UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ LNV CORPORATION, Plaintiff,

v. M. JULIA HOOK, Defendant - Appellant, and UNITED STATES OF AMERICA, Defendant - Appellee, and
PRUDENTIAL HOME MORTAGAGE COMPANY, INC.; SAINT LUKES LOFTS HOMEOWNER ASSOCIATION, INC.; DEBRA JOHNSON, in her official capacity as the Public Trustee of the City and County of Denver, Colorado; DAVID L. SMITH, Defendants. No. 14-1438 (D.C. No. 1:14-CV -00955-RM-CBS) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

* After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel. It (continued) FILED United States Court of Appeals Tenth Circuit 

### August 19, 2015
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before HOLMES , MATHESON , and BACHARACH , Circuit Judges.

________________ _________________ M. Julia Hook, an attorney appearing pro se, appeals from th e district court’s order denying her emergency motion for a temporary restraining order and/or a preliminary injunction, and her accompanying request for an evidentiary hearing. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1 ), we affirm. BACKGROUND LNV Corporation brought an action agai nst Ms. Hook in state court seeking to foreclose a deed of trust on one piece of re al property she owned. In addition to Ms. Hook, LNV named as defendants a number of other parties, including the Internal Revenue Service, which potentially held interests in the property, and requested the court to determ ine the priorities of those in terests. The United States (on the IRS’s behalf) removed the action to fe deral district court and asserted a claim asking the district court to consider its tax liens against the property when determining the priority of all liens, and to distribute any proceed s of the foreclosure sale in accordance with those relative priorities. Ms. Hook filed crossclaims (denominated as counterclaims) against the United States and incorporated by re ference an amended complaint with attachments that she

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.3 and her husband, David L. Smith, 1 had previously filed in Hook v. United States , No. 13-cv-01156-RM-KLM (D. Co lo. filed May 1, 2013), an action we shall refer to as the “Hook/Smith Action.” 2 She sought to quiet title to four pieces of real property (including the subject property of LNV’s complaint) that she and/or Mr. Smith (although he was not yet a pa rty to the action) owned and upon which the IRS had placed liens. She also asked for other relief, including a credit or refund of $993,532 (plus any future increases due to allege dly improper levies on her and Mr. Smith’s social security benefits payments) for pa yment or overpayment of federal income taxes, penalties, and interest for tax y ears 1992-1996 and 2001-2 008; abatement of penalties for those tax years; ac tual damages; the release of all federal tax liens; the return of all levied or sei zed property; the release of continuing levies on her and Mr. Smith’s social secu rity payments; and a declaration that the orders, opinions and judgments of the United States Tax Court, the United States Bankruptcy Court for the District of Colorado, and the United States Court of Federal Claims were null and void ab initio because of numerous violations of Hook’s and Smith’s constitutional and statutory rights to due process of law. Aplt. App. at 21.

1 Like his wife, Mr. Smith is an attorn ey, but he is currently disbarred from practice by the Colorado Supreme Court and from practicing before the United States District Court for the Distri ct of Colorado. This c ourt also disbarred him from practice before this court, but we have since reinstated him. See In re Smith , 500 F. App’x 786, 787 (10th Cir. 2012) (se tting out Mr. Smith’s disbarment history).

2 The district court dismissed the Ho ok/Smith Action, and in a case filed contemporaneously with this one, we have affirmed that dismissal. See Hook v. United States , No. 15-1022 (10th Cir. Aug. 19, 2015).4 On July 30, 2014, Ms. Hook filed an emergency motion for a temporary restraining order and/or a preliminary inj unction (Motion) accompanied by a request for an evidentiary hearing. As with her complaint, she incor porated by reference a number of documents from the Hook/Smith Action. Sh e contended that since 2007, the IRS had been taking all of Mr. Smith’s social security payments, and that on July 3, 2014, the IRS began taking 56.4% of her own social security payments, all in violation of the 15% rule set forth in 26 U.S.C. § 6331(h )(1). She asked the court to enjoin those levies, pointing out that the combined effect of all the IRS’s levies (on real and personal property in addition to the benefits payments) had redu ced her and Mr. Smith to “abject poverty,” Aplt. App. at 182. She also asserted that she and her husband, at ages 68 and 70, respectively, had no income source other than their benefits payments, and the levies left them with only $645 a month to live on. Ms . Hook further requested most of the other relief she asked for in her crossc laim against the United States. The district court denied the Motion. The court reasoned that Ms. Hook failed to establish two of the four factors nece ssary to obtain preliminary injunctive relief— that she was likely to succeed on the merits of her claims and that she was likely to sustain irreparable harm if the motion was not granted. See Hobby Lobby Stores, Inc. v. Sebelius , 723 F.3d 1114, 1128 (10t h Cir. 2013) (en banc) (s etting forth factors for preliminary injunctive relief). 3 In the alternative, the court concluded that Ms. Hook

