June 18, 2009.
Paul J. Kozacky, Jerome R. Weitzel, Kozacky Weitzel, Chicago, IL, Robin O'Day Dettmer, Whitaker, Chalk, Swindle Sawyer, Fort Worth, TX, Daniel D. Holliday, III, Baton Rouge, LA, for Plaintiffs-Appellants.
Karen G. Gregory, Richard Donald Euliss, Robert W. Metzler, U.S. Department of Justice, Washington, DC, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of Louisiana, New Orleans, 2:08-CV-936.
Before KING, GARWOOD, and DAVIS, Circuit Judges.
Plaintiffs-appellants Zugerese Trading LLC and Harbor Bay Fund LLC (collectively, "Petitioners") appeal the district court's denial of their petition to quash an IRS summons — issued pursuant to 26 U.S.C. § 7602 — and grant of the IRS's motion to enforce the summons. Additionally, Petitioners assert that the district court erred by refusing to conduct an evidentiary hearing and to permit discovery before denying the petition to quash. We conclude that the IRS has made a prima facie showing that it has satisfied the Powell factors and that Petitioners have failed to meet their heavy burden of rebutting that showing. See Mazurek v. United States, 271 F.3d 226, 229-30 (5th Cir. 2001). Additionally, the district court did not abuse its discretion in foregoing an evidentiary hearing and preliminary discovery in this case. See id. at 234-35. Thus, we affirm the rulings of the district court for the following reasons:
1. The IRS succeeded in meeting its minimal burden of making a prima facie showing of the Powell factors. Despite Petitioners' contentions to the contrary, Agent Larry Weinger's statements were sufficient to make this showing. See Hintze v. IRS, 879 F.2d 121, 126 (4th Cir. 1989) ("In order to establish a prima facie case . . ., the IRS need only present an affidavit of an agent involved in the investigation averring the Powell good faith elements." (internal quotation marks omitted)).
2. Petitioners fail to persuade us that the IRS summons is not relevant to a legitimate purpose. The concept of relevance under § 7602 is broader than that under the Federal Rules of Evidence. See United States v. Arthur Young Co., 465 U.S. 805, 813-14 n. 11, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984); United States v. Linsteadt, 724 F.2d 480, 482 (5th Cir. 1984). Thus, we find unavailing Petitioners' argument that the IRS cannot rely on the 2007 Coordinated Issue Paper because the transaction described there does not exactly match the transaction in question here. Similarly, we are unconvinced that the alleged statements of IRS auditors — that the efforts of the president of Petitioners' tax matters partner in an earlier, separate audit were "sincere" — indicate that the IRS has no legitimate basis for its current investigation. Further, the arguments made in Klamath Strategic Investment Fund ex rel. St. Croix Ventures v. United States, 568 F.3d 537 (5th Cir. 2009), do not preclude all of the possible theories under which the IRS seeks to disallow the losses in this case. Finally, the summons is not overly broad because it describes the requested material with sufficient particularity to permit the summoned party to respond adequately. See Linsteadt, 724 F.2d at 483; see also Adamowicz v. United States, 531 F.3d 151, 157-58 (2d Cir. 2008).
3. Petitioners assert that the IRS already possesses the documents it seeks in the summons. That is not the case, however; while Petitioners point to related documents that they claim the IRS has already received, they do not argue that the IRS possesses the specific documents sought by the summons. See United States v. Davis, 636 F.2d 1028, 1037 (5th Cir. Unit A 1981); PAA Mgmt., Ltd. v. United States, No. 91-C-168, 1992 WL 346314, at *5 (N.D.Ill. Nov. 19, 1992).
4. We also find no error in the district court's conclusion that enforcement of the summons does not constitute an abuse of the court's process. First, Petitioners have not shown that the IRS abandoned the goal of ascertaining the correct tax liability of Zugerese Trading LLC by issuing a final partnership administrative adjustment. See PAA Mgmt., Ltd. v. United States, 962 F.2d 212, 217-19 (2d Cir. 1992); PAA Mgmt., Ltd. v. United States, 817 F.Supp. 425, 426-27 (S.D.N.Y. 1993). Second, Petitioners' argument — that the issuance of the summons by the IRS was somehow improper because it would likely elicit a motion to quash that, in turn, would toll the limitations period applicable to assessing tax liability — is unsupported by any authority and fails to take into account the issuance of the final partnership administrative adjustment (which did toll the limitations period). And third, the record does not support Petitioners' contention that the IRS issued the summons as a form of harassment by putting pressure on the taxpayer to settle a collateral dispute, see United States v. Bisceglia, 420 U.S. 141, 146, 95 S.Ct. 915, 43 L.Ed.2d 88 (1975), or by seeking to extort records from Petitioners' counsel, see United States v. Equitable Trust Co., 611 F.2d 492, 500 (4th Cir. 1979).
5. We cannot say that the district court abused its discretion by foregoing an evidentiary hearing and preliminary discovery before denying the petition to quash and granting the motion to enforce the summons. Summons proceedings must be summary in nature, see United, States v. Stuart, 489 U.S. 353, 369, 109 S.Ct. 1183, 103 L.Ed.2d 388 (1989), and an evidentiary hearing and discovery are not required in each and every case, see Mazurek, 271 F.3d at 234; Harris, 628 F.2d at 879. Petitioners claim that a hearing and discovery are necessary to support their assertion that the IRS issued the summons for an improper purpose. See United States v. Se. First Nat'l Bank, 655 F.2d 661, 667-68 (5th Cir. Unit B 1981). However, the information they propose to find from such proceedings — to the extent they made such a proffer to the district court — is clearly aimed at arguments underlying the merits of the tax issue to be litigated in Tax Court and not at the issue pertinent in these proceedings — the good faith of the IRS in issuing the summons, cf. Mazurek, 271 F.3d at 235. In other words, Petitioners' challenges fail to raise in a substantial way the existence of deficiencies in the summons proceedings. See United States v. Harris, 628 F.2d 875, 879 (5th Cir. 1980); United States v. Newman, 441 F.2d 165, 169 (5th Cir. 1971).
6. Finally, we are unpersuaded by Petitioners' assertion that the district court erred by failing to deem certain of their unchallenged allegations admitted by the IRS. While the Federal Rules of Civil Procedure apply in summons proceedings, they are not as inflexible as Petitioners would have them. See Donaldson v. United States, 400 U.S. 517, 528, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971); see also FED.R.Civ.P. 81(a)(5). The IRS sufficiently responded to the petition to quash the summons with a motion to enforce the summons. See 26 U.S.C. § 7609(b)(2)(A); Good Karma Trading, LLC v. United States, No. 07-CV-01688, 2008 WL 4879164 (D.Colo. Sept. 29, 2008).