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

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.