                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JUL 24 2018
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


DONALD J. TAYLOR, an individual )             No. 16-35775
and citizen of the State of     )
Washington,                     )             D.C. No. 4:16-cv-05023-SMJ
                                )
       Plaintiff-Appellant,     )             MEMORANDUM*
                                )
       v.                       )
                                )
COMMISSIONER OF INTERNAL )
REVENUE,                        )
                                )
       Defendant-Appellee.      )
                                )

                   Appeal from the United States District Court
                      for the Eastern District of Washington
                 Salvador Mendoza, Jr., District Judge, Presiding

                             Submitted July 10, 2018**
                               Seattle, Washington

Before: FERNANDEZ and NGUYEN, Circuit Judges, and RAKOFF,*** District
Judge.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Jed S. Rakoff, Senior United States District Judge for the
Southern District of New York, sitting by designation.
      Donald J. Taylor, a tax return preparer, appeals the district court’s dismissal

for lack of jurisdiction of his action against the Commissioner of Internal Revenue

for abatement of penalties assessed against him and for refund of amounts paid

toward those penalties. We affirm.

      Taylor prepared tax returns that were filed by various taxpayers, and after an

investigation, the United States Internal Revenue Service (“IRS”) assessed tax-

return-preparer penalties against him. See 26 U.S.C. § 6694(a), (b). In general,

district courts do not have subject matter jurisdiction over actions for refund of

amounts paid on a penalty assessment unless the assessment has been paid in full.

See Thomas v. United States, 755 F.2d 728, 729 (9th Cir. 1985); see also Flora v.

United States, 357 U.S. 63, 72–76, 78 S. Ct. 1079, 1085–86, 2 L. Ed. 2d 1165

(1958), aff’d on reh’g, 362 U.S. 145, 176–77, 80 S. Ct. 630, 647, 4 L. Ed. 2d 623

(1960). Taylor did not pay any of the penalties in full; on the contrary, he directed

that his payments be allocated to a payment of fifteen percent on each separate

penalty. See Buffalow v. United States, 109 F.3d 570, 574 (9th Cir. 1997).

Nevertheless, Taylor asserts that he came within the exception provided by 26

U.S.C. § 6694(c). We disagree.

      That exception does confer district court jurisdiction when a tax return



                                           2
preparer has paid at least fifteen percent of a penalty,1 if he commences his refund

action within thirty days after the earlier of: the IRS’ denial of his claim for refund,

or “the expiration of 6 months after the day on which he filed the claim for

refund.”2 Taylor did not file within those time limits. He suggests that § 6694(c)

does not require that he do so. However, we have already construed a different

section which, with trivial exceptions not relevant here, contains precisely the same

language.3 See 26 U.S.C. § 6703(c)(1), (2). In considering that section we held

that “once a plaintiff misses the six-month-plus-30-day deadline, the district court

lacks jurisdiction over the refund suit unless the taxpayer pays the entire penalty

first.” Korobkin v. United States, 988 F.2d 975, 976 (9th Cir. 1993) (per curiam);

see also Thomas, 755 F.2d at 729–30. The use of the same language in § 6694(c)

and § 6703(c) strongly suggests that we should apply the same interpretation to the

sections. See Northcross v. Bd. of Educ., 412 U.S. 427, 428, 93 S. Ct. 2201, 2202,



      1
          26 U.S.C. § 6694(c)(1).
      2
          Id. at (2).
      3
       That even includes the section headings to the extent that considering them
would be a proper aid to interpretation. See 26 U.S.C. § 7806(b); see also Fla.
Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47, 128 S. Ct. 2326,
2336, 171 L. Ed. 2d 203 (2008); Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co.,
331 U.S. 519, 528–29, 67 S. Ct. 1387, 1392, 91 L. Ed. 1646 (1947).


                                           3
37 L. Ed. 2d 48 (1973) (per curiam). In any event, we see no basis for holding that

the § 6694(c) language should be construed to mean something different from the

§ 6703(c) language.

      Moreover, the district court did not abuse its discretion4 when it declined to

hear Taylor’s newly minted argument that he could found jurisdiction on the

divisibility exception.5 That argument was first presented to the district court at

oral argument on the motion to dismiss, and contradicted the fifteen percent basis

argument upon which the complaint and briefing6 rested.

      AFFIRMED.




      4
       See Preminger v. Peake, 552 F.3d 757, 769 n.11 (9th Cir. 2008); 389
Orange St. Partners v. Arnold, 179 F.3d 656, 665–66 (9th Cir. 1999); see also
United States v. Hinkson, 585 F.3d 1247, 1261–63 (9th Cir. 2009) (en banc).
      5
          See Korobkin, 988 F.2d at 976–77.
      6
       See E.D. Wash. R. 7.1(b), (d); see also Zamani v. Carnes, 491 F.3d 990,
997 (9th Cir. 2007).

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