Marcon, Inc. v. United States

457 F. App'x 710

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 7, 2011
• Docket: 10-35464
• Status: Unpublished

Opinion

MEMORANDUM ***

Taxpayers MarCon, Inc. and Elaine Martin appeal the district court’s denial of their petition to quash an IRS summons issued to a third-party record keeper in December 2008. We review the denial of a petition to quash an IRS summons for clear error. Fortney v. United States, 59 F.3d 117, 119 (9th Cir.1995). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

The IRS met its burden under United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964), to make a prima facie showing that the December summons issued in good faith, and this showing was not refuted by Taxpayers. The December summons was not tainted by an earlier summons because (1) if the IRS already possessed the information requested in the earlier summons, then the earlier summons did not form the basis for the December summons, and (2) the earlier summons properly issued. The IRS wasn’t obligated to give notice, and it didn’t already possess the requested information. In addition, the December summons did not issue for the improper purpose of furthering a criminal investigation because (1) the matter had not yet been referred to the Department of Justice for prosecution, and (2) there is no evidence in the record that the IRS delayed such a referral in bad faith. See United States v. Stuart, 489 U.S. 353, 362-63, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989).

AFFIRMED.

*** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.