FILED NOT FOR PUBLICATION JUL 12 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-55447
Petitioner-Appellee, D.C. No. 2:19-cv-09204-DDP-JC v.
JEHAN AGRAMA, MEMORANDUM*
Respondent-Appellant.
Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding
Argued and Submitted April 19, 2023 Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,** District Judge.
Frank Agrama appeals from the district court’s order enforcing an Internal
Revenue Service (“IRS”) summons that requires Agrama to appear and produce for
examination certain records, including records related to his prosecution for tax
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Colleen McMahon, United States District Judge for the Southern District of New York, sitting by designation. crimes in Italy.1 Agrama argues that the summons was issued in bad faith and that,
at a minimum, the district court erred by ordering enforcement of the summons
without an evidentiary hearing.
We have jurisdiction under 28 U.S.C. § 1291. We review for clear error the
district court’s decision to enforce the summons. See United States v. Richey, 632
F.3d 559, 563 (9th Cir. 2011) (citing David H. Tedder & Assocs., Inc. v. United
States, 77 F.3d 1166, 1168 (9th Cir.1996)). We review the district court’s decision
not to hold an evidentiary hearing for abuse of discretion. See United States v.
Clarke, 573 U.S. 248, 255–56 (2014) (citations omitted). We affirm.2
The district court did not clearly err by enforcing the summons, nor did it
abuse its discretion by denying Agrama an evidentiary hearing. To enforce an IRS
summons, the Government must make a prima facie showing that the summons
was issued in good faith. See Crystal v. United States, 172 F.3d 1141, 1143–44
(9th Cir. 1999). The Government does so by showing that (1) the investigation
1 Respondent-Appellant Frank Agrama passed away on April 25, 2023, shortly after oral argument was heard on this appeal. Jehan Agrama, the daughter of Frank Agrama and the co-trustee of the Agrama Trust, which is the custodian of the summonsed records, has filed an unopposed motion to be substituted as respondent-appellant pursuant to Federal Rule of Appellate Procedure 43(a)(1). That motion is GRANTED. However, in this memorandum disposition we refer to the decedent, Frank Agrama, as the Respondent-Appellant. 2 The parties are familiar with the facts of this case, so we include them only as necessary to resolve the appeal.
2 will be conducted pursuant to a legitimate purpose; (2) the information sought may
be relevant to that purpose; (3) the information sought is not already within the
IRS’s possession; and (4) the administrative steps required by the Internal Revenue
Code have been followed. United States v. Powell, 379 U.S. 48, 57–58 (1964).
The Government’s burden “is a slight one, and may be satisfied by a declaration
from the investigating agent that the Powell requirements have been met.” Richey,
632 F.3d at 564 (quoting United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th
Cir. 1993)).
If the Government meets its burden, the taxpayer challenging the summons
then has the “heavy” burden of proving either lack of institutional good faith or an
abuse of process. United States v. LaSalle Nat’l Bank, 437 U.S. 298, 314–16
(1978). There is an abuse of process if the summons was “issued for an improper
purpose, such as to harass the taxpayer or to put pressure on him to settle a
collateral dispute, or for any other purpose reflecting on the good faith of the
particular investigation.” Powell, 379 U.S. at 58. A taxpayer challenging a
summons is entitled to an evidentiary hearing only when “he can point to specific
facts or circumstances plausibly raising an inference of bad faith.” Clarke, 573
U.S. at 254.
The district court did not err by concluding that the Revenue Agent’s
declaration was sufficient to meet the Government’s initial burden to show good
3 faith, as the Agent’s declaration indicates that each of the Powell factors are met.
Moreover, the district court did not clearly err in rejecting Agrama’s contention
that the IRS did not meet the third Powell factor. The third Powell factor serves to
prohibit the issuance of “unnecessary summonses that are designed to ‘harass the
taxpayer’ or that otherwise abuse the court’s process.” Action Recycling Inc. v.
United States, 721 F.3d 1142, 1146 (9th Cir. 2013) (citing Powell, 379 U.S. at 54–
59). But “[it] was not designed . . . to obstruct the ability of the IRS to obtain
relevant information necessary to a legitimate investigation.” Id. (citing United
States v. Euge, 444 U.S. 707, 711 (1980). Pursuant to that goal, we have long held
that the IRS may issue a summons to confirm the completeness and accuracy of
documents obtained from another source. See Liberty Fin. Servs. v. United States,
778 F.2d 1390, 1393 (9th Cir. 1985).
Although the IRS concedes that it already possesses some of the material
covered by the summons, the agency does not possess all of the summonsed
documents, and it knows that at least some documents in its possession are
incomplete. Agrama offers no evidence to prove — or even to raise a plausible
inference — that the IRS summons is motivated by anything other than a desire to
ensure that it has accurate and complete copies of anything it has obtained from
other sources. And since it was unnecessary to determine to what extent
documents in the IRS’s possession were duplicative of the documents sought, the
4 district court did not abuse its discretion by denying Agrama an evidentiary
hearing on this point.
