Opinion
No. 317, Docket 23594.
Argued April 21, 1955.
Decided June 22, 1955.
Corcoran Kostelanetz, Boris Kostelanetz, New York City, for petitioner-appellant.
J. Edward Lumbard, U.S. Atty. for Southern Dist. of New York, New York City (Clement J. Hallinan, Jr., New York City, of counsel), for respondent-appellee.
Before FRANK, MEDINA and HINCKS, Circuit Judges.
In the court below, where no suit relating to appellant was then pending, appellant obtained an order, addressed to the Internal Revenue Service, to show cause why the court should not vacate a summons, issued pursuant to 26 U.S.C. § 7602, by a Special Agent of the Internal Revenue Service, directing Donald Daniels, the president of appellant, to appear before the agent and there to testify and to produce certain books and papers of appellant. The summons read as follows:
"Summons to Appear, to Testify, and to Produce Books, Etc.
"In the matter of the tax liability of Donald Daniels
"District of New York for the years 1948 and 1949
"The Commissioner of Internal Revenue
"To Donald Daniels, Pres. International Commodities Corp. Residing at c/o Donald Daniels 860 — 5th Ave., New York, N Y
" Greeting:
"You are hereby summoned and required to appear before the undersigned Special Agent of the Internal Revenue Service, at 253 Broadway, New York, N.Y., on the 10th day of January 1955, at 10:00 o'clock in the forenoon, to give testimony in the matter of the tax liability of the above-named person for the years designated, and directed to bring with you the following books and papers: bank statements and cancelled checks of the International Commodities Corp., check stub book of the International Commodities Corp., cash book, general ledger, purchase sales book and any other books of account maintained by the International Commodities Corp.
"Failure to comply with this summons will render you liable to proceedings in the district court of the United States for the district in which you reside, to compel your attendance, testimony, and production of books, etc.
"Issued under authority of Section 7602 of the Internal Revenue Code, this 22nd day of December, 1955.
"Sidney S. Shindler, "Special Agent."
Appellant contended that the summons was directed to it, a non-resident alien corporation, which was not amenable to service of process. The district court, holding that the summons was directed to Daniels as an individual, entered an order denying relief sought by appellant. As the order terminated that suit, it is final and appealable. Appellee's motion to dismiss the appeal is therefore denied.
The summons was directed to "Donald Daniels, Pres., International Commodities Corp." If directed to the company, not to Daniels as an individual, (a) it would not have said, as it did, " You are summoned, etc. * * * to give testimony," and (b) would have said "bring * * * your bank statements and cancelled checks," and not " the bank statements, etc., of the International Commodities Corp." (Emphasis added.)
Affirmed.