opinion: MATCOVICH v. NICKELL, Collector of Internal Revenue.
  No. 10191.
  Circuit Court of Appeals, Ninth Circuit.
  March 30, 1943.
  R. H. Schwab, of Sacramento, Cal., for appellant.
  Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, J. Louis Monarch, and Mills Kitchin, Sp. Assts. to the Atty. Gen., and Frank J. Hennessy, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for appellee.
  Before WILBUR, GARRECHT, and HEALY, Circuit Judges.
  PER CURIAM.
  The appellant filed suit in the district court to enjoin collection by the appellee of assessments levied under the Federal Unemployment Tax Act, 53 Stat., Part 1, p. 183, § 1600, I.R.C., 26 U.S.C.A.Int.Rev. Code, § 1600, and the Federal Insurance Contributions Act, 53 Stat., Part 1, p. 175, § 1400, I.R.C., 26 U.S.C.A.Int.Rev.Code, § 1400, upon the ground that persons occupied about premises conducted by appellant, whose status fixed liability under the above statutes, were not employees of appellant, and that, therefore, the taxes were not applicable. The appellee moved to dismiss upon the ground that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” Section 3653, I.R.C., 26 U.S.C.A. Int.Rev.Code, § 3653, 53 Stat., Part 1, p. 446. The motion to dismiss was granted, and judgment entered accordingly, from which the appeal is taken.
  Matcovich based his bill for injunctive relief upon two grounds:
  (1) Inapplicability of the tax. He alleged that the persons by whose presence and occupation the tax attached were not employees, but licensees, and that he was not their employer and, hence, not liable for the tax.
  (2) Irreparable injury. He alleged that he was unable to pay the tax without serious and irreparable injury to his business, which injury could not be remedied by recovery had thereafter as a result of suit for refund.
  Section 3653 of the Internal Revenue Code prohibits suits to restrain the assessment or collection “of any tax” “in any court.” Despite the positive prohibition of Section 3653, I.R.C., it has been held that there may be a case stated wherein injunctive relief properly may be granted to restrain the assessment or collection of a tax. See, for instance, Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509, 510, 52 S.Ct. 260, 76 L.Ed. 422; Graham v. DuPont, 262 U.S. 234, 43 S.Ct. 567, 67 L.Ed. 965; Allen v. Regents, 304 U.S. 439, 445, 58 S.Ct. 980, 82 L.Ed. 1448. But such a case must, obviously, be the unusual, the extraordinary case. Mere illegality of the exaction is not sufficient to justify a holding that the statute is not applicable (Allen v. Shelton, 5 Cir., 96 F.2d 102), nor is hardship to the taxpayer. Kaus v. Huston, 8 Cir., 120 F.2d 183, 185. We think Section 3653, I.R.C. applies except in a case wherein it is shown, in addition to the fundamental allegations necessary to obtain injunctive relief, that under no possibility could the attempted exaction be held legal (cf. Miller v. Standard Nut Margarine Co., supra), or in the unusual and extraordinary circumstances such as confronted the court in Graham v. DuPont, 262 U.S. 234, 43 S.Ct. 567, 67 L.Ed. 965, and in Allen v. Regents, 304 U.S. 439, 445, 58 S.Ct. 980, 82 L.Ed. 1448. Appellant has stated no such case. Moreover, this court has just decided that the employer-employee relationship did exist between Matcovich and the persons occupied about the premises conducted by him, which renders his claim altogether untenable. See Matcovich v. Anglim, Collector, 9 Cir., 134 F.2d 834, decided March 30, 1943.
  Judgment affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Your task is to identify the state of the first listed state or local government agency that is an appellant.
choices: not Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachussets Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New New New New North North Ohio Oklahoma Oregon Pennsylvania Rhode South South Tennessee Texas Utah Vermont Virginia Washington West Wisconsin Wyoming Virgin Puerto District Guam not Panama