United States Court of Appeals

For the First Circuit

No. 08-2515

SUGARLOAF FUNDING, LLC; DERRINGER TRADING, LLC;

KNIGHT TRADING, LLC; PORTFOLIO PROPERTIES, INC.;

WARWICK TRADING, LLC; JOHN E. ROGERS,

Petitioners, Appellants,

v.

U.S. DEPARTMENT OF THE TREASURY,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Torruella, Lipez and Howard,

Circuit Judges.

Jerome R. Weitzel, with whom Paul J. Kozacky, Kozacky &

Weitzel, P.C., Richard E. Quinby, Lauren J. Coppola and Craig &

MaCauley, were on brief, for appellants.

Rachel I. Wollitzer, Attorney, Tax Division, Department of

Justice, with whom Michael J. Sullivan, United States Attorney,

John A. DiCicco, Acting Assistant Attorney General, Gilbert S.

Rothenberg, Acting Deputy Assistant Attorney General and Robert

W. Metzler, Attorney, Tax Division, Department of Justice, were

on brief, for appellee.

October 7, 2009
See In re: Good Karma, LLC, 528 F. Supp. 2d 1361, 1362-63 1

sch. A (J.P.M.L. 2007)(denying motion for consolidation of pretrial proceedings).

See, e.g., Bodensee Fund, LLC v. United States, No. 07-3209,

2

2008 WL 4490361 (D.N.J. Sept. 30, 2008); Howa Trading, LLC v.

United States Dep't of Treasury-Internal Revenue Service, No.

3:07CV324-R, 2008 WL 2323872 (W.D.N.C. June 2, 2008); Bodensee

Fund, LLC v. United States Dep't of Treasury, No. 07-MC-0111, 2008

WL 1930967 (E.D. Pa. May 2, 2008); Ironwood Trading, LLC v. United

States, No. 8:07-mc-59-T-30MSS, 2008 WL 817066 (M.D. Fla. Mar. 25,

2008), aff'd, Nero Trading, LLC v. United States, 570 F.3d 1244

(11th Cir. 2009); Good Karma, LLC v. United States, 546 F. Supp. 2d

597 (N.D. Ill. 2008); Sterling Trading, LLC v. United States, 553

F. Supp. 2d. 1152 (C.D. Cal. 2008); Lyons Trading, LLC v. United

States, No. 3:07-mc-13, 2008 WL 361533 (E.D. Tenn. Feb. 8, 2008);

Rook Trading, LLC v. United States, No. 1:07-651 (W.D. Mich. Dec.

19, 2007); Tiberius Trading, LLC v. United States, No. 1:07-718

(W.D. Mich. Dec. 19, 2007).

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HOWARD, Circuit Judge. This case is one of more than a

dozen in federal courts across the country related to an Internal

Revenue Service ("IRS") investigation into possible improper tax

shelters. As in the other cases, the targets of the investigation 1

petitioned the district court to quash administrative summonses

issued by the IRS. Approving a magistrate judge's report and

recommendation, the district court denied the motions to quash and

ordered the summonses enforced. The petitioners timely appealed.

Consistent with every other court to address this issue, we affirm

the district court.2
The IRS issues CIPs to "provid[e] guidance to field examiners 3

and to ensur[e] uniform application of the law" relating to

"complex and significant industry wide issues." Internal Revenue

Service publication, available at http://www.irs.gov/businesses/

article/0,,id=96445,00.html.

