Alan Zinstein v. US

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-00633-JCC-IDD Copies to all parties and the district court/agency. [999446792].. [13-2456]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2456

ALAN ZINSTEIN; JANE SILK,
Plaintiffs - Appellants,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:13-cv-00633-JCC-IDD)

Submitted:

September 29, 2014

Decided:

October 1, 2014

Before WILKINSON, KING, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Andrew Paul Kawel, KAWEL PLLC, Miami, Florida, for Appellants.
Kathryn Keneally, Assistant Attorney General, Jonathan S. Cohen,
Kenneth W. Rosenberg, Tax Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Alan Zinstein and Jane Silk (“Taxpayers”) appeal from
the district court’s orders dismissing their complaint in which
they alleged that the Internal Revenue Service failed to timely
release a tax lien and wrongfully levied on their property, and
denying their motion for reconsideration.

The district court

determined

to

that

the

Taxpayers

failed

exhaust

their

administrative remedies and also filed their complaint beyond
the two-year statute of limitations.
The

limitations

period

We affirm.

for

actions

under

26

U.S.C.

§§ 7432, 7433 (2012) is two years from the date the “taxpayer
has

had

a

reasonable

opportunity

to

discover

elements of a possible cause of action.”
1(i)(2); 301.7433-1(g)(2) (2010).
because

it

represents

a

waiver

all

essential

26 C.F.R. §§ 301.7432-

This statute of limitations,
by

the

United

States

of

its

sovereign immunity, is a prerequisite to the district court’s
jurisdiction.
F.3d

631,

637

See Gandy Nursery, Inc. v. United States, 318
(5th

Cir.

2003)

(upholding

district

court’s

dismissal of untimely 26 U.S.C. § 7433 claim for lack of subject
matter jurisdiction).

Here, the causes of action in Taxpayers’

complaint

April

Service

accrued
first

in

levied

upon

2008,
the

when

the

Taxpayers’

Internal

Revenue

property.

See

Keohane v. United States, 669 F.3d 325, 329 (D.C. Cir. 2012)
(holding

that

continuing

violation
2

did

not

apply

to

§

7433

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action, but rather cause of action accrued when taxpayer knew of
levy); Snyder v. United States, 260 F. App’x 488, 493 (3d Cir.
2008); Macklin v. United States, 300 F.3d 814, 824 (7th Cir.
2002)

(rejecting

continuing

violation

theory

in

circumstance

where there is a “single alleged wrong, the filing of a tax
lien”).

The complaint, filed in May 2013, was filed beyond the

two-year limitations period, and therefore the district court
properly dismissed it for lack of jurisdiction.
Accordingly,
dismissing

the

action

reconsideration.
facts

and

materials

legal
before

we

affirm

for

lack

the
of

district

court’s

jurisdiction

and

orders
denying

We dispense with oral argument because the
contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

3