IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

MONTY W. ERVIN and, )

PATRICIA D. ERVIN, )

)

Petitioners, )

)

v. ) Civil Action No.: 01:06mc3331-MEF

)

UNITED STATES OF AMERICA, )

)

Respondent. )

RESPONSE TO COURT ORDER

Comes now the respondent, United States of America, by and through Leura G.

Canary, United States Attorney for the Middle District of Alabama, and responds to the

Court’s Order of September 5, 2006, as follows:

1. A summons is an administrative device with which the Internal Revenue

Service (the Service) can summon persons to appear, testify, and produce documents. 

The Service is statutorily authorized to inquire about any person who may be liable to pay

any internal revenue tax, and to summons a witness to testify or to produce books, papers,

records, or other data that may be relevant or material to an investigation. 26 U.S.C. sec.

7602. Sections 7402(b) and 7604(a) of the Internal Revenue Code grant jurisdiction to

district courts to enforce a summons, and section 7604 (b) governs the general

enforcement of Summonses by the Service.

2. In United States et al. v. Powell et al., 379 U.S. 48, (1964), the Supreme

Court provided that:

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Reading the statutes as we do, the Commissioner need not

meet any standard of probable cause to obtain enforcement of

his summons, either before or after the three-year statute of

limitations on ordinary tax liabilities has expired. He must

show that the investigation will be conducted pursuant to a

legitimate purpose, that the inquiry may be relevant to the

purpose, that the information sought is not already within the

Commissioner’s possession, and that the administrative steps

required by the Code have been followed - in particular, that

the “Secretary or his delegate” after investigation, has

determined the further examination to be necessary and has

notified the taxpayer in writing to that effect. This does not

make meaningless the adversary hearing to which the

taxpayer is entitled before enforcement is ordered. At the

hearing the “may challenge the summons on any appropriate

ground,” Riesman v. Caplin, 375 U.S. 440, at 449.

3. In United States et al. v. MacElvain, 71 A.F.T.R. 2d (RIA) 2069 (M.D. Ala.

1993) and Goodson, et al. v. United States, 53 A.F.T.R 2d (RIA) 1456 (M.D. Ala. 1984)

this honorable court cited Powell. Particularly, this honorable court In MacElvain stated:

To obtain enforcement of a summons issued in the

course of an IRS investigation, the IRS must be able to

demonstrate, first, that the investigation will be conducted

pursuant to a legitimate purpose; second, the inquiry will be

relevant to that purpose; third that the information sought is

not already in the IRS’s possession; and fourth, that the IRS

has taken the administrative steps necessary to the issuance of

the summons. United States v. Powell, 379 U.S. 48, 57-59,

85 S. Ct. 248, 255, 13 L.Ed. 2d 112 (1964); United States v.

Leventhal, 961 F. 2d 936, 939-40 (11 Cir. 1992). The IRS th

may satisfy this burden merely by presenting an affidavit that

attests to these facts sworn to an officer or agent who issued

the summons. If the IRS makes this showing, the burden then

shifts to the respondent either to disprove one of the four

Powell factors or to demonstrate that enforcement of the

summons would constitute an abuse of the court’s discretion.

4. In their Motion to Dismiss, the petitioners have failed to carry their burden

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of proof that the Service has not met the four requirements of Powell or that the court

would abuse its discretion if it ordered enforcement of the summons. The petitioners are

seeking to quash the Services’s summons on essentially two grounds: 1) the IRS does not

have the authority to enforce the tax laws; 2) the summons violates the Privacy Act, 5

U.S.C. § 552a..

5. The petitioners’ arguments regarding the authority of the IRS to collect

taxes and enforce the tax laws of the United States has been oft proffered and as

frequently rejected. In the interest of brevity the petitioner cites this honorable Court to

United States v. Plemons, 2005 WL 3817683 (E.D.Tenn.), 97 A.F.T.R.2d 2006-899 (Slip

Copy attached hereto as Attachment 1), in support of its assertion that the respondent’s

claim is meritless.

6. The petitioners’ claims that the Privacy Act is somehow violated by the

issuance of third party summons is similarly misplaced. Title 26, United States Code,

Section 7852(e) states that “[t]he provisions of subsection (d), (2), (3), and (4) and (g) of

section 552a of Title 5, United States Code, shall not be applied, directly or indirectly, to

the determination of the existence or possible existence of liability (or the amount

thereof) of any person for any tax, penalty, interest, fine, forfeiture, or other imposition or

offense to which the provisions of this title apply.”

