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Bilski v. Brennan

April 30, 1979

PETER BILSKI, PLAINTIFF-APPELLANT,
v.
CHARLES BRENNAN, C. RUSTIA, INTERNAL REVENUE SERVICE, DEFENDANTS-APPELLEES.



Appeal from the United States District Court for the Southern District of New York.

Present: HONORABLE WILFRED FEINBERG, HONORABLE WALTER R. MANSFIELD, Circuit Judges, HONORABLE CHARLES S. HAIGHT, JR., District Judge.

This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York, and was argued by appellant pro se and by counsel for appellees.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the judgment of said District Court be and it hereby is AFFIRMED.

With regard to the equitable relief sought, we affirm the dismissal of plaintiff's complaint for the reasons stated in Judge Motley's memorandum endorsement dated December 13, 1978. With regard to the request for damages, we hold that the claim is barred by the doctrine of sovereign immunity since there has been no consent to this suit. United States v. Testan, 424 U.S. 392, 399 (1976). The Federal Tort Claims Act expressly excludes any claim "arising in respect to the assessment or collection of any tax" from the government's consent to suit, 28 U.S.C. § 2680(c), and the Tucker Act, 28 U.S.C. § 1346(a)(2), is inapplicable since plaintiff's claims exceed $10,000. See, e.g., Ove Gustavsson Contracting Company v. Floete, 278 F.2d 912, 914 (2d Cir.), cert. denied, 364 U.S. 894 (1960).

19790430

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