United States v. First National City Bank, and Milton F. Meissner, Proposed Intervenor-Appellant

568 F.2d 853, 25 Fed. R. Serv. 2d 302, 39 A.F.T.R.2d (RIA) 789, 1977 U.S. App. LEXIS 10176

• Court: Court of Appeals for the First Circuit
• Decided: February 4, 1977
• Docket: 114, 115, Dockets 75-6007, 75-6008
• Status: Published

Opinions

TIMBERS, Circuit Judge:

This appeal presents questions important to the administration of the internal revenue laws. They arise from the use of summary judicial proceedings to enforce IRS levies upon the contents of a taxpayer’s safe deposit box following a determination by the IRS that the collection of back taxes from the taxpayer is in jeopardy. The central issue is whether the taxpayer’s constitutional rights require that as a pre -seizure remedy he be granted leave to intervene in the summary enforcement proceedings or whether the taxpayer’s post -seizure remedies are adequate to protect his rights. We affirm the district court’s denial of the taxpayer’s motion for leave to intervene and its direction that the bank allow the IRS to enter the box and obtain possession of the contents.

I. PRIOR PROCEEDINGS

Milton F. Meissner and First National City Bank (Citibank) appeal from orders entered in the Southern District of New York, Lloyd F. MacMahon, District Judge, 388 F.Supp. 1044, (1) denying Meissner’s motion for leave to intervene in pre-seizure summary proceedings to enforce levies on the contents of his safe deposit box; and (2) directing (a) that Citibank allow the IRS to enter the box for the purpose of obtaining possession of the non-exempt contents, and (b) that Citibank retain possession of the contents not removed by the IRS, subject to further order of the court.¹

On April 9, 1974, the IRS made a jeopardy assessment against Meissner pursuant to § 6851(a).² It did so because it believed Meissner³ owed substantial back taxes for the years 1970 and 1971, the collection of which was in jeopardy.⁴ The IRS immediately served upon Meissner a notice of assessment and a demand for payment pursuant to § 6861(a). It also served a notice of deficiency pursuant to § 6861(b); this entitied Meissner to litígate his liability before the Tax Court, which he has done.

On April 10, the IRS issued jeopardy levies pursuant to § 6331(a) upon the contents of two safe deposit boxes leased by Meissner, one from Citibank and the other from Chemical Bank New York Trust Co. (Chemical).⁵ The two banks refused the IRS access to the boxes. On October 4, the United States Attorney commenced the instant proceedings against the banks for summary enforcement of the IRS levies pursuant to § 7402(a). On October 15, Meissner, who was not a party to the summary enforcement proceedings, moved for leave to intervene in those proceedings.

The district court denied Meissner’s motion for leave to intervene and directed the banks to allow the IRS access to Meissner’s safe deposit boxes. See note 1, supra. The court also granted the motions of Meissner and Citibank for stays pending appeal conditioned on Meissner’s posting a $260,000 bond, the approximate amount of his back taxes.

Instead of posting the bond ordered by the district court, Meissner moved in our Court for a stay pending appeal without bond. Citibank also moved in our Court for a stay pending appeal. We denied both motions on April 15,1975. On April 17, Mr. Justice Marshall likewise denied appellants’ applications for stays.

Chemical thereafter turned over to the IRS the contents of its safe deposit box which Meissner leased; and the government filed with the court an inventory, dated April 22, of the contents of the Chemical box. Citibank, on the other hand, while allowing the IRS access to the contents of its safe deposit box leased by Meissner, refused to permit the IRS to remove the contents. On April 22, after a hearing, the district court ordered that the Citibank box be placed under the joint control of the government and the bank. The court also ruled that the government, in order to remove the contents of the box, would be required to serve a formal subpoena. The government did serve upon Citibank an administrative subpoena demanding that the bank turn over to the IRS the contents of the box. No further action has been taken to enforce that subpoena pending the outcome of the instant proceedings.

The present appeals are from the district court’s orders denying Meissner’s motion for leave to intervene and directing Citibank to turn over to the IRS the contents of its safe deposit box leased by Meissner.