3 The other two factors are whether “the harm alleged by the movant outweighs any harm to the non-moving party” and whether “an injunction is in the public interest.” Hobby Lobby Stores, Inc. , 723 F.3d at 1128.5 failed to show that her cl aims were not barred by the Anti-Injunction Act (AIA), 26 U.S.C. § 7421(a). DISCUSSION A. District court jurisdiction over the United States’ claim We first must address Ms. Hook’s challe nge to the district court’s jurisdiction over the United States’ claim. She did not pres ent this challenge to the district court, but we must consider whether jurisdiction wa s lacking even when the issue is raised for the first time on appeal. See Daigle v. Shell Oil Co. , 972 F.2d 1527, 1539 (10th Cir. 1992). The government res ponds that jurisdiction was proper under 26 U.S.C. §§ 7402 and 7403. In reply, Ms . Hook does not challenge the broad grant of jurisdiction under § 7402, 4 but she argues that the gove rnment failed to comply with certain requirements of § 7403, namely, (1) to allege that the Attorney General or his delegate, at the request of the Secretary of the Treas ury, had directed the filing of the claim, as set forth in § 7403(a); (2) to join Mr. Sm ith, as require d by § 7403(b),

4 Section 7402(a) provides: The district courts of the United States at the instance of the United States shall have such jurisdiction to make and issue in civil actions, writs and orders of injunction, and of ne exeat republica , orders appointing receivers, and such other orders and processes, and to render such judgments and decrees as may be necessary or appr opriate for the enforcement of the internal revenue laws. The remedies hereby provided are in addition to and not exclusive of any and all other reme dies of the United States in such courts or otherwise to enforce such laws.6 because he is a co-owner; and (3) to allege that the government sought an “adjudication and decree” (the ti tle of § 7403(c)) rather than judicial foreclosure. We disagree that § 7403 is jurisdicti onal. Ms. Hook has provided no authority for her position, and § 7403 does not menti on jurisdiction or otherwise provide “any clear indication that Congress wanted the rule to be jurisdictional,” Henderson ex rel. Henderson v. Shinseki , 562 U.S. 428, 436 (2011) (inter nal quotation marks omitted). What scant authority we have uncovere d suggests that these provisions are procedural components of a cause of action rather than jurisdic tional requirements. See, e.g. , United States v. Offiler , 336 F. App’x 907, 908 (11th Cir. 2009) (per curiam) (characterizing § 7402(a) as “gran ting the district courts jurisdiction over civil actions brought pu rsuant to § 7403”); United States v. Rosenberg , No. 88-30-CIV-ATKINS, 1988 WL 142154 , at *1 (S.D. Fla. Aug. 4, 1988) (unpublished) (concluding that § 7403(b) is a “pro cedural device” and not jurisdictional); cf. United States v. Raymond , 228 F.3d 804, 809 (7th Cir. 2000) (concluding that analogous provision of § 7408, provi ding a cause of action for injunctive relief “at the request of th e Secretary,” is “procedural and not jurisdictional”), overruled on other grounds by Hill v. Tangherlini , 724 F.3d 965, 967 n.1 (7th Cir. 2013); Palmer v. United States Internal Revenue Service , 116 F.3d 1309, 1311 (9th Cir. 1997) (characterizi ng the provisions of § 7403 as “procedural requirements” but concluding that the dist rict court properly found the IRS complied with them and that the district “cour t had jurisdiction over the government’s claims”). Further, th e title of § 7403, “Action to enfo rce lien or to s ubject property to7 payment of tax,” supports th e notion that the statute con cerns a cause of action, not jurisdiction. For these reasons, we conclude that § 7403 is not ju risdictional, and any failure to comply with its provisions did no t deprive the district court of jurisdiction under § 7402(a). B. Merits of appeal “We review the denial of a preliminar y injunction for abus e of discretion.” Hobby Lobby Stores, Inc. , 723 F.3d at 1128. A district court abuses its discretion when it commits an error of law or reli es on clearly erroneous factual findings. Wyandotte Nation v. Sebelius , 443 F.3d 1247, 1252 (10th Cir. 2006). Because Ms. Hook is an attorney proceeding pro se, we do not afford her filings the liberal construction ordinarily give n to pro se pleadings. See Smith v. Plati , 258 F.3d 1167, 1174 (10th Cir. 2001). With one exception, discussed below, we affirm the district court’s denial of the Motion because Ms. Hook fail ed to show that her claims were not barred by the AIA. The AIA provides that, subject to specific statutor y exceptions, “no suit for the purpose of restraining the asse ssment or collection of any tax shall be maintained in any court by any person, whether or not su ch person is the person against whom such tax was assessed.” 