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I. Background

The IRS investigation is focused on transactions that

generated losses claimed from writing down the value of "distressed

debt" consisting of consumer accounts receivable obtained from one

or more Brazilian retail stores. According to an IRS Coordinated

Issue Paper ("CIP") issued in April 2007, such "distressed asset 3

and debt" transactions (known as "DAD tax shelters") generate tax

losses that are not allowable as deductions. In a DAD shelter, a

foreign entity that does not pay United States taxes sells

purportedly high-basis, low-value debt (the "distressed debt") to

a United States entity taxed as a partnership in exchange for a

payment that is a very small percentage of the face value of the

debt. The United States entity then contributes the distressed

debt to other entities taxed as partnerships -- partnerships in

which interests are sold to tax shelter participants. The shelter

participants then claim some or all of the face value of the

distressed debt as a loss to offset other earned income. The IRS

contends that U.S. taxpayers participating in the Brazilian debt

DAD shelters claimed losses of approximately $39 million in 2003

and $119 million in 2004. The IRS is investigating the veracity of

these claimed losses by examining the returns filed by the entities
Jetstream was a British Virgin Islands limited company during 4

the time period relevant to this appeal. 

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that pass on the losses to U.S. taxpayers and those filed by the

individual taxpayers.

II. The parties

The appellants are engaged in the business of consumer

receivables management and collection. They partner with creditors

for the servicing and collecting of consumer receivables in a

global industry fueled by increasing levels of consumer debt,

increasing defaults of the receivables, and utilization of thirdparty providers to collect such receivables.

Appellant John E. Rogers, an attorney with an MBA in

international finance, was the driving force behind the appellants'

involvement in the Brazilian debt market. Jetstream Business,

Ltd. ("Jetstream") was Rogers's platform for international 4

investment opportunities. Jetstream is the Tax Matters Partner of

appellants Derringer Trading, LLC ("Derringer") and Knight Trading,

LLC ("Knight"). Rogers, in turn, is the sole shareholder of

appellant Portfolio Properties, Inc. ("Portfolio"), an Illinois

corporation that is the sole shareholder of Jetstream. Appellant

Warwick Trading, LLC ("Warwick"), was formed by Jetstream as a

possible vehicle through which to invest. In 2006, Derringer and

Knight were transferred to appellant Sugarloaf Fund, LLC
The summons regarding Sugarloaf was typical of this first set 5

served on Hartigan. It sought:

1. All documents, including but not limited to engagement

letters, representation letters, agreements, invoices,

billing records, fee allocations, and correspondence

related to any fees for legal, professional, management,

accounting and tax advice and assistance incurred by you

and/or any entity controlled by you in connection with

Sugarloaf Fund, LLC, and/or its activities.

2. All minutes, notes, correspondence, emails, calendar

entries, and other recordings relating to or reflecting

meetings, conferences and telephone conversations in

which Sugarloaf Fund, LLC, and/or its activities was

discussed.

3. All documents showing payments of any funds,

including, but not limited to fees, paid or received by

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("Sugarloaf"), a Delaware company. Rogers is the general manager

of Sugarloaf.

III. The summonses and prior proceedings

In June 2007, the IRS issued a set of administrative

summonses to Massachusetts resident Michael Hartigan ("Hartigan"),

an attorney, directing him to appear before IRS Revenue Agent Larry

Weinger to testify and produce for examination documents and

information relating to Derringer, Knight, Portfolio, Sugarloaf and

Warwick. A few days later, Hartigan received a second summons from

the IRS, directing him to appear before IRS Agent Kimberlee Loren

to testify and produce documents regarding Rogers. The first set

was served on Hartigan because he claimed losses on his joint

income tax return based on his wife's interest in Derringer and

Knight. The second was based on his relationship with Rogers, as 5
any party in connection with Sugarloaf Fund, LLC, and/or

its activities.

The second summons contained forty three specific document 6

requests, broken down into the following categories: 1) materials

related to Rogers's marketing efforts; 2) engagement letters and

documents related to participants' involvement; 3) documents

discussing expected tax benefits; 4) legal or tax opinions; 5)

information about fees paid in connection with the shelters; and 6)

documents related to Rogers's role. 

Even though they were not the summoned parties, the 7

petitioners are permitted to move to quash. See 26 U.S.C. §

7609(b)(2).