Respectfully submitted this 15 day of September, 2006. th

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LEURA G. CANARY

United States Attorney

 By: /s/R. Randolph Neeley 

 R. RANDOLPH NEELEY

Assistant United States Attorney

Bar Number: 9083-E56R

Post Office Box 197

Montgomery, AL 36101-0197

Telephone No.: (334) 223-7280

Facsimile No.: (334) 223-7418

E-mail: rand.neeley@usdoj.gov

CERTIFICATE OF SERVICE

I hereby certify that on September 15, 2006, I electronically filed the foregoing

with the Clerk of the Court using the CM/ECF system, and I hereby certify that I have

mailed, by United States Postal Service, a copy of same to the following non-CM/ECF

participant(s):

Monty W. Ervin

P.O. Box 7044

Dothan, AL 36302

Patricia Ervin

P.O. Box 7044

Dothan, AL 36302

s/R. Randolph Neeley 

Assistant United States Attorney

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Briefs and Other Related Documents

United States District Court,E.D. Tennessee.

UNITED STATES OF AMERICA and

Rachel S. May, Revenue Officer of the

Internal Revenue Service, Petitioners

v.

Sharon PLEMONS, Respondent

UNITED STATES OF AMERICA and

Rachel S. May, Revenue Officer of the

Internal Revenue Service, Petitioners

v.

Lamar G. PLEMONS, Respondent

No. 3:05-CV-282, 3:05-CV-283.

Dec. 1, 2005.

Loretta S. Harber, U.S. Department of Justice,

Office of U.S. Attorney, Knoxville, TN, for

Petitioners.

Sharon Plemons, Louisville, TN, pro se.

Lamar G. Plemons, Louisville, TN, pro se.

MEMORANDUM AND ORDER

JARVIS, J.

*1 These matters are presently before the

court on respondents' motions to dismiss the

pending petitions to enforce the IRS

summonses [see Doc. 4]. The issues raised FN1

have been briefed by the parties [see Docs. 4

and 11]; thus, these matters are now ripe for

adjudication. For the reasons that follow,

respondents' motions will be denied whereby

these matters will be reset for show cause

hearings.

FN1. For convenience's sake, the court

will reference only one docket number

because the docket numbers in both

cases are precisely the same.

I. 

The pending petitions have their genesis in the

IRS investigations regarding the tax liability

of respondents Sharon L. and Lamar G.

Plemons (respondents) by IRS Revenue

Officer Rachel S. May (Officer May) because,

according to the government, respondents did

not file tax returns for the years 2002 and

2003. On October 26, 2004, Officer May

issued IRS summonses to respondents,

requesting that they appear on November 15,

2004, to give testimony and produce

information relative to their tax liability [see

Doc. 1, Ex. A, ¶ 6]. Although the summonses

were duly served, respondents did not appear

before Officer May as directed.

On June 9, 2005, the government filed the

pending petitions to enforce IRS summonses

[see Doc. 1]. On the following day, the court

entered orders to show cause requiring

respondents to appear and explain why they

should not be compelled to obey the

summonses [see Doc. 2]. On June 30, 2005,

the respondents, proceeding pro se, filed the

pending motions to dismiss, arguing that the

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court lacks subject matter jurisdiction.FN2

Respondents also request costs for “seeking

legal guidance ... and [for] obtaining expert

assistance.” [See Doc. 4, p. 8, ¶ 3].

FN2. These filings were also

captioned as responses to the orders to

show cause. However, the show cause

orders require that any explanation

proffered to counter the government's

petition and Officer May's sworn

declaration be likewise presented

through sworn testimony, i.e.,

affidavits. These filings by

respondents lack sworn (or even

unsworn) declarations. Consequently,

any statements or arguments contained

in these filings that respondents intend

to rebut the IRS' prima facie showing

t ha t t he sum mons e s wer e

appropriately issued are insufficient

and need not be addressed in this

memorandum and order. As one court

has observed:

It is well settled that a party opposing

an IRS summons must come forward

with specific facts, under oath, from

his own resources, demonstrating that

a triable issue exists on a legally

sufficient defense, in order to justify

an evidentiary hearing.

Godwin v. United States, 564 F.Supp.

1209, 1215 (D.Del.1983) (citations

omitted).

II. 

Respondents advance two key arguments to

contest the subject matter jurisdiction of this

court to enforce the IRS summonses at issue.

First, respondents contend that the statutory

provisions which confer jurisdiction on

district courts to enforce IRS summonses, 26

U.S.C. §§ 7402(b) and 7604(a), are limited by

“implementing regulations” that apply only to

Alcohol, Tobacco, and Firearms (ATF)

activities. Because respondents have never

been involved in such activities, they argue

that neither Officer May nor this court have

any authority to “investigate individuals who

have never engaged in those business

activities.” [Doc. 4, pp. 3-4].

Respondents' second argument is that Officer

May, who is assigned to the Small Business /

Self-Employed Business Division, had no

authority to issue and serve the summonses in

dispute because respondents are neither a

small business nor self-employed individuals.

Consequently, respondents contend that this

court does not have jurisdiction to enforce

summonses that the IRS had no authority to

issue in the first place. Neither argument has

merit.

