Paul W. Tillotson, Special Agent, Internal Revenue Service v. Jackson L. Boughner

327 F.2d 982, 13 A.F.T.R.2d (RIA) 813, 1964 U.S. App. LEXIS 6452

• Court: Court of Appeals for the Seventh Circuit
• Decided: February 7, 1964
• Docket: 14450
• Status: Published

Opinion

PER CURIAM.

The issue before us is the motion of appellee to dismiss the appeal herein on the ground the order appealed from is not a final appealable order under 28 U.S.C. § 1291.

Tillotson, Special Agent, sought to enforce a summons that was issued to Jackson L. Boughner. Compliance with the summons was pursuant to 26 U.S.C. § 7604(a). The District Court, by its order dated December 16, 1963, directed Boughner to comply with the summons. Boughner appealed from that order to-this Court.

Section 7604(a) gives the District. Court jurisdiction “by appropriate process to compel such attendance, testimony * * *» e£c_ Section 7604(b) is a section which gives the District Court power to conduct a hearing and punish for contempt.

We have heretofore held that orders, to comply with a summons issued by the-Internal Revenue Service pursuant to 26 U.S.C. § 7604(b) were not final appeal-able orders. Jarecki v. Whetstone, 7 Cir., 192 F.2d 121; 1 Application of Davis, 7 Cir., 303 F.2d 601. However, it is apparent from the discussions in those opinions that we distinguished orders under § 7604(b) from those under § 7604(a). This distinction was also-pointed out by the Ninth Circuit in a. discussion of our Jarecki and Davis de cisions. D. I. Operating Co. v. United states, 9 Cir., 321 F.2d 586, 588.

On January 20,1964, the United States Supreme Court decided Reisman v. Cap-lin, 375 U.S. 440, 84 S.Ct. 508,11 L.Ed.2d 459. The Court there held that orders under § 7604(b) are appealable. There can be no doubt but that orders under § 7604(a) are likewise appealable. We so hold. The motion to dismiss the appeal will be denied.

1 . 26 U.S.C. § 3615(e) of the 1939 Code was involved. This section is substantially the same as § 7604(b) of the 1954 Code.