* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-50439

No. 96-50779

__________________

ELIZABETH GONZALES; EVANGELINA GONZALES; JERRY GONZALES;

JOSEPH GONZALES; DARLENE CORONA; ERNESTO GONZALES, SR.,

Individually and as Representative of the Estate of

Yolanda Gonzales, Deceased; and as Next Friend of

Ernestina Gonzales and Ernesto Gonzales, Jr., Minors,

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA,

Defendant-Appellee.

______________________________________________

Appeal from the United States District Court for the

Western District of Texas

(SA-95-CV-746, 96-CV-556)

______________________________________________

April 8, 1997

Before REAVLEY, JOLLY, and BENAVIDES, Circuit Judges.

PER CURIAM:*

This case involves whether sovereign immunity bars claims

against the United States government arising out of the allegedly

tortious acts of an Internal Revenue Service agent. We conclude

that the appellants’ claims “aris[e] in respect of the assessment
2

or collection of any tax or customs duty . . .” and are thus

excepted by 28 U.S.C. § 2680 from the Federal Tort Claims Act’s

limited waiver of sovereign immunity. Accordingly, we affirm the

judgments of the district court dismissing appellants’ complaints.

I.

The Gonzales family moved out of their home in San Antonio,

Texas, and into an apartment after the house had been the target of

seven drive-by shootings. The house was subject to Internal

Revenue Service (“IRS”) liens, which were placed on the house in

connection with approximately $14,500 in delinquent federal taxes

owed by the Gonzaleses. They allege that they moved back into the

house because of an IRS agent’s threats that unless they did so,

the IRS would seize the house. The IRS agent apparently insisted

that they move back into the house even after learning why they had

moved out. Several weeks after moving back into the house, Yolanda

Gonzales suffered a gunshot wound to the head while in the house.

She died the next day. Her husband and children seek to assert

tort claims against the United States for her death under the

Federal Tort Claims Act (“FTCA”). 

On April 26, 1996, the district court dismissed the

plaintiffs’ first amended complaint for lack of subject matter

jurisdiction on the grounds that (1) an exception to the FTCA’s

waiver of sovereign immunity, 28 U.S.C. § 2680(c), applies, and (2)

the appellants failed to exhaust their administrative remedies
 

1Because we conclude that the case was properly dismissed on

the basis of sovereign immunity, we need not address this ground

for dismissal of the first suit.

3

before asserting claims against the United States.1 On May 29,

1996, the plaintiffs brought a second suit against the United

States, asserting claims virtually identical to those in the

earlier suit. On the government’s motion, the district court took

judicial notice of the earlier suit and dismissed the plaintiffs’

complaint on the grounds of res judicata and lack of subject matter

jurisdiction. 

II.

If the United States has not waived its sovereign immunity,

the district court lacks subject matter jurisdiction to entertain

claims against it. See Truman v. United States, 26 F.3d 592, 594

(5th Cir. 1994). The FTCA effects a limited waiver of the United

States’ sovereign immunity. See 28 U.S.C. § 2674. The federal

district courts have jurisdiction over suits against the United

States “where the United States, if a private person, would be

liable to the claimant in accordance with the law of the place

where the act or omission occurred.” 28 U.S.C. § 1346(b).

Congress, however, provided certain exceptions to the FTCA’s waiver

of sovereign immunity. Section 2680(c) specifically excepts “any

claim arising in respect of the assessment or collection of any tax

. . . .” Id. § 2680(c). The district court relied on this

provision in dismissing the Gonzaleses’ claims for want of
 

2For example, the agent expressed concern that the IRS’s

collateral would deteriorate if left unoccupied.

 

3We have considered the appellants’ remaining arguments and

find them to be without merit as well.

4

jurisdiction. 

Appellants argue that the IRS agent’s actions in this case do

not fall within Section 2680(c)’s tax assessment and collection

exception. They rely on Capozzoli v. Tracey, in which we

recognized that, at least in theory, an agent’s tortious conduct

might be so tangential to his assessment and collection duties to

fall outside Section 2680(c), yet still be conduct for which the

United States would be vicariously liable. 663 F.2d 654, 658 (5th

Cir. 1981). Appellants’ claims do not fall within this limited

window. Section 2680(c) prevents claims against the United States

based on an agent’s actions that are “even remotely related to his

or her official duties.” Id. at 658 (emphasis added). The agent’s

actions in this case, however ill-fated, were related to his

efforts to collect back taxes owed by the Gonzaleses.2 No more is

required under Section 2680(c).3 See Capozzoli, 663 F.2d at 658.

We are not insensitive to the tragedy faced by the Gonzales

family. However, because the agent’s actions were related to tax

assessment and collection efforts, the United States retained

sovereign immunity as to those claims under 28 U.S.C. § 2680(c),

and the district court properly dismissed the appellants’

complaints. Accordingly, we AFFIRM the judgments of the district

court.