter jurisdiction. Imperial Plan, Inc. v. United States, 95 F.3d 25, 26
* 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).
FILED
JUN 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-15733
(9th Cir. 1996). We affirm.
The district court properly dismissed Barnes’s action because Barnes failed
to file timely administrative refund claims with the Internal Revenue Service. See
26 U.S.C. § 6511(a) (requiring refund claim to be filed within three years from the
time the return was filed or two years from the time the tax was paid, whichever is
later); 26 U.S.C. § 7422(a) (court cannot hear refund suit without filing of
administrative refund claim with IRS); Imperial Plan, Inc., 95 F.3d at 26-27
(affirming dismissal for lack of subject matter jurisdiction where taxpayer failed to
file a timely administrative tax refund claim under § 6511).
The district court did not abuse its discretion by dismissing Barnes’s action
without leave to amend because amendment would be futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
standard of review and explaining that dismissal without leave to amend is proper
when amendment would be futile).
We reject as meritless Barnes’s contentions that his suit is not a refund suit
and that there is jurisdiction under the Employee Retirement Income Security Act.
AFFIRMED.

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