53 F3d 343 Sanders v. United States

53 F.3d 343

75 A.F.T.R.2d 95-2215

Linda H. SANDERS, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 94-1497.

D.C. No. 94-S-1460.

United States Court of Appeals, Tenth Circuit.

May 2, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

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1

Before SEYMOUR, Chief Judge, McKAY, and HENRY, Circuit Judges

ORDER AND JUDGMENT1

SEYMOUR

2

After examining the briefs and appellate record, this 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. 34.1.9. The case is therefore ordered submitted without oral argument.

3

Linda Sanders filed suit in federal district court seeking to quash an Internal Revenue Service (IRS) summons issued to a third-party recordkeeper. The court granted the government's motion for summary denial of Ms. Sanders' petition to quash and for enforcement of the summons. Ms. Sanders appeals the denial of her petition to quash.2 We affirm.

4

In the course of his investigation of Ms. Sanders' federal income tax liabilities for 1992 and 1993, IRS Agent George W. Rodgers issued an administrative summons to Ms. Sanders' bank, the Bank of Parker. The summons required the bank to provide specified records relating to Ms. Sanders' account. On the same day, Agent Rodgers notified Ms. Sanders of the summons. Ms. Sanders filed her petition to quash the summons.

5

To obtain enforcement of a summons, the government must meet the standards set forth in United States v. Powell, 379 U.S. 48, 57-58 (1964), by demonstrating that: (1) the investigation will be conducted for a legitimate purpose; (2) the inquiry is relevant to that purpose; (3) the material sought is not already within the government's possession; and (4) the administrative steps required by the Internal Revenue Code have been followed. Id.

6

The government's burden under Powell is slight, and an affidavit from the IRS agent who issued the summons is generally sufficient to meet that burden. United States v. Balanced Fin. Management, 769 F.2d 1440, 1443 (10th Cir.1985). Agent Rodgers' written declaration that the Powell criteria are met, rec., vol. I, doc. 8, was sufficient to establish a prima facie case for enforcement of the summons.

7

The burden then shifted to Ms. Sanders to prove that enforcement of the summons would constitute an abuse of the court's process. Balanced Fin. Management, 769 F.2d at 1444. " 'In responding to the Government's showing, it is clear that a taxpayer must factually oppose the Government's allegations by affidavit. Legal conclusions or mere memoranda of law will not suffice.' " Id. (quoting United States v. Garden State Nat'l Bank, 607 F.2d 61, 71 (3d Cir.1979)).

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8

Ms. Sanders initially alleges that the Rodgers declaration, which established the government's prima facie case, is invalid because the agent issued it using a pseudonym. However, the pseudonym is on file with the agent's supervisor in compliance with an IRS policy which allows agents to use pseudonyms in order to avoid harassment. Agent Rodgers signed the declaration under penalty of perjury. Because Ms. Sanders' allegations of falsity are based solely on the fact that a pseudonym was used, we hold that she has failed to establish a factual question as to the validity of the declaration.

9

Ms. Sanders next attempts to undermine the Powell test. She asserts that the summons was not issued for a legitimate purpose. First, she claims that a letter she received from the Treasury Department informing her that she "may not have to file a Federal tax return" for 1993 resolved the inquiry into her tax liability for 1992 and 1993. Rec., vol. I, doc. 3, Ex. B. We reject this notion as meritless. Second, she alleges that summonses are not available in income tax investigations. On the contrary, section 7602 of the Internal Revenue Code specifically authorizes the issuance of summonses when "determining the liability of any person for any internal revenue tax." 26 U.S.C. 7602(a) (emphasis added). Ms. Sanders has thus failed to establish that the IRS issued the summons for an illegitimate purpose.

10

Ms. Sanders also contends that the IRS failed to comply with the required administrative steps because she received notice of the summons on the day it was issued. Section 7609(a) requires notice of a summons to be given to the taxpayer "within 3 days of the day on which ... service is made." 26 U.S.C. 7609(a). The government complied with the Code's requirements.

11

Claiming that she owns the records which are the subject of the summons, Ms. Sanders attempts to invoke her Fifth Amendment right against self-incrimination and contends that a third-party summons is inappropriate. Because we conclude that the bank owns the records of accounts it maintains, we hold that Ms. Sanders' arguments do not rebut the government's prima facie case of enforceability.

12

Finally, Ms. Sanders contends that the summons allowed the IRS to invade the privacy of her ex-husband, Harvey F. Burge, without affording him notice. This is irrelevant to the present inquiry.

13

We are not persuaded by any of Ms. Sanders other contentions. We thus conclude that Ms. Sanders has failed to refute the government's prima facie Powell showing and we AFFIRM.

1

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

On September 30, 1994, the district court dismissed Ms. Sanders' petition to quash. The order ended with an incomplete sentence, however, which was completed in an Amended Order of Dismissal on October 5. Ms. Sanders filed her notice of appeal on October 11. Eight days later, the district court issued sua sponte a Second Amended Order of Dismissal, granting the government's petition to enforce the summons. Ms. Sanders did not file an amended notice of appeal to include the enforcement order. As a practical matter, however, the issues presented by the Order of Dismissal are the same as those presented by the enforcement order