Michael R. Presley v. United States

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 15, 2019
• Docket: 18-15091
• Status: Unpublished

Opinion

Case: 18-15091 Date Filed: 05/15/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15091 Non-Argument Calendar ________________________

D.C. Docket No. 9:18-cv-80649-RLR

MICHAEL R. PRESLEY, CYNTHIA PRESLEY, BMP FAMILY LIMITED PARTNERSHIP,

Petitioners-Appellants,

versus

UNITED STATES OF AMERICA,

Respondent-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 15, 2019)

Before WILLIAM PRYOR, JORDAN, and GRANT, Circuit Judges.

PER CURIAM: Case: 18-15091 Date Filed: 05/15/2019 Page: 2 of 4

This is the fourth in a series of related appeals stemming from the petitioners’

attempts to quash summonses sent to multiple banks by the Internal Revenue Service

as part of an examination into the petitioners’ federal income tax liabilities. We

affirm the dismissal of the petition to quash.

In Presley v. United States, 895 F.3d 1284, 1291–95 (11th Cir. 2018)

(“Presley I”), we rejected the arguments presented by the petitioners and held that

(a) the summonses did not violate the Fourth Amendment, and (b) the procedures

required by the Internal Revenue Code under 26 U.S.C. § 7609(f) did not apply. In

two subsequent appeals—BMP Family Ltd. P’ship v. United States, 741 F. App’x

764, 764 (11th Cir. 2018) (“Presley II”), and Presley & Presley, PA v. United States,

No. 18-11847, 2019 WL 449610 at *1 (11th Cir. Feb. 5, 2019) (“Presley III”)—we

concluded that Presley I foreclosed the petitioners’ arguments to quash the

summonses.

In this appeal, the petitioners articulate another version of an argument we

rejected in Presley I—that the IRS failed to comply with the Right to Financial

Privacy Act (“RFPA”), 12 U.S.C. §§ 3401–3423, in issuing its summonses, and that

the RFPA applies based on the Tenth Circuit’s opinion in Neece v. IRS, 922 F.2d

573, 578 (10th Cir. 1990).1

1 In an earlier joint status report, the petitioners conceded that our opinion in Presley I rejected most of their arguments but advised that “[t]o preserve their rights, . . . [they] must continue forward” while their petition for a writ of certiorari from the Supreme Court in Presley I is still 2 Case: 18-15091 Date Filed: 05/15/2019 Page: 3 of 4

Our opinion in Presley I forecloses this contention. In that opinion, we

expressly “rejected the [petitioners’] alternative argument that the [RFPA]

prohibited enforcement of the IRS summonses at issue.” Presley III, 2019 WL

449610 at *1 (citing Presley I, 895 F.3d at 1292). We reasoned that the RFPA

“explicitly provides that nothing in this chapter prohibits the disclosure of financial

records in accordance with procedures authorized by Title 26.” Presley I, 895 F.3d

at 1292 (quotation omitted and alteration adopted). Any attempt to challenge the

summonses “under the RFPA” fails as it “would conflict with [Presley I], which

determined that the ‘RFPA did not help’ the appellants in that case.” Presley III,

2019 WL 449610 at *1 (quoting Presley I, 895 F.3d at 1292) (alteration adopted).

Moreover, the petitioners’ contention that Presley I’s analysis of the RFPA is merely

dicta directly contradicts our application of Presley I in Presley III, 2019 WL 449610

at *1.

The petitioners’ reliance on Neece, 922 F.2d at 578, is similarly misplaced.

As we noted in Presley I, 895 F.3d at 1292–93, the Tenth Circuit’s opinion in Neece,

922 F.2d at 578, does not alter our analysis. Unlike the situation in Neece, the IRS

here met its notice requirements by giving the required notice to the petitioners, who

were the only persons “identified in the summons.” 26 U.S.C. § 7609(a). See also

pending. D.E. 12 at 2. Since this appeal was briefed, however, the Supreme Court denied certiorari. See Presley v. United States, No. 18-831, 2019 WL 1318587 (U.S. Mar. 25, 2019). 3 Case: 18-15091 Date Filed: 05/15/2019 Page: 4 of 4

Presley I, 895 F.3d at 1295 (quoting Tiffany Fine Arts, Inc. v. United States, 469

U.S. 310, 317 n.5 (1985)).

We therefore affirm the district court’s order of dismissal for the reasons

explained in Presley I.

AFFIRMED.