26 U.S.C. § 7421(a). The AIA’s prohibition is jurisdictional. See Enochs v. Williams Packing & Nav. Co. , 370 U.S. 1, 5 (1962) (explaining that the purpose of the AIA “is to w ithdraw jurisdiction from the state and federal courts to entertain suits seeking inj unctions prohibiting the collect ion of federal taxes”).8 Ms. Hook first contends that her crossc laim against the Un ited States does not fall within the AIA’s ambit because she alleged that the IRS had already collected all the taxes she and Mr. Smith owed for the tax years at issue. She therefore posits that she does not seek to prohibit any assessment or collection of taxes but instead wants a refund. This argument is based on an accounting she gave in her amended complaint in the Hook /Smith Action. In that acti on, the government disputed the accounting, pointing out that Ms. Hook and Mr . Smith failed to consider substantial statutory interest that remained unpaid and that a large portion of the payment Ms. Hook allegedly had made was in the form of two pieces of real property the IRS seized and sold for substan tially less than the apprai sed value after Ms. Hook had defaulted on her payment plan in her Chapte r 11 bankruptcy case. Ms. Hook insisted (and insists here) that the a ppraised value should be used in determining how much the sale of those properties reduced her ta x liability even though a district court had affirmed a bankruptcy court ruling that onl y the actual proceed s the IRS retained from the sales would go towa rd Ms. Hook’s liabilities. We disagree. We affirm ed the district court’s rejection of Ms. Hook’s accounting in our disposition of her appeal in the Hook/Smith Action, determining that she had not adequately disputed the accuracy of the government’s accounting for tax years 1992-1996 and 2001-2 005, which showed substan tial interest and penalties she had omitted from her own accounting. See Hook v. United States , No. 15-1022,9 slip op. at 11 (10th Cir. Aug. 19, 2015). 5 And in the bankrupt cy proceeding, the district court affirmed a bankruptcy cour t ruling that Ms. Hook was entitled to an offset or credit only in the amount of the actual net proceeds from the IRS’s sale of the real property it sold after her defaul t on her Chapter 11 plan, not the greater appraised value. See Hook v. IRS (In re Hook) , 469 B.R. 62, 66-67 (D. Colo. 2011). Although Ms. Hook does not appear to take issue with her tax liabilities for tax years 2006-2008, her apparent contention is that th ey have already been paid due to prior, alleged overpayments. But that contention is based on the errors in her accounting. Accordingly, we reject her argument that the AIA does not apply to her crossclaim. We also reject her argumen t that the collection of a ny penalties (or the interest on those penalties) she sought to enjoin are not taxes for AIA purpos es. In support, she relies on National Federation of Indepe ndent Business v. Sebelius , 132 S. Ct. 2566 (2012) ( NFIB ), claiming it stands for the br oad proposition that “a penalty is not a tax for [AIA] purposes.” Aplt. Openi ng Br. at 19. But in relevant part, the
NFIB Court concluded only that the AIA did not bar review of the Affordable Care

5 Her liabilities for those years has b een judicially dete rmined, to wit: Ms. Hook and Mr. Smith filed a petition fo r a redetermination of their joint and several tax liabilities for tax years 1992-19 96. The Tax Court dismissed their case for failure to prosecute and entere d decisions for the government. See Smith v. Comm’r , 86 T.C.M. (CCH) 362 ( 2003). We affirmed. See Hook v. Comm’r , 103 F. App’x 661, 662 (10th Cir. 2004). Ms. Hook and Mr. Smith also filed a redetermination petition for tax years 2001-2005. Ms. Hook entered into a stipulation in open court regarding her de ficiencies, and the Tax Court determined Mr. Smith’s liabilities after a trial. See Smith v. Comm’r , 100 T.C.M. (CCH) 381 (2010). Ms. Hook appeal ed, and we affirmed. See Smith v. Comm’r , 458 F. App’x 714, 715 (10th Cir. 2012).10 Act’s “shared responsibility payment” because Congress had labeled that payment a penalty, not a tax. NFIB , 132 S. Ct. at 2582-84 (bracket s omitted). The Court went on to point out that in the Internal Revenue Code—and in contrast to the Affordable Care Act—Congress had elected to treat penalties as taxes, and that the AIA applied to those penalties: Congress can, of course, describe something as a penalty but direct that it nonetheless be treated as a ta x for purposes of the Anti–Injunction Act. For example, 26 U.S.C. § 6671(a) provides that “any reference in this title to ‘tax’ imposed by this title sha ll be deemed also to refer to the penalties and liabilities provided by” su bchapter 68B of the Internal Revenue Code. Penalties in subchapter 68B are thus treated as taxes under Title 26, which includes the Anti–Injunction Act. Id. at 2583. Hence, we conclude that NFIB does not support Ms. Hook’s argument, which we reject. In the alternative, Ms. Ho ok suggests that two of the statutory exceptions to the AIA apply, 26 U.S.C. §§ 6213(a) and 6330(e)(1). 6 But she did not raise these exceptions in the district c ourt despite the fact that th e government asserted, in its response to the Motion, that no statutory excep tion applied. Furthe rmore, the district court did not address any stat utory exceptions to the AIA. We therefore decline to consider these belatedly raised arguments, which involve mixed que stions of law and