A. 

The IRS is authorized to make inquiries

concerning any person who may owe any

Internal Revenue tax. 26 U.S.C. § 7601.

Unless a taxpayer has been referred to the

Justice Department for criminal prosecution,

the IRS may issue an administrative summons

requiring any person-including the

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taxpayer-having possession of financial

records concerning the taxpayer to produce

those records. 26 U.S.C. § 7602(a)(2). The

Commissioner of the IRS is given authority by

Congress to have summonses issued to

discharge this investigative responsibility. 26

U.S.C. § 7602; see also 26 C.F.R. §

301.7602-1. Absent a specific showing to FN3

the contrary, a presumption of integrity and

regularity existsregarding IRS investigations.

See McTaggart v. United States, 570 F.Supp.

547, 549 (E.D.Mich.1983).

FN3. Treasury regulation 26 C.F.R. §

301.7602-1 states:

(a) For the purpose of ascertaining the

correctness of any return, making a

return where none has been made,

determining the liability of any person

for any internal revenue tax ... any

authorized officer ... may examine any

books, papers, records or other data

which may be relevant or material to

such an inquiry.

(b) For the purposes described in §

301.7602-1(a), the Commissioner is

authorized to summon the person ... to

appear before one or more officers ...

[and the] Commissioner may

designate one or more officers ... as

the individuals before whom a person

summoned ... shall appear.

(emphasis added).

*2 After a summons has been issued by the

IRS, there is no provision for personal

enforcement of the summons by the Secretary

of the Treasury or his delegate, the

Commissioner of the IRS. See, e.g.,

Donaldson v. United States, 400 U.S. 521,

524 (1971). If enforcement of the summons is

desired, the IRS must proceed under 26

U.S.C. § 7402(b) or its sister and essentially

identical statute, 26 U.S.C. § 7604(a). Those

statutes are as follows:

(b) To enforce summons.-If any person is

summoned under the internal revenue laws to

appear, to testify, or to produce books, papers,

or other data, the district court of the United

States for the district in which such person

resides or may be found shall have jurisdiction

by appropriate process to compel such

attendance, testimony, or production of books,

papers, or other data.

26 U.S.C. § 7402(b).(a) Jurisdiction of district

court.-If any person is summoned under the

internal revenue laws to appear, to testify, or

to produce books, papers, records or other

data, the United States district court for the

district in which such person resides or is

found shall have jurisdiction by appropriate

process to compelsuch attendance, testimony,

or production of books, papers, records, or

other data.

26 U.S.C. § 7604(a).

Respondents argue that the IRS' authority to

bring a proceeding pursuant to either 26

U.S.C. § 7402(b) or § 7604(a) arise only from

“implementing regulations ... not in Title 26

Income Taxes but in Title 27 Alcohol,

Tobacco and Firearms Taxes.” [See Doc. 4,

pp. 3-4]. Respondents further argue that

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Officer May has “no authority to investigate

individuals who have never engaged in those

business activities[, i.e., alcohol, tobacco and

firearms]....” [Id. at 4]. Respondents submit

therefore that the summonses issued by

Officer May are not “legitimate” so that “there

can be no legitimate request for Court action

in this matter.” [Id. at 7]. Respondents are

simply mistaken.

The plain language of 26 U.S.C. § 7602(a)

allows the IRS to summon “any person” to

determine his or her tax liability. The statute,

by its very language, imposes no restrictions

that limit the scope of the summons authority

to persons involved in alcohol, tobacco, and

firearms activities. Treasury regulation 26

C.F.R. § 301.7602-1, which has already been

set forth previously in this memorandum and

order, likewise makes the same

pronouncement. The IRS therefore has “both

statutory and regulatory authority to issue the

summons.” United States v. Streett, 791

F.Supp. 563, 568 (D.Md.1992).

The court observes that respondents'

arguments regarding “implementing”

regulations are not unique. These same

arguments have been advanced by others

attempting to avoid legitimate IRS

investigations and have been soundly and

uniformly rejected by other courts. As recently

noted by the district court in the Eastern

District of Kentucky regarding this precise

same argument:

*3 Respondent's arguments-frequently heard

in recent years from similar “tax

protesters”-have been soundly rejected by

numerous courts. “It is patent that section

7602 is not so limited. A summons can be

issued to determine the taxability of ‘any

person.” ’ (citations omitted).

In addition, Treasury regulation § 301.7602-1

authorizes the IRS to implement § 7602 with

respect to “any person.” Therefore, the ATF

regulations are not the exclusive source of

authority for summons issued pursuant to 26

U.S.C. § 7602. Finally, every court faced with

this issue has rejected Respondent's argument,

to the extent that Respondent would imply

that ATF regulations govern the issuance of

IRS administrative summons. (citations

omitted).

