Opinion
No. MC 02-0063 PHX PGR
January 24, 2003
ORDER
Pending before the Court is the United States' Motion to Dismiss and Counterpetition to Enforce Summons, filed November 15, 2002. Having considered the parties' memoranda, the Court finds that the motion should be granted.
The plaintiff's petition seeks to quash an administrative third-party summons issued to the Wells Fargo Bank, N.A. on September 19, 2002 on behalf of the Internal Revenue Service by David Shelton, a special agent of the I.R.S.'s Criminal Investigation Division. The gist of the plaintiff's position is that Shelton lacks the statutory authority to issue such a summons because 26 U.S.C. § 7608(B)(2)(A) only grants an I.R.S. criminal investigator the authority to serve summons and does not grant such an agent the authority to issue and/or execute a summons.
Special Agent Shelton also issued a third-party summons to Wells Fargo Bank on September 11, 2002. The enforceability of that summons was at issue in MC 02-0062 PHX EHC. the Honorable Earl H. Carroll granted the United States' motion to dismiss the plaintiff's petition to quash that summons and ordered the summons enforced in an order entered on December 12, 2002.
26 U.S.C. § 7608(b)(2), which sets forth the functions authorized to be performed by a criminal investigator of the Intelligence division of the I.R.S., provides in subsection (A) that such an investigator has the authority "to execute and serve search warrants and arrest warrants, and serve subpoenas and summonses issued under the authority of the United States[.]"
The Court concludes that the plaintiff's contention is meritless because "[i]t is now undisputed that a special agent is authorized, pursuant to 26 U.S.C. § 7602, to issue an Internal Revenue summons in aid of a tax investigation with civil and possible criminal consequences." Couch v. United States, 409 U.S. 322, 326, 93 S.Ct. 611, 614-15 (1973) (Court enforced compliance with a summons issued by an I.R.S. Intelligence Division agent); accord, United States v. Studley, 783 F.2d 934, 940-41 (9th Cir. 1985), cert. denied, 455 U.S. 942 (1982).
The Court further concludes that the summons served on Wells Fargo Bank, N.A. on September 19, 2002 was validly issued and should be enforced. In order to obtain the enforcement of an I.R.S. summons, the United States must establish its "good faith" by showing that the summons was issued for a legitimate purpose, that it seeks information relevant to that purpose that is not already within the I.R.S.'s possession, and that the summons satisfies all administrative steps required by federal law. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-55 (1964). The United Stats' burden is "a slight one" that is satisfied by the submission the a sworn declaration of the I.R.S. agent who issued the summons showing that the Powell requirements have been met. Fortney v. United States, 59 F.3d 117, 119-20 (9th Cir. 1995). The sworn declaration submitted by Special Agent Shelton (doc. #14) is sufficient to satisfy the United States' burden because it establishes that the summons at issue met all of the pertinent requirements of 26 U.S.C. § 7609.
Because the United States has met its prima facie case, a heavy burden is placed on the plaintiff to show that the issuance of the summons amounted to an abuse of process or the lack of institutional good faith.Id. at 120. The plaintiff has made no such showing inasmuch as his opposition to the enforcement of the summons is based solely on his unfounded belief that the summons was issued outside of statutory authority. Therefore,
IT IS ORDERED that the United States' Counterpetition to enforce Summons (doc. #2-2) is granted.
IT IS FURTHER ORDERED that the United States' Motion to Dismiss (doc. #2-1) is granted and that this action is dismissed. The clerk of the Court shall enter judgment accordingly.