The essential questions presented are (1) whether summary proceedings to enforce IRS levies are authorized by § 7402(a); (2) whether Meissner is barred by § 7421(a) (the Anti-Injunction Act) from raising his claims in the pre-seizure summary proceedings; and (3) whether Meissner is entitled to intervene in the pre-seizure summary proceedings to protect his constitutional rights.

II. SUMMARY ENFORCEMENT PROCEEDINGS PURSUANT TO SECTION 7402(a)

Appellants claim that the district court lacked jurisdiction to enforce the IRS levies by summary proceedings. They argue that § 7402(a),⁶ relied on by the district court, authorizes only “writs and orders” ancillary to plenary civil actions. We disagree.

The language of this statute is broad and clear. In addition to authorizing writs and orders ancillary to civil actions, it gives the district courts jurisdiction to issue “such other orders and processes, and to render such judgments and decrees as may be necessary or appropriate for the enforcement of the internal revenue laws.” We decline to construe such a broad statutory mandate so restrictively as to add nothing to the power conferred by the All Writs Act, 28 U.S.C. § 1651 (1970).⁷ We hold, as the Third Circuit did in United States v. Mellon Bank, N.A., 521 F.2d 708, 710-11 (3 Cir. 1975) (related case),⁸ that § 7402(a) authorized the summary enforcement proceedings in the district court.

III. ANTI-INJUNCTION ACT-SECTION 7421(a)

Before turning to Meissner’s constitutional claims, we must determine whether he is barred by the Anti-Injunction Act⁹ from raising those claims in the instant proceedings. We hold that he is not.

Section 7421(a) has no application to counterclaims or defenses interposed by a taxpayer in an action brought by the government. By its terms, this statute applies only to a “suit for the purpose of restraining the assessment or collection of any tax,” meaning of course a suit by a taxpayer. It would seem fundamental that when Congress confers jurisdiction upon the district courts to entertain a government action to collect taxes, it may not bar a taxpayer from asserting in such action counterclaims or defenses which affect his rights with respect to the taxes sought to be collected.

In Commissioner v. Shapiro, 424 U.S. 614 (1976), which was a post -seizure injunction action by the taxpayer, the Court held that the Anti-Injunction Act did not bar such an action and that the taxpayer would be entitled to injunctive relief if (1) he could show a likelihood of irreparable injury, and (2) the government could not establish a factual basis for its assessment.¹⁰ 424 U.S. at . While the Court’s holding was based on its interpretation of the statute, it strongly suggested that a narrower construction of the jurisdiction of the courts under the statute would involve “serious constitutional problems.” Id. at 629.

In view of our holding below, under Section IV of this opinion, that Meissner is not entitled to a pre -seizure hearing, it is not necessary for us to decide what effect Shapiro (which was a post -seizure action) would have on the instant proceedings.

It is sufficient in the instant case to hold, as the Third Circuit did in United States v. Mellon Bank, N.A., supra, that the Anti-Injunction Act does not bar Meissner from raising his constitutional claims in the instant proceedings. See note 8, supra.

IV. CONSTITUTIONAL CLAIMS

Turning directly to the constitutional claims which Meissner sought to raise by his motion for leave to intervene in the summary enforcement proceedings, and viewing the record in the light most favorable to Meissner, it appears that the following are the claims he sought to raise: (1) due process claim under the Fifth Amendment; (2) search and seizure claim under the Fourth Amendment; and (3) self-incrimination claim under the Fifth Amendment.¹¹

(1) Due Process Claim

In order to focus on the precise due process claim raised, it is important to bear in mind what is not involved. The issue here is not whether the taxpayer has a right to a hearing after his property has been seized. Rather, the issue is whether he is entitled to litigate his claims before the government has obtained possession of the contents of his safe deposit box. Meissner has not commenced an action of his own. Instead, he has sought by intervening to oppose every step of the government’s pre-seizure enforcement proceedings.