6 Section 6213(a) permits courts to enjo in assessment or collection of tax deficiencies if (1) the taxpa yer has not received a notice of deficiency or (2) where the taxpayer has filed a petition with th e Tax Court to redetermine the alleged deficiency, until the Tax Court’s decision is final. Section 6330(e)(1) permits courts to enjoin levy proceedings durin g the pendency of a colle ction due-process hearing regarding the propriety of the subject levy; th e statute mandates that levies be suspended during this period.11 fact. See Daigle , 972 F.2d at 1539-40 (explaining th at we have discretion, but no duty, to consider “untimely raised legal theories” in support of jurisdiction, and recognizing that we are most likely to depart from that rule “when we are presented with a strictly legal question the proper re solution of which is beyond doubt or when manifest injustice would otherwise result”). Ms. Hook also takes issue w ith the district court’s c onclusion that she had not shown that either of two judicial excepti ons to the AIA applies. Under the first exception, the AIA is inappli cable “where . . . Congress ha s not provided the plaintiff with an alternative legal way to challenge the validity of a tax.” South Carolina v. Regan , 465 U.S. 367, 373 (1984). Ms. Hook ha s not shown she lack s an alternative remedy to the injunctive relief she sought in her Motion. Indeed, she already challenged her liabilities for tax years 1992 -1996 and 2001-2005, and as stated, it appears her only contention regarding tax y ears 2006-2008 is that she is due a refund because of prior overpayments. The second judicial exception to the AI A provides that the AIA does not apply “if it is clear that under no circumstances could the Gove rnment ultimately prevail” and “if equity jurisdiction otherwise exists.” Williams Packing & Nav. Co. , 370 U.S. at 7. Ms. Hook has not es tablished that there are no circumstances under which the government could prevail. To the contrary, her history of unsuccessful challenges to her tax liabilities, coupled with our contempor aneous affirmance of the dismissal of the Hook/Smith Action on which her claims in this suit largely depended, see note 2,12 supra , inform our conclusion that she canno t make the requisite showing under Williams Packing

. The one exception to our AIA analysis previously alluded to concerns Ms. Hook’s request for a preliminary inj unction against the government’s 56.4% levy on her social security paymen ts because it exceeds a 15% limit set forth in 26 U.S.C. § 6331(h). The district court ruled that the underlying crossc laim involved whether the levy on Mr. Smith’s social security paym ents violated the 15% rule, that he was not a party to the action at the time Ms. H ook filed her Motion, and that he had since become a party but had not yet entered an appearance. The court therefore reasoned Ms. Hook could not establish th at the court should grant relief to Mr. Smith and that she could not show a likelihood of success on a claim not raised (her request for injunctive relief concerning the size of the government’s levy on her own benefits payments). Ms. Hook has not presented an y cogent argument that this analysis was in error, and we agree with th e district court’s conclusions. Finally, Ms. Hook advances the concluso ry argument that the district court erred in denying her an ev identiary hearing on her Motion, and she questions the district judge’s fairness a nd impartiality because he allegedly ignored documents attached to her motion. But Ms. Hook has not identified any specific evidence she would have introduced at a hearing, and we see no error in the district judge’s consideration of her motion or the documents attached to it and no evidence of bias or unfairness. We therefore disa gree with Ms. Hook on both points.13 CONCLUSION The district court’s order denying Ms. Hook’s motion for a temporary restraining order and a preliminary injunc tion is affirmed. Ms . Hook’s motion to proceed on appeal without prepayment of co sts or fees is grante d, and we remind her of her obligation to continue making partia l payments until her en tire appellate filing fee has been paid in full.

Entered for the Court

Jerome A. Holmes Circuit Judge