United States of America v. Hibben, 2005 WL

1208861 at *2 (E.D.Ky. Feb.16, 2005). This

court too rejects respondents' argument that

the authority delegated to the IRS to issue

administrative summonses is limited to

matters involving alcohol, tobacco, and

firearms. The court concludes that it has

jurisdiction pursuant to 26 U.S.C. §§ 7402(b)

and 7604(a) to enforce the summonses at

issue.

B. 

Respondents' next argument is that because

Officer May's position with the IRS is in the

Small Business / Self-Employed Division, she

has no authority to conduct investigations

involving individual taxpayers, including the

issuance of summonses to individual

taxpayers. Respondents have no case law in

support of this novel argument.

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Pursuant to 26 U.S.C. § 7602(a)(2), Congress

authorized the Secretary of the Treasury to

issue summonses and has allowed for the

delegation of that authority, pursuant to 26

U.S.C. §§ 7701(a)(11)(B) and (a)(12)(A), to

flow directly to the Commissioner of the IRS.

See 26 C.F.R. § 301.7602-1. Likewise, the

Commissioner's authority is re-delegated to

those working under him so that the objectives

and responsibilities of the IRS may be

undertaken. The court agrees with the

government that revenue officers such as

Officer May, regardless of the particular IRS

division to which they have been assigned, are

authorized by law to issue and serve

summonses, as well as to establish the time

and place for appearance, to take testimony

under oath of the persons summoned, and to

receive and examine data produced in

compliance with the summonses. Internal

Revenue Manual 1.2.52.5, Delegation Order

4, August 16, 2002.

Again, respondents are not the first to make

similar arguments to challenge a court's

jurisdiction or to explain non-compliance with

an IRS summons. The court in Hibben also

rejected such an argument:

Mr. Hibben's suggestion that Agent Williams

is either not an authorized agent of the Internal

Revenue Service or is somehow not

empowered to issue an administrative

summons is rejected as frivolous. Rather than

reinventing the wheel, the court will again

quote from the analysis of the court in

Stoecklin in rejecting a similar argument:

Respondent argues that the summons was

improperly served upon him because service

was by a revenue officer and revenue officers

have not been properly delegated authority to

serve IRS summons. “[T]he Secretary” is

authorized to issue a summons, 26 U.S.C. §

7602(a)(2). This includes the delegate of the

Secretary of the Treasury, 26 U.S.C. §

7701(a)(11)(B), which in turn includes

redelegations of authority. 26 U.S.C. §

7701(a)(12)(A).... The Commissioner has

delegated the authority to issue summons to

Revenue Officers, Internal Revenue Service

Delegation Order No. 4 (Rev.20), which was

published prior to service of this summons.

*4 Hibben, at *3-4 (quoting United States v.

Stoecklin, 848 F.Supp. 1521, 1526-27

(M.D.Fla.1994)).

Here, the court finds that Officer May has the

delegated authority to investigate the tax

liability of respondents and to issue a

summons for them to appear before her.

Respondents' arguments to the contrary are

rejected.

C. 

Finally, respondents request the “cost of

seeking legal guidance in how to address

Petitioners' continued harassment and

continued refusal to correct the record, and the

cost of obtaining expert assistance in decoding

and analysis of the Individual Master File.”

[See Doc. 4, p. 8]. Not only is there no

statutory authority to grant respondents'

request, but also the court finds that this

request has no merit because of the frivolous

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and baseless nature of respondents' motions to

dismiss.

III. 

For the reasons foregoing, respondents'

motions to dismiss [Doc. 4] are hereby

DENIED whereby this matter will be reset for

a show cause hearing on February 7, 2006, at

11:00 a.m., in Courtroom 1B of the Howard

H. Baker Jr. United States Courthouse, 800

Market Street, Knoxville, Tennessee 37902.FN4

Respondents are cautioned that their failure to

appear will result in the issuance of bench

warrants for their immediate arrest.

FN4. The attorney for the government

and the pro se petitioners are directed

to confirm the precise courtroom

location with the court security

officers immediately prior to this

hearing.

E.D.Tenn.,2005.

U.S. v. Plemons

Slip Copy, 2005 WL 3817683 (E.D.Tenn.), 97

A.F.T.R.2d 2006-899

Briefs and Other Related Documents(Back to

top)

• 2005 WL 2890581 (Trial Motion,

Memorandum and Affidavit) Petitioners'

Response to Motion to Dismiss (Sep. 28,

2005) Original Image of this Document (PDF)

• 2005 WL 2890583 (Trial Motion,

Memorandum and Affidavit) Petitioners'

Response to Motion to Dismiss (Sep. 28,

2005) Original Image of this Document (PDF)

• 3:05cv00282 (Docket) (Jun. 09, 2005)

• 3:05cv00283 (Docket) (Jun. 09, 2005)

END OF DOCUMENT

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