WARREN RICHARD FOLLUM, Petitioner-Appellant, v. UNITED STATES OF AMERICA, (DEPARTMENT OF JUSTICE √ TAX DIVISION), Respondent-Appellee. , , United States Court of Appeals for the Second Circuit, No. 99-4049, October 15, 1999

═════ Plaintiff-appellant Warren Richard Follum, proceeding pro se , appeals from an order of the United States District Court for the Western District of New York (Arcara, J. ), dismissing his quiet title suit against the United States for lack of jurisdiction. ═ We affirm.

═════ Follum brought this action against the United States under 28 U.S.C. ╖ 2410 (1994), seeking to quiet title to two vehicles and his wages, the subject of federal tax liens, and claiming that the underlying federal tax assessments were invalid for various reasons.

═════ The United States is immune from suit except where it has expressly waived that immunity and consented to be sued. ═ See Federal Deposit Ins. Corp. v. Meyer , 510 U.S. 471, 475 (1994). ═ Section 2410 creates a limited exception to the United States' sovereign immunity by allowing the United States to be named as a party in suits, inter alia , "to quiet title to . . . real or personal property on which the United States has or claims a mortgage or other lien," 28 U.S.C. ╖ 2410(a), and it is within this exception that Follum seeks to fit his claim. ═

═════ Section 2410 has universally been construed not to extend to a suit brought by a taxpayer for the sole purpose of challenging the validity or amount of an underlying tax assessment. ═ See, e.g. , Johnson v. United States , 990 F.2d 41, 42 (2d Cir. 1993). ═ This Circuit has held, however, that a suit may properly be brought under ╖ 2410 when a party "challenge[s] procedural irregularities in the assessment process." ═ Id. ═ Thus, in Johnson , we allowed the plaintiff to maintain an action to quiet title, in which he claimed that a tax lien on his property was invalid because the IRS improperly assessed a tax deficiency before the Tax Court's decision became final. ═ See id. ═ The court commented, "Johnson's claim is procedural because he disputes the timing of the assessment, not its amount." ═ Id. at 43.

═════ Follum argues that, as in Johnson , his claim is procedural and therefore comes within the waiver of sovereign immunity in ╖ 2410. ══ But because Follum seeks to invalidate the underlying tax assessments completely, and permanently to free himself of liability for the taxes owed, rather than to dispute issues like the mere timing of the assessment, his claim must be characterized as substantive. ═ Accordingly, as the district court found, Follum cannot evade the requirement that he "pay first and litigate later," Falik v. United States , 343 F.2d 38, 42 (2d Cir. 1965) (Friendly, J. ) (internal quotation marks omitted), by invoking ╖ 2410.

═════ Moreover, to the extent that Follum seeks an injunction against the United States preventing it from assessing or collecting taxes, his suit is barred by 26 U.S.C. ╖ 7421(a) (1994), which provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person." ═ Id. ═ A narrow judicial exception to ╖ 7421 allows such a suit when (1) the disputed assessment is unquestionably incorrect, (2) the plaintiff will suffer irreparable injury if forced to pay, and (3) the plaintiff is without an adequate remedy at law. ═ See Enochs v. Williams Packing & Navigation Co. , 370 U.S. 1, 5-7 (1962). ═ Follum meets none of the requirements for this exception. ═ In particular, he has not shown that a suit for a refund, after payment of the assessed taxes, would be an inadequate remedy.

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═════ We have considered all of Follum's claims and find them to be without merit. ═ The district court's judgment is, therefore, AFFIRMED.

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For the Court,

KAREN GREVE MILTON,

Acting Clerk

by: ____________________

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