229 F2d 148 Globe Construction Company v. G M Humphrey

229 F.2d 148

56-1 USTC P 9247

GLOBE CONSTRUCTION COMPANY, Inc., Neil Christopher and Hans

Schlesinger, individually and as Officers of said

Company, Appellants,


G. M. HUMPHREY, Secretary of Treasury of the United States, Appellee.

No. 15669.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1956.

Moise S. Steeg, Jr., Louis G. Shushan, New Orleans, La., for appellants.

M. Hepburn Many, Asst. U.S. Atty., New Orleans, La., George R. Blue, U.S. Atty., New Orleans, La., for appellee.

Before HUTCHESON, Chief Judge, and RIVES and CAMERON, Circuit Judges.


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This appeal brings up for review the order of the district judge requiring appellants to comply with a Bureau of Internal Revenue subpoena to produce books and records for the fiscal year 1950. The refusal to comply with the subpoena was based below, and the complaint of the order requiring compliance is based here, upon the ground that the taxes for that year were barred by the statute of limitations, and that, for want of sufficient 'allegations of fact to reasonably justify a suspicion of fraud', the proposed examination would be an unreasonable search and seizure in violation of the Fourth Amendment.


The appellee, pointing to the statute, Sec. 7602(2) of the Internal Revenue Code, 1954, 26 U.S.C.A. § 7602(2), authorizing the issuance of the subpoena, and cases dealing with the exercise of the power, particularly Falsone v. United States, 5 Cir., 205 F.2d 734, insists that the allegations in the affidavit of the officer who issued the subpoena were sufficient to support its issuance and that the order enforcing it should be affirmed.


We agree. Indeed we think: that the insistence of the appellant to the contrary proceeds from a misconception of the nature of the subpoena power at issue here and of the conditions requisite to its exercise.


The action of the district judge in ordering the subpoena enforced was right. His order is affirmed.