Cates v. United States

985 F. Supp. 736, 1997 WL 714919
CourtDistrict Court, N.D. Ohio
DecidedApril 29, 1997
DocketNo. 1:96CV0606
StatusPublished
Cited by1 cases

This text of 985 F. Supp. 736 (Cates v. United States) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cates v. United States, 985 F. Supp. 736, 1997 WL 714919 (N.D. Ohio 1997).

Opinion

MEMORANDUM OF OPINION AND ORDER DENYING PETITION TO QUASH SUMMONS AND GRANTING MOTION TO ENFORCE SUMMONSES

WELLS, District Judge.

This case is before the Court on the petition of Jan Cates to quash summonses issued by respondent United States to third party record keepers, and on the motion of the United States to enforce the summonses and to deny the petition to quash. For the reasons that follow, the Court finds it lacks subject jurisdiction over petitioner’s claims with respect to the summonses issued to third party record keepers outside the Northern District of Ohio. The Court further finds that the United States has established that the remaining summonses should be enforced, and petitioner has failed to show that the summonses are invalid or that enforcement of the summonses would be improper. Therefore, the Court will dismiss the petition and enforce the summonses with respect to third party record keepers within the Northern District of Ohio.

BACKGROUND

The petition in this case seeks to quash third party record keeper summonses issued by Special Agent James Dieringer of the Internal Revenue Service and directed to seven financial institutions, for information concerning petitioner Jan Cates, The Cates Company, and Chain by the Inch. The petition alleges the summonses are fatally defective because Dieringer failed to strictly comply with the prerequisites for issuance and approval of the summonses, and to properly disclose such approval. Petitioner also asserts she and the record keepers were not served with attested copies of the summonses, and the United States failed to comply with other requirements regarding service; time and place of examination; and description of the records to be produced. Petitioner contends the scope of the summonses was not properly restricted to financial transactions concerning the targets of the investigation and pertinent to enforcement of the tax laws. Finally, petitioner claims the information which permitted the United States to issue these summonses resulted from an unconstitutional search and seizure.

The United States has moved to dismiss the petition for lack of jurisdiction with respect to one bank located outside the Northern District of Ohio. The United States further asks the Court to enforce the summonses directed to four of the six banks within the Northern District of Ohio.

LAW AND ANALYSIS

1. Jurisdiction.

26 U.S.C. § 7609(b)(2) provides “any person who is entitled to notice of a summons [directed to a third party record keeper] shall have the right to begin a proceeding to quash such summons.” District courts are given jurisdiction over such proceedings under 26 U.S.C. § 7609(h)(1):

The United States district court for the district within which the person to be summoned resides or is found shall have jurisdiction to hear and determine any proceeding brought under subsection (b)(2), (f), or (g).• • ■

(Emphasis added.) Thus, this Court has subject matter jurisdiction over this petition only to the extent that the financial institutions which received the summonses reside or are found in this district.

Copies of the summonses attached to the petition demonstrate that Bank One Texas N.A. is located in Bedford, Texas. This financial institution is not in the Northern District of Ohio, and the petition is dismissed for lack of subject matter jurisdiction with respect to the summonses directed to this institution. See, e.g., Fortney v. United States, 59 F.3d 117 (9th Cir.1995).

2. Enforcement of Summonses.

The United States argues the petition to quash should be denied in its entirety, and the summonses should be enforced as to the four financial institutions which have not produced documents as required by the sum[738]*738monses.1 As noted above, petitioner brings this action under 26 U.S.C. § 7609. Section 7609(a) provides that if a summons is served on a third party record, keeper which requires production of records regarding the affairs of an identified person, then the person so identified must be given notice of the summons. That person has the right to begin proceedings to quash the summons within twenty days after the notice is given. 26 U.S.C. § 7609(b)(2)(A). “In any such proceeding, the Secretary may seek to compel compliance with the summons.” Id.

In order to enforce its summons, the United States is required to show that (1) the summons was issued for a legitimate purpose, (2) the summoned information is relevant to the purpose, (3) the information is not already in the government’s possession, and (4) the administrative steps required by the Internal Revenue Code for issuance and service of the summons have been followed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-55, 13 L.Ed.2d 112 (1964). This burden is generally met by submission of an affidavit of the agent who issued the summons. United States v. Will, 671 F.2d 963, 966 (6th Cir.1982). If this showing is made, the burden of proof shifts to the petitioner to show that the summons was issued for an improper purpose, for example to harass the petitioner or to pressure him or her to settle a collateral dispute. Id.; Powell, supra.

In this case, the declaration of Special Agent James Dieringer demonstrates the summonses issued in this case were issued for the proper purpose of determining the petitioners’ federal income tax liability for the years 1992 through 1994. See 26 U.S.C. § 7602(a). The materials sought are relevant to this purpose in the broad sense that the summoned information may throw light upon the tax liabilities under investigation. United States v. Arthur Young & Co., 465 U.S. 805, 814, 104 S.Ct. 1495, 1501, 79 L.Ed.2d 826 (1984). “[T]he Service can hardly be expected to know whether such data will in fact be relevant until it is procured and scrutinized.” Id. Furthermore, Agent Dieringer states that the records requested are not already in the possession of the IRS, and any overlap between records previously seized and those summoned is necessary to verify the correctness and completeness of the records. Finally, Agent Dieringer provided copies of the summonses and notices and describes how they were issued, indicating that all necessary procedural steps were followed.

3. Petition to Quash.

In her petition, petitioner first asserts Special Agent Dieringer did not strictly comply with the prerequisites for issuance and approval of the summonses.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Scotty's Contracting & Stone Co. v. United States
201 F. Supp. 2d 757 (W.D. Kentucky, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
985 F. Supp. 736, 1997 WL 714919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cates-v-united-states-ohnd-1997.