Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 15-1285 

FRANK GANGI, et al., 

Petitioners, Appellants, 

v. 

UNITED STATES, 

Respondent, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Thompson, Circuit Judge, 

Souter, Associate Justice,*

and Kayatta, Circuit Judge. 

Joseph A. DiRuzzo, III, with whom Fuerst Ittleman David & 

Joseph, PL was on brief, for appellants. 

Robert W. Metzler, Attorney, Tax Division, Department of 

Justice, with whom Caroline D. Ciraolo, Acting Assistant Attorney 

General, John Schumann, Attorney, Tax Division, Department of 

Justice, and Carmen M. Ortiz, United States Attorney, were on 

brief, for appellee. 

March 30, 2016 

 * Hon. David H. Souter, Associate Justice (Ret.) of the 

Supreme Court of the United States, sitting by designation. 
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Per Curiam. Frank Gangi and several of his companies 

(collectively, "Gangi") petitioned to quash summonses issued by 

agents of the Internal Revenue Service conducting investigations. 

Applying Sugarloaf Funding, LLC v. U.S. Dep't of the Treasury, 584 

F.3d 340 (1st Cir. 2009), the district court denied the petitions 

without an evidentiary hearing and entered an order enforcing the 

summonses. Thereafter, the Supreme Court decided United States v. 

Clarke, 134 S. Ct. 2361 (2014). Gangi then claimed that Clarke 

altered the law previously applied in this circuit defining the 

right of an objecting taxpayer in Gangi's position to an 

evidentiary hearing to question IRS agents. For that reason he 

moved for relief under Federal Rule of Civil Procedure 60(b)(5) on 

the ground that it would be inequitable going forward to apply the 

district court's order denying the petitions to quash without 

allowing examination in open court of the agents involved. See 

Fed. R. Civ. P. 60(b)(5) ("[T]he court may relieve a party . . . 

from a final . . . order . . . [if] . . . applying it prospectively 

is no longer equitable."). The district court denied the motion, 

and Gangi appealed. 

The district court did not abuse its discretion in 

determining that it could equitably apply its pre-Clarke order in 

a post-Clarke world. See United States v. Kayser-Roth Corp., 272 

F.3d 89, 100 (1st Cir. 2001) (Rule 60(b)(5) denials are reviewed 

for abuse of discretion). For purposes of Gangi's case, Clarke 
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did not materially change the law applied here. Clarke explained 

that a taxpayer has a right to examine IRS agents about the reasons 

for issuing a summons only when "he points to specific facts or 

circumstances plausibly raising an [implication] of bad faith," 

134 S. Ct. at 2365; that is, only when he "offer[s] some credible 

evidence supporting his charge," id. at 2367. This is 

substantially consistent with the standard set forth in Sugarloaf, 

that the taxpayer "must allege specific facts and evidence to 

support" an allegation that the summons was issued in bad faith. 

See 584 F.3d at 346 (quoting Sterling Trading, LLC v. United 

States, 553 F. Supp. 2d 1152, 1156 (C.D. Cal. 2008)). Sugarloaf's 

specific evidence tending to rebut good faith is the practical 

equivalent of Clarke's specific facts and circumstances plausibly 

suggesting bad faith. And while Clarke was explicit that an offer 

of circumstantial evidence could suffice, nothing in Sugarloaf so 

much as hinted otherwise. There is consequently no reason to doubt 

the equity of applying the district court's original order based 

on Sugarloaf together with the finding that Gangi had failed to 

refer to any specific available evidence tending to rebut the IRS's 

prima facie showing of proper purpose. 

The denial of Gangi's Rule 60(b)(5) motion is AFFIRMED.