In Commissioner v. Shapiro — a post-seizure injunction action — the Court stated that due process required “some kind of predeprivation or prompt post-deprivation hearing.” 424 U.S. at 629 (emphasis added). The Court again noted:

“We have often noted that, in resolving a claimed violation of procedural due process, a careful weighing of the respective interests is required, Goss v. Lopez, 419 U.S. 565, 579 (1975); and we have noted that the Government’s interest in collecting the revenues is an important one, Fuentes v. Shevin, 407 U.S. 67, 92 (1972). This interest is clearly sufficient to justify seizure of a taxpayer's assets without a pre-seizure hearing, Fuentes v. Shevin, supra, and to remove any need to subject the Commissioner to the burden of an inquiry into the basis for his assessment absent factual allegations of irreparable injury by the taxpayer. Phillips v. Commissioner, 283 U.S. 589, 595, 596-97 (1931) Id. at n. 12 (emphasis added).

Under Shapiro the taxpayer is entitled to an initial hearing on his claims before a subsequent determination in the Tax Court or in a suit for a refund, “at least where irreparable injury may result from a deprivation of property pending final adjudication of the rights of the parties. . . . ” 424 U.S. at 629 & n. 12.¹² Meissner’s remedy for alleged deprivation of his property rights is in a post-seizure hearing of the sort described in Shapiro.

We hold that the due process clause does not entitle Meissner under the circumstances of this case to intervene in the pre-seizure enforcement proceedings and thus to impede the government’s efforts to obtain possession of the contents of the safe deposit box pursuant to its jeopardy assessment.

(2) Search and Seizure Claim

Meissner’s principal claim appears to have been that the search of his safe deposit box violated his Fourth Amendment rights. Granted that the search did come within the scope of the Fourth Amendment, we do not believe that Meissner’s intervention in the summary proceedings was required to protect his Fourth Amendment rights. We hold that there was sufficient probable cause for the district court to order that the bank allow the government to search the safe deposit box.¹³

No one would contend that a suspect has a right to intervene in opposition to an application by a police officer for a search warrant. The policies favoring expeditious tax enforcement procedures are as compelling as the need to effect a speedy search of a suspect’s premises. To allow a taxpayer to tie up the initial enforcement proceedings after he has been given notice of the jeopardy assessment most assuredly would subvert the statutory purpose of the jeopardy assessment provisions. By delaying enforcement a taxpayer could secrete or dissipate what assets he had left. The government’s interests moreover cannot be protected adequately merely by sealing the safe deposit box. The government must be able to search the contents of the box to determine the value of what is there and to learn what other assets the taxpayer may have elsewhere. We refuse to sanction the impeding of these investigatory functions and the concomitant frustration of the jeopardy assessment procedure which would result from intervention by the taxpayer in the pre-seizure enforcement proceedings.

The “warrant preference rule” requires no more than that a detached magistrate determine whether there is sufficient probable cause for the search. Mancusi v. DeForte, 392 U.S. 364, 370-72 (1968); Camara v. Municipal Court, 387 U.S. 523 (1967); Johnson v. United States, 333 U.S. 10 (1948). That is precisely what was done here. The government’s representations in support of its petition for enforcement, coupled with Meissner’s own admissions in his motion papers, provided sufficient probable cause for the court to authorize the search of Meissner’s safe deposit box. Although Meissner challenged the amount of the deficiencies assessed, he admitted that he had not properly computed his taxes. He did not deny that he owed substantial back taxes. Moreover his refusal to obey a grand jury subpoena, his absence from the United States in view of pending criminal and civil investigations involving him, and the IRS’ inability to discover other assets owned by Meissner in the United States provided sufficient reason to believe that the collection of deficiencies against Meissner might be in jeopardy.

Beyond the protection afforded Meissner by the presentation of the government’s petition to the district court in the summary enforcement proceedings, he is not foreclosed from objecting in subsequent civil or criminal proceedings to the use of evidence improperly obtained. This protection is no less than that required in the context of searches for other purposes.

Finally, Meissner relies on Reisman v. Caplin, 375 U.S. 440 (1964), in support of his contention that he was entitled to intervene in the summary enforcement proceedings to assert his Fourth Amendment claim. In Donaldson v. United States, 400 U.S. 517, 529 (1971), the Court pointed out that the language in Reisman with respect to a taxpayer’s intervention “is permissive only and is not mandatory.” The Court in Donaldson also indicated that intervention would be appropriate only in very limited circumstances, such as where a party’s rights are inadequately protected otherwise and where they outweigh the government’s interests in an expedited determination. Id. at 529-30 & n. 12. That is not the situation here.