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the IRS believed that Hartigan, in addition to receiving fees from

participants, also assisted Rogers in organizing, managing and

selling interests in the various entities.6

The petitioners timely filed a motion to quash the

summonses, claiming that the IRS was engaging in a nationwide

pattern of harassment. The government moved to deny the motion to 7

quash and for enforcement of the summonses. After a hearing on the

petitioners' motion for an evidentiary hearing, the magistrate

judge denied both the motion for a hearing and the motion to quash,

while simultaneously recommending the enforcement of the summonses.

The district court adopted the report and recommendation. This

appeal followed.

IV. Discussion

The IRS has “expansive information-gathering authority”

to determine tax liability under the Internal Revenue Code,

including by issuance of summonses to taxpayers and third-party
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record holders. United States v. Arthur Young & Co., 465 U.S. 805,

816 (1984); 26 U.S.C. § 7602. Taxpayers may petition to quash such

summonses and the IRS may petition to enforce them. 26 U.S.C. §§

7604, 7609. Enforcement proceedings are designed to be summary in

nature. Donaldson v. United States, 400 U.S. 517, 529 (1971). 

"The court's role is to ensure that the IRS is using its broad

authority in good faith and in compliance with the law." United

States v. Gertner, 65 F.3d 963, 966 (1st Cir. 1995).

Regardless of who initiates the action, the court follows

a familiar structured analysis in a summons enforcement proceeding.

Gertner, 65 F.3d at 966. The IRS must first make a prima facie

showing “[1] that the investigation will be conducted pursuant to

a legitimate purpose, [2] that the inquiry may be relevant to the

purpose, [3] that the information sought is not already within the

Commissioner's possession, and [4] that the administrative steps

required by the Code have been followed.” United States v. Powell,

379 U.S. 48, 57-58 (1964). The IRS need only make a “minimal”

showing. See Gertner, 65 F.3d at 966 ("This burden is not taxing,

so to speak."). An affidavit of the investigating agent that the

Powell requirements are satisfied is sufficient to make the prima

facie case. Id.; see also United States v. Dynavac, Inc., 6 F.3d

1407, 1414 (9th Cir. 1993); United States v. Alphin, 809 F.2d 236,

238 (4th Cir. 1987); In re Newton, 718 F.2d 1015, 1019 (11th Cir.

1983); United States v. Will, 671 F.2d 963, 966 (6th Cir. 1982);
-8-

United States v. Kis, 658 F.2d 526, 538 (7th Cir. 1981); United

States v. Garden State Nat'l Bank, 607 F.2d 61, 68 (3d Cir. 1979);

Howa Trading, 2008 WL 2323872 at *4; United States v. Thomas, 254

F. Supp. 2d 174, 180 (D. Me. 2003).

Once the IRS has made this showing, the burden shifts to

the taxpayer to disprove one or more of the Powell requirements, or

to show that enforcement would be “an abuse of process, e.g., that

the summons was issued in bad faith for an improper purpose.”

Sterling Trading, 553 F. Supp. 2d at 1155-56 (C.D. Cal. 2008)

(citing Liberty Fin. Serv. v. United States, 778 F.2d 1390, 1392

(9th Cir. 1985)). The taxpayer's burden is heavy, and he “must

allege specific facts and evidence to support his allegations.”

Id. at 1156. The district court found that the appellants failed

to meet their ultimate burden. After reviewing the ruling on the

motions to quash for abuse of discretion, Bogosian v. Woloohojian

Realty Corp., 323 F.3d 55, 66 (1st Cir. 2003), we affirm. 

A. The prima facie case

The appellants first argue that the district court erred

when it concluded that the sworn declarations from Weigner and

Loren were sufficient to establish the IRS's prima facie case under

Powell.

