IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-11383

Summary Calendar

SANDRA LENGYEL,

Plaintiff-Appellant,

versus

EVERMAN INDEPENDENT SCHOOL DISTRICT; DAN POWELL,

Defendants-Appellees.

Appeal from the United States District Court for the Northern of Texas No. 4-97-CV-1014-E

December 27, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

Sandra Lengyel appeals the dismissal of her civil rights

claims against her employer, Everman Independent School District,

and its Superintendent, Dan Powell. We AFFIRM.

Lengyel has been employed as a teacher in the Everman

Independent School district since 1984. On June 12, 1997, she sent

a letter to the school district claiming to terminate its authority

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. to withhold federal income tax payments from her paycheck.1 The

letter also stated that the school district was not to use her

social security number in reports to the Internal Revenue Service

and that she revoke her IRS Form W-4. Lengyel believes that she is

not required to pay federal income tax and that her social security

account number is associated with the "mark of the beast" described

in the Bible's book of Revelations. Her letter included a

"Statement of Citizenship" document stating that she was a citizen

of the United States and had no federal income tax liability in the

preceding or current tax year. On June 13, 1997, Superintendent

Dan Powell responded that the school district would not comply with

her demands. Lengyel replied June 19, 1997, reiterating her

demands. The IRS sent letters to the school district and Lengyel

that Lengyel's "Statement of Citizenship" was not a valid

substitute for a Form W-4 and that the district should withhold

federal tax payments from Lengyel's paycheck at the "single" rate

with no allowances until Lengyel submitted a Form W-4. Neither the

school district, Lengyel, nor the IRS changed positions over the

next two months, and when Lengyel received her first paycheck for

the 1997-1998 school year she discovered that the school district

had withheld federal income taxes. Lengyel filed criminal charges

against Superintendent Powell with the City of Everman Police

1 The School District does not withhold F.I.C.A. payments for social security because Lengyel is a member of the Teacher Retirement System of Texas.

2 Department in September 1997, claiming that the withholding

constituted theft.

Lengyel sued the School District and Powell for violation of

her civil rights under

and conspiracy to violate

her civil rights under

. She sought an injunction

barring the School District and Powell from withholding from her

wage earnings for the federal income tax and from using her social

security number in reports to the IRS. The parties filed cross

motions for summary judgment, and the court granted the defendants'

motion, dismissing Lengyel's claims.2

We review a grant of summary judgment de novo. See BMG Music

v. Martinez,

(5th Cir. 1996).

Lengyel claims that the School District's withholding from her

earnings for income tax deprived her of property without due

process of law. An employer paying wages to an employee must

withhold funds from the employee's wage earnings for the federal

income tax. See

(a)(1). An employer is not

required to withhold when the employee submits to the employer a

proper withholding exemption certificate "in such form and

containing such other information as the Secretary may prescribe"

2 The defendants counterclaimed for attorney's fees under Tex. Education Code § 11.161, and the court district court in its order granting their motion for summary judgment gave them until November 27, 1998, to file a proper motion for attorney's fees under

(b). The defendants' claim for attorney's fees is being considered by this court in No. 99-10261.

3 certifying that the employee incurred no liability for income tax

in the preceding tax year and anticipates none for the current

year.

(n). If no withholding exemption

certificate is in effect, the number of withholding exemptions

claimed "shall be considered to be zero."

(d).

The IRS informed the Lengyel and the School District that

Lengyel's "Statement of Citizenship" was not a valid withholding

exemption certificate. With no exemption certificate in effect,

the School District was required by law to withhold funds from

Lengyel's earnings with no exemptions. Lengyel did not present

evidence that created a genuine issue of material fact as to

whether she had submitted a proper withholding exemption

certificate.

Lengyel argues that the defendants violated her asserted

"right" under

(n) that defendants forward her

"Statement of Citizenship" to the IRS pursuant to

(c). Lengyel's reliance on the proof of citizenship

described in § 1.1441-5(a) and its disposition in § 1.1441-5(c) is

misplaced. This regulation relates to the means of proof that one

is a United States citizen rather than a nonresident alien subject

to withholding at a rate of 30% for the types of income specified

in

(b). The regulation is unrelated to the

withholding exemption certificate referred to in

(n). Lengyel had no right that her employer forward her

4 "Statement of Citizenship" to the IRS as a withholding exemption

certificate.