(3) Self-Incrimination Claim

Meissner also suggests that his Fifth Amendment privilege against self-incrimination somehow was violated by the government’s search of his safe deposit box.

We reject this claim as wholly without merit. It is well settled that “[compulsion upon the person asserting it is an important element of the privilege [against self-incrimination] . . . .” Couch v. United States, 409 U.S. 322, 328 (1973). Here there was no such compulsion on Meissner who did not have possession of the contents of the safe deposit box.

We affirm the district court’s denial of Meissner’s motion for leave to intervene and its direction that Citibank allow the IRS to enter the box for the purpose of obtaining possession of the contents.¹⁴

Affirmed.

1 . The original order denying Meissner’s original motion for leave to intervene is dated December 31, 1974; and a further order upon Meissner’s motion for reargument, adhering to the original order, is dated May 20, 1975. The order directing Citibank to allow the IRS to enter the box is dated January 27, 1975. All orders implemented the court’s opinion dated December 31, 1974.

2 . Unless otherwise stated, all citations to statutory provisions in this opinion are to sections of Title 26 of the United States Code, 1970 codification; here, for example, to 26 U.S.C. § 6851(a) (1970).

3 . Meissner is no stranger to this Court or to the District Court for the Southern District of New York. See I.I.T. v. Vesco, Dkt. Nos. 74-1969, 2366, 2341 (2 Cir. April 28, 1975); S.E.C. v. Stewart, 476 F.2d 755 (2 Cir. 1973). He has been a close associate of Robert L. Vesco in the affairs of Investors Overseas, Ltd. (I.O.S.), of which he eventually became president. At the time of the instant proceedings in the district court and up to the present time, Meissner was and has been a fugitive, living in the Bahamas or in Costa Rica. On April 1, 1974 — eight days before the jeopardy assessment against Meissner here involved — a warrant for his arrest was issued by Judge Tenney of the Southern District of New York because of Meissner’s failure to comply with a grand jury subpoena which had been served on him and his failure to comply with Judge Pollack’s order of March 5, 1974 specifically ordering him to appear before the grand jury.

4 . For the distinction between the collection methods available to the IRS, including jeopardy assessments, and the usual procedures where there has been no jeopardy determination, see Laing v. United States, 423 U.S. 161, 169-71 (1976), and Commissioner v. Shapiro, 424 U.S. 614, 616-17 (1976).

5 . Chemical, having complied with the order of the district court by turning over to the IRS the contents of its safe deposit box leased by Meissner, is not a party to the instant appeal.

6 . 26 U.S.C. § 7402(a) provides:

Ҥ 7402. Jurisdiction of district courts.

(a) To issue orders, processes, and judgments.

The district courts of the United States at the instance of the United States shall have such jurisdiction to make and issue in civil actions, writs and orders of injunction, and of ne exeat república, orders appointing receivers, and such other orders and processes, and to render such judgments and decrees as may be necessary or appropriate for the enforcement of the internal revenue laws. The remedies hereby provided are in addition to and not exclusive of any and all other remedies of the United States in such courts or otherwise to enforce such laws.”

7 . In New Hampshire Fire Insurance Co. v. Scanlon, 362 U.S. 404 (1960), the Supreme Court, in holding that summary proceedings instituted by a private party to quash an IRS levy on property held by a stakeholder are not authorized by 28 U.S.C. § 2463, carefully qualified its holding as follows:

“In the absence of express statutory authorization, courts have been extremely reluctant to allow proceedings more summary than the full court trial at common law.” 362 U.S. at 407 (footnotes omitted) (emphasis added).

We hold that § 7402(a) provides precisely that “express statutory authorization” here.

8 . In Mellon the district court allowed Meissner to intervene in the pre-seizure summary proceedings against another bank, but then granted the government’s petition for enforcement. The district court held that Meissner was precluded from litigating his counterclaims by the Anti-Injunction Act, 26 U.S.C. § 7421(a) (1970).