Weigner's declaration stated that the summonses were

issued for the purpose of investigating the appellants' returns

because they may be involved in potentially abusive DAD tax
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shelters. More specifically, Weinger stated that the IRS

examinations concerned the correctness of partnership returns filed

by Sugarloaf, Warwick, Derringer and Knight for various tax years

between January 1, 2003 and December 31, 2005. The examination

also implicated returns filed by individual participants who

claimed losses through their interests in these entities.

Weinger further stated that Portfolio's S-corporation

return for tax years 2003-2005 was a subject of his examination, as

was Rogers, indirectly, because he was Portfolio's sole

shareholder, and Portfolio's losses flowed directly through to his

individual returns.

Regarding the summonses at issue, Weinger stated that

after following all IRS procedural requirements, the summonses were

issued to Hartigan because he, through his wife (with whom he files

a joint tax return) purchased tax shelters involving several tiers

of LLCs receiving and contributing distressed debt to other LLCs,

transactions appearing similar to the DAD shelters described in the

CIP. Hartigan also promoted the sale of interests in similar LLCs

to others. According to Weinger, Hartigan's wife indirectly owned

between 96 and 98 percent of Derringer, and over 96 percent of

Knight, during the relevant time period. Losses from each entity

were claimed on the Hartigans' joint returns. Weinger also stated

that an investor in and seller of tax shelters, such as Hartigan,

should have documents and information responsive to the summonses,
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and that such documents would provide information to the IRS about

income and expenses, the circumstances surrounding the lossgenerating transactions and their anticipated tax benefits, all of

which would be relevant to the IRS investigation. In addition,

Hartigan would be expected to have information important to the IRS

in making a penalty determination, such as the nature of due

diligence performed by the appellants, and the extent of their

reliance on an advisor. Finally, Weinger stated that while the IRS

had obtained some information from taxpayers and third parties, it

was not in possession of the summoned information.

Agent Loren's declaration indicated that she was assigned

to examine Rogers's role in organizing, managing and selling tax

shelters; his compliance with various IRS registration and list

maintenance requirements and potential penalties for violating

them; and whether he made false or fraudulent statements in

connection with selling and organizing the shelters. The

declaration noted that the forty-three specific document requests

would provide information to the IRS relevant to the Rogers

examination. For example, where Hartigan personally marketed to

participants, he would ordinarily have correspondence addressing

tax implications. Such documents might help determine the legality

of the shelters, the extent of Rogers's involvement and any

liability for penalties. Also, information about fees paid to

Rogers or Hartigan would go toward explaining Rogers's role in
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particular transactions. While Loren noted that the IRS had

obtained copies of documents purportedly prepared by Rogers or

Hartigan, those documents were obtained from third parties.

The district court concluded that the IRS easily met

Powell's prima facie test. Considering the hearty content of the

agents' declarations, and that even "bareboned allegations" can

suffice to support the prima facie showing, cf. Gertner, 65 F.3d at

968, we agree that the IRS met its initial burden.

B. The appellants' response

The appellants advance three theories in support of their

argument that, contrary to the district court's conclusion, they

successfully rebutted the IRS's prima facie case. The first is

that the summoned information is not relevant to a legitimate

purpose. Next, they argue that the summonses themselves were not

issued for a legitimate purpose. And finally, they claim that the

summoned documents are already in the IRS's possession. We discuss

each in turn.

1. Relevance to a legitimate purpose

The appellants' first substantive argument is that the

information sought by the summonses is not relevant to a legitimate

purpose. They set forth three supporting reasons: first, that the

transactions in which they are engaged are different from the DAD

shelter described in the CIP; second, that the IRS improperly
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targeted Hartigan's (and others') motives; and third, that the

summonses were overbroad.

We start our analysis by noting that "the concept of

relevance under § 7602 is broader than that under the Federal Rules

of Evidence." Zugerese Trading LLC v. Internal Revenue Service,

2009 WL 1706583, No. 08-30894 (5th Cir. June 18, 2009) (citing

Arthur Young & Co., 465 U.S. at 