Opinion
MISC ACTION NO: 04-0116, SECTION: "C" (6)
March 16, 2004
Hemant Sharma, for the government
John Wilson Reed, Esq., for Tim T. Zufle
RULING ON MOTIONS HELD MARCH 10. 2004
This matter came before the court on the government's "Petition to Enforce Internal Revenue Service Summons and Order to Show Cause." (Rec. Doc. 1). Therein, the government contended that Tim T. Zufle was served with a copy of the summons by leaving it at Zufle's last and usual place of abode. On October 1, 2002, Zufle requested and was granted an extension of time within which to appear by Revenue Agent Wayne L. Bacino, Sr. Zufle was therefore to appear pursuant to the summons on October 9, 2002, but failed to appear or otherwise comply with the summons.
According to the Declaration attached to the I.R.S.'s motion, Agent Bacino is conducting an investigation for the purpose of determining the correct federal income tax liabilities of Tim T. Zufle for the years 1999 and 2000.
On January 15, 2004, the government therefore filed the instant petition to enforce Internal Revenue Service Summons and Order to Show Cause. Internal Revenue Agent David C. Carrone, by written declaration, initially attested to the fact that he personally served Zufle with this Court's Order to Show Cause on February 4th, 2004, wherein Zufle was ordered to appear before the undersigned Magistrate Judge on March 10, 2004 at 11:00 a.m. to show cause why the subject summons should not be enforced.
On February 23, 2004, Zufle, through counsel, filed a "Response to Motion to Enforce Summons" (Rec. Doc. 3), therein claiming that Tim T. Zufle had never been personally served with the Order to Show Cause. Additionally, Zufle claimed that the petition was unenforceable because he intends to assert his Fifth Amendment privilege.
The I.R.S. filed a Reply to Zufle's Response on March 9, 2004, reiterating that Zufle was personally served and requesting, alternatively, that the Court modify its Order to Show Cause nunc pro tunc to allow service pursuant to Rule 4 of the Federal Rules of Civil Procedure. The I.R.S. also asserted that Zufle could not resist complying with the summons on the basis of a blanket claim of Fifth Amendment privilege.
At the hearing, held March 10, 2004, Zufle did not appear. His attorney, John Wilson Reed, did appear and called witness, George David Lentz to the stand relative to the issue of whether Zufle was personally served. Lentz testified that he was the individual who answered the door to Agent Carrone on February 4, 2002 at 500 Fairfield Avenue, Gretna, Louisiana. Lentz testified that, as he was opening the door, the agent stepped forward and pushed some papers in the door. When the agent began walking away, Lentz opened the door to ask what was going on. The agent held up his identification and indicated he was with the I.R.S. Lentz further stated that the papers, which were in an envelope, fell to the ground and were left outside in the rain. Lentz also stated that he walked to the curb and took down the agent's license plate number. Lentz reported to the court that he had not seen Tim T. Zufle since early January, 2004.
Agent David Carrone testified for the I.R.S. that he attempted to serve the Rule to Show Cause to Tim T. Zufle on February 4, 2004 at 8:01 p.m., and believed that he had succeeded. Agent Carrone identified the person he served by using a picture identification taken from the Louisiana Department of Motor Vehicles (submitted into evidence as Exhibit "D and attached to this minute entry). However, after seeing witness George David Lentz, Carrone conceded that he had actually served Mr. Lentz. Agent Carrone testified that he went to 500 Fairfield Avenue in Gretna, Louisiana, unarmed, because he was asked to serve Mr. Zufle with the Order to Show Cause, the petition and exhibits. The reason why Carrone went to that particular address, he explained, was because it was the last identified address known for Mr. Zufle learned through using the computerized locator services of IDRS and Choicepoint. Carrone testified that the individual who answered the door at that address was carrying a large gun, a club and a can of mace. Upon seeing this individual with a weapon, Carrone shoved the papers through the door and immediately began to leave the property.
Based upon the above-noted facts established during the hearing, the court finds and the government concedes that Mr. Tim T. Zufle was not personally served. Additionally, the court hereby denies the I.R.S.'s request that the court's order of January 16th, 2004, should be modified nunc pro tunc to allow service which complies with Rule 4(e)(2). The I.R.S.'s proposed order to this court, which was granted, specifically requested personal service. If the I.R.S. would like to again attempt to serve Tim T. Zufle without the requirement of personal service, the agency should submit a new proposed Rule to Show Cause Order which allows for service sufficient pursuant to Rule 4. Accordingly,
The Order reads: "That a copy of this Order, together with the Petition and the exhibits attached thereto, shall be personally served upon the respondent, by the United States Marshal or by an employee of the Internal Revenue Service, on or before the 6th day of February, 2004."
Rule 4(e)(2) states that service upon an individual may be effected "by delivering a copy of the summons and of the complaint to the individual personally or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein . . ."
ORDER
IT IS ORDERED that the I.R.S.'s request for nunc pro tunc modification of this court's January 16, 2004 Order is hereby DENIED.
IT US FURTHER ORDERED that the Order to Show Cause is DISMISSED WITHOUT PREJUDICE for failure to effect personal service upon Tim T. Zufle.
With regard to Zufle's claim that the summons is unenforceable based upon Fifth Amendment privilege, the objection will be taken up by the court after proper service is made upon Zufle.