The Third Circuit reversed the district court’s holding with respect to the Anti-Injunction Act. While holding that the Act did not preclude litigation of Meissner’s counterclaims in the pre-seizure proceedings, see our holding under Section III of this opinion, infra, the court did not reach the merits of Meissner’s claims. 521 F.2d at 711 n. 12. The court noted that there were “considerable problems with all of the claims Meissner proposed to raise on intervention . . . .” Id. at 711 n. 11. The court held that Meissner was not an indispensable party entitled to intervention as of right under Fed.R.Civ.P. 24(a), but that the district court had not abused its discretion under Rule 24(b) in permitting him to intervene. Id. at 711 n. 11.

9 . The Anti-Injunction Act, 26 U.S.C. § 7421(a), provides:

Ҥ 7421. Prohibition of suits to restrain assessment or collection.

(a) Tax.

Except as provided in sections 6212(a) and (c), 6213(a) and 7426(a) and (b)(1), no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”'

10 . The Supreme Court in Shapiro reaffirmed its earlier interpretation of § 7421(a) in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962), where it held:

“The manifest purpose of § 7421(a) is to permit the United States to assess and collect taxes alleged to be due without judicial intervention, and to require that the legal right to the disputed sums be determined in a suit for refund. In this manner the United States is assured of prompt collection of its lawful revenue. Nevertheless, if it is clear that under no circumstances could the government ultimately prevail, the central purpose of the Act is inapplicable and . . . the attempted collection may be enjoined if equity jurisdiction otherwise exists.”

The Court in Shapiro reaffirmed its holding in Enochs that the government is required to come forward with facts to establish that its assessment has a basis in fact. 424 U.S. at 627-32.

11 . The record before us is less than clear as to precisely what constitutional claims Meissner sought to raise. In a brief in support of his original motion for leave to intervene, his counsel asserted that enforcement of the government levy would violate Meissner’s constitutional privileges under the Fourth and Fifth Amendments; that the IRS assessment was inaccurate and that the levy had not been carried out according to § 6331(a); that the government’s rights were fully protected without opening the safe deposit box; and that the taxpayer required discovery to determine whether the government had complied with all statutory and regulatory requirements in making the jeopardy assessment. Some seven months later, in a letter dated May 13, 1975 which Judge MacMahon treated as a motion for reargument, note 1, supra, Meissner’s counsel interposed an even broader claim that Meissner was entitled to intervene “in order to resolve serious questions involving constitutional and property rights. . . Meiss-’ ner’s brief on appeal again asserts vaguely defined claims involving his property interests and the propriety under the Constitution and provisions of the Internal Revenue Code of the summary judicial proceedings to enforce the IRS levies.

Citibank’s position is that it holds no property or rights to property of Meissner; that Meissner as the lessee of the safe deposit box is an indispensable party to the summary' proceedings; and that summary proceedings, absent a plenary action, are not authorized.

12 . In Laing v. United States, 423 U.S. 161, 183 & n. 26 (1976), the Court noted that it did not have before it the question whether due process requires a post-seizure determination prior to a hearing in the Tax Court. The majority expressed no doubt about the propriety of denying the taxpayer a pre-seizure hearing. Justice Brennan, in his concurring opinion, expressed concern about the possibility of erroneous determinations by the Commissioner and emphasized the need for prompt review; but he acknowledged that “[n]o hearing is required, judicial or administrative, prior to the seizure.” 423 U.S. at 186.

13 . We do not find dispositive those cases cited by the government for the proposition that a taxpayer has no Fourth Amendment right to prevent the government from obtaining records kept by a bank or by an accountant. Unlike the situation here, in each of the cited cases the customer had little if any interest in, or expectation of privacy with respect to, the records kept by a bank or turned over to an accountant. California Bankers Association v. Shultz, 416 U.S. 21, 52-53 (1974); Couch v. United States, 409 U.S. 322, 335-36 (1973); Donaldson v. United States, 400 U.S. 517, 530-31 (1971); id. at 537 (Douglas, J., concurring).

14 . In view of our rulings above on what we consider to be the essential questions presented, we find it unnecessary to discuss other claims asserted by the government, e. g., that the orders from which the instant appeals have been taken are not final; that the appeals are moot; and that Meissner as a fugitive should not be permitted to press his appeal. Suffice it to state that we summarily reject these claims. In short, we have carefully considered all claims raised by all parties to the instant appeals. With the exception of those specifically discussed and ruled upon in the body of this opinion, we find all other claims to be without sufficient merit to warrant discussion.