Agrama also argues that he is barred from producing the so-called Mutual
Legal Assistance Treaty (“MLAT”) documents because Italy could not itself
produce those documents to the IRS without first obtaining permission from Hong
Kong, Switzerland, and Ireland, per the terms of the relevant MLATs. But he
offers no evidence that the laws of Italy or the terms of the MLATs would be
offended by his production of the MLAT documents that are in his possession in
connection with a U.S. investigation into his conduct as a U.S. citizen. As such, he
cannot challenge enforcement of the summons on the ground that principles of
international comity demand nonenforcement.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED NOT FOR PUBLICATION JUL 12 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-55447
Petitioner-Appellee, D.C. No. 2:19-cv-09204-DDP-JC v.
JEHAN AGRAMA, MEMORANDUM*
Respondent-Appellant.
Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding
Argued and Submitted April 19, 2023 Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,** District Judge.
Frank Agrama appeals from the district court’s order enforcing an Internal
Revenue Service (“IRS”) summons that requires Agrama to appear and produce for
examination certain records, including records related to his prosecution for tax
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Colleen McMahon, United States District Judge for the Southern District of New York, sitting by designation. crimes in Italy.1 Agrama argues that the summons was issued in bad faith and that,
at a minimum, the district court erred by ordering enforcement of the summons
without an evidentiary hearing.
We have jurisdiction under 28 U.S.C. § 1291. We review for clear error the
district court’s decision to enforce the summons. See United States v. Richey, 632
F.3d 559, 563 (9th Cir. 2011) (citing David H. Tedder & Assocs., Inc. v. United
States, 77 F.3d 1166, 1168 (9th Cir.1996)). We review the district court’s decision
not to hold an evidentiary hearing for abuse of discretion. See United States v.
Clarke, 573 U.S. 248, 255–56 (2014) (citations omitted). We affirm.2
The district court did not clearly err by enforcing the summons, nor did it
abuse its discretion by denying Agrama an evidentiary hearing. To enforce an IRS
summons, the Government must make a prima facie showing that the summons
was issued in good faith. See Crystal v. United States, 172 F.3d 1141, 1143–44
(9th Cir. 1999). The Government does so by showing that (1) the investigation
1 Respondent-Appellant Frank Agrama passed away on April 25, 2023, shortly after oral argument was heard on this appeal. Jehan Agrama, the daughter of Frank Agrama and the co-trustee of the Agrama Trust, which is the custodian of the summonsed records, has filed an unopposed motion to be substituted as respondent-appellant pursuant to Federal Rule of Appellate Procedure 43(a)(1). That motion is GRANTED. However, in this memorandum disposition we refer to the decedent, Frank Agrama, as the Respondent-Appellant. 2 The parties are familiar with the facts of this case, so we include them only as necessary to resolve the appeal.
2 will be conducted pursuant to a legitimate purpose; (2) the information sought may
be relevant to that purpose; (3) the information sought is not already within the
IRS’s possession; and (4) the administrative steps required by the Internal Revenue
Code have been followed. United States v. Powell, 379 U.S. 48, 57–58 (1964).
The Government’s burden “is a slight one, and may be satisfied by a declaration
from the investigating agent that the Powell requirements have been met.” Richey,
632 F.3d at 564 (quoting United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th
Cir. 1993)).
If the Government meets its burden, the taxpayer challenging the summons
then has the “heavy” burden of proving either lack of institutional good faith or an
abuse of process. United States v. LaSalle Nat’l Bank, 437 U.S. 298, 314–16
(1978). There is an abuse of process if the summons was “issued for an improper
purpose, such as to harass the taxpayer or to put pressure on him to settle a
collateral dispute, or for any other purpose reflecting on the good faith of the
particular investigation.” Powell, 379 U.S. at 58. A taxpayer challenging a
summons is entitled to an evidentiary hearing only when “he can point to specific
facts or circumstances plausibly raising an inference of bad faith.” Clarke, 573
U.S. at 254.
The district court did not err by concluding that the Revenue Agent’s
declaration was sufficient to meet the Government’s initial burden to show good
3 faith, as the Agent’s declaration indicates that each of the Powell factors are met.
Moreover, the district court did not clearly err in rejecting Agrama’s contention
that the IRS did not meet the third Powell factor. The third Powell factor serves to
prohibit the issuance of “unnecessary summonses that are designed to ‘harass the
taxpayer’ or that otherwise abuse the court’s process.” Action Recycling Inc. v.
United States, 721 F.3d 1142, 1146 (9th Cir. 2013) (citing Powell, 379 U.S. at 54–
59). But “[it] was not designed . . . to obstruct the ability of the IRS to obtain
relevant information necessary to a legitimate investigation.” Id. (citing United
States v. Euge, 444 U.S. 707, 711 (1980). Pursuant to that goal, we have long held
that the IRS may issue a summons to confirm the completeness and accuracy of
documents obtained from another source. See Liberty Fin. Servs. v. United States,
778 F.2d 1390, 1393 (9th Cir. 1985).
Although the IRS concedes that it already possesses some of the material
covered by the summons, the agency does not possess all of the summonsed
documents, and it knows that at least some documents in its possession are
incomplete. Agrama offers no evidence to prove — or even to raise a plausible
inference — that the IRS summons is motivated by anything other than a desire to
ensure that it has accurate and complete copies of anything it has obtained from
other sources. And since it was unnecessary to determine to what extent
documents in the IRS’s possession were duplicative of the documents sought, the
4 district court did not abuse its discretion by denying Agrama an evidentiary
hearing on this point.
Agrama also argues that he is barred from producing the so-called Mutual
Legal Assistance Treaty (“MLAT”) documents because Italy could not itself
produce those documents to the IRS without first obtaining permission from Hong
Kong, Switzerland, and Ireland, per the terms of the relevant MLATs. But he
offers no evidence that the laws of Italy or the terms of the MLATs would be
offended by his production of the MLAT documents that are in his possession in
connection with a U.S. investigation into his conduct as a U.S. citizen. As such, he
cannot challenge enforcement of the summons on the ground that principles of
international comity demand nonenforcement. See United States v. Vetco Inc., 691
F.2d 1281, 1289 (9th Cir. 1981) (“The party relying on foreign law has the burden
of showing that such law bars production.”).
Agrama next argues that it is an abuse of judicial process to seek court
enforcement of a summons issued in connection with an investigation that
“intensified” because of information obtained during an unconstitutional search.
United States v. Beacon Fed. Sav. & Loan, 718 F.2d 49, 53 (2d Cir. 1983).
Agrama claims that the “scope or focus” of the current IRS investigation, and of
this summons specifically, was shaped and intensified by evidence derived from
the Federal Bureau of Investigation’s (“FBI”) illegal search of his Los Angeles
5 home in 2006. Specifically, Agrama claims that the IRS’s current investigation
was spurred by information from an Italian forensic accountant, Gabriela
Chersicla, who was present during the FBI’s 2006 search. Agrama presses this
claim even though the report Chersicla produced at the behest of Italian
prosecutors (“Chersicla Report”) was based not on the FBI’s search, but on review
of documents seized in Hong Kong in 2007.
Agrama’s argument is flawed both legally and factually. Because Agrama
concedes that the FBI—not the IRS—conducted the 2006 search of his premises,
enforcement of the IRS summons would not constitute an abuse of judicial process
absent proof of cooperation between the FBI and IRS. See Grimes v. Comm’r, 82
F.3d 286, 290 (9th Cir. 1996) (holding that evidence illegally obtained by other
law enforcement agencies should not be suppressed in an IRS civil tax proceeding
unless there is “an agreement between agencies”). Notably, Beacon — the Second
Circuit case on which Agrama principally relies — is inapplicable on the facts
before us because it concerns an illegal search that was conducted by the IRS. See
718 F.2d at 53–55.
Further, the district court correctly concluded that receipt of the Chersicla
Report did not shape the “scope or focus” of the IRS’ investigation into Agrama.
Agrama’s argument that the IRS’s investigation was shaped by the Chersicla
Report rest on little more than speculation. In fact, even if the IRS never obtained
6 the Chersicla Report, it would have opened an investigation into Agrama: in
February 2013, months before the Chersicla Report was completed, Agrama was
expelled from the IRS’s voluntary disclosure program for failure to disclose his
criminal indictment in Italy, and IRS rules mandate the automatic examination of
any taxpayer removed from the voluntary disclosure program.
Even assuming arguendo that the “scope or focus” of the IRS investigation
was somehow impacted by the Chersicla Report, Agrama does not identify
anything in that Report, or in any of other MLAT documents, that qualifies as
privileged information — information that should not have been seen by Italian
authorities during the 2006 FBI search. Agrama possesses the summonsed
documents, so he should be able to identify any arguably tainted information they
contain. As he did not do so, he failed to demonstrate that enforcement of the
summons would constitute an abuse of process.
Finally, Agrama asserts that the summons should not be enforced because
the IRS obtained the Chersicla Report from the Italian government in
contravention of the Convention for the Avoidance of Double Taxation with
Respect to Taxes on Income and the Prevention of Fraud or Fiscal Evasion, It.-
U.S., Aug. 25, 1999, T.I.A.S. No. 09-1216 (“Tax Treaty”). There is no evidence
that the IRS obtained the Chersicla Report via the Tax Treaty; the agency was
given the Chersicla Report by a U.S. government official in Italy. Because
7 Agrama failed to advance any factual allegations suggesting that the Chersicla
Report was obtained illegally, the district court did not abuse its discretion by
denying Agrama’s request for a hearing on this issue.
AFFIRMED.3
3 In light of a new argument raised by the Government on appeal, Agrama moves to supplement the record with, or for the court to take judicial notice of, a 2006 email exchange. However, our affirmance is limited to the grounds relied upon by the district court, so Agrama’s motion is DENIED as moot.