Lengyel argues that her employer's withholding income tax

deprived her of property without due process of law because she was

not liable for any tax. Summary administrative procedures by the

federal government to collect revenue do not offend rights to

procedural due process. See Phillips v. Commissioner,

(1931). A taxpayer who wishes to contest her tax

liability is provided by statute with two procedures for doing so:

pay the amount imposed and file suit in federal district court for

a refund, or pay nothing and petition the tax court to redetermine

the deficiency amount. See Flora v. United States,

(1960). These procedures provide an adequate opportunity to

be heard and to contest an income tax assessment by the IRS. See

Schiff v. United States,

(2d Cir. 1990).

Lengyel did not avail herself of the procedures available to her

under federal law. She did not present evidence to create an issue

for trial as to whether the defendants deprived her of any federal

right by fulfilling their legal obligation to withhold income tax

from her wage earnings. The district court properly dismissed this

claim.3

3 We agree with the district court that a claim for injunctive relief against the collection of a tax is barred by the Anti- Injunction Act,

(a).

5 Lengyel argued before the district court and in her original

brief to this court that she is not subject to withholding for

social security because she believes it is a voluntary program.

This argument is meritless.4 Lengyel concedes in her reply brief

that she is exempt from contributing to social security because she

participates in the Texas Teachers' Retirement System. The source

of the arguments Lengyel pressed before the district court and this

court about the compulsory nature of the social security system

appears to lie in the social security account number, which she

believes is associated with the "mark of the beast." Lengyel does

not want the School District to use her social security account

number in reports to the IRS.

Any employee subject to withholding for the federal income tax

must obtain a social security number, which is used as a tax

identification number. An employer must include the employee's tax

identification number on statements or other documents the employer

must make for tax purposes. See

(a). The

employee's social security number is the proper tax identification

4 Lengyel relies on Railroad Retirement Bd. v. Alton R.R. Co.,

(1935), which invalidated the Railroad Retirement Act of 1934 because the statute exceeded Congress' power to regulate interstate commerce. Soon after Alton, the Supreme Court upheld the unemployment and old age benefits provisions of the Social Security Act as a legitimate exercise of Congress' tax and spending powers. See Steward Machine Co. v. Davis,

(1937); Helvering v. Davis,

(1937). Payment of the taxes imposed under the Act is mandatory for those who are not exempt from payment. See United States v. Lee,

, 256- 59 (1982).

6 number. See

An employee who is subject to payment of income

tax must obtain a social security account number to be used as a

tax identification number. See

(b)-2(a)(1).

Lengyel objects to the numbering of persons, believing this to

be associated with the “mark of the beast.” She argues that her

employer violated her right to the free exercise of her religion by

identifying her in reports to the IRS by her social security

account number and by failing to accommodate her request to be

identified by some other means. Her arguments in this appeal are

directed toward her employer and not toward the IRS, which is not

a party to the dispute.

The district court properly found that the School District

could not be liable under § 1983 for observing the tax laws and

using Lengyel’s social security number in reports to the IRS. An

individual will not be exempted from obeying a neutral law of

general applicability on Free Exercise Clause grounds, even though

the law burdens the exercise of his religion. See Employment Div.,

Dep’t of Human Resources v. Smith,

(1990);

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

(1993). Lengyel presented no evidence showing that the

School District’s refusal to seek an exemption from the use of her

social security number was directed toward burdening her religious

practice or that using the social security number for IRS reporting

is not generally applied by the School District. The district

7 court properly granted the defendants’ motion for summary judgment

on Lengyel’s § 1983 claim, because the School District did not

violate any right of Lengyel’s by obeying the tax laws in its use

of her social security number.

A § 1985 plaintiff must show that two or more persons

conspired to deprive her of equal protection of the laws or the

privileges and immunities of United States citizenship. Lengyel

presented no evidence of any planned or completed violation of her

civil rights. The district court properly granted the defendants’

motion for summary judgment on Lengyel’s § 1985(3) claim.

Lengyel’s motion for leave to include record excerpts is

rendered MOOT by the disposition of this appeal.

AFFIRMED.

8