Opinion
No. 1:05-mc-6.
April 28, 2005
MEMORANDUM AND ORDER
The United States has moved for a protective order (Court File No. 14) relating to certain discovery requests served upon it by the plaintiff, Gregory J. Williams. This matter is before the Court upon the plaintiff's petition to quash four summonses issued by the United States under 26 U.S.C. § 7609.
It is well settled that "there is no unqualified right to pretrial discovery in a summons enforcement proceeding." United States v. Markwood, 48 F.3d 969, 982-83 (6th Cir. 1995) (quoting United States v. Will, 671 F.2d 963, 968 (6th Cir. 1982)). Such a proceeding is summary in nature and to bestow an unqualified right to pretrial discovery "would often destroy the summary nature of such a proceeding." Id. Thus, pretrial discovery in such situations is limited to those cases whether the taxpayer makes "a preliminary and substantial demonstration of abuse" of the summons process on the part of the United States. Id; see also United States v. Patrick, 1995 WL 687100*2 (E.D. Mich. Sept. 12, 1995) ("an enforcement proceeding is designed to be summary in nature and conducted expeditiously, so the court has the power to limit discovery . . . To that extent, the taxpayer must make a preliminary and substantial demonstration of abuse before the court will permit any discovery . . ." (emphasis in original); Beck v. United States, 2002 WL 31002875*1 (E.D. Ky. July 22, 2002) (holding that absent a substantial, preliminary showing of abuse of process, the plaintiffs had no right to conduct discovery).
The plaintiff in the instant case argues that the four summonses at issue in this enforcement proceeding are abusive because the IRS is attempting to gain information to be used in a later criminal prosecution against him, a purpose which the plaintiff contends is improper. However, as the government has noted, the Internal Revenue Code was amended in 1982 to authorize administrative summonses for use in both civil tax and criminal tax investigations. See 26 U.S.C. § 7602(b). Consequently, plaintiff has made no preliminary and substantial showing of abuse to justify discovery in this matter.
Therefore, for the reasons stated herein, the United States' motion for a protective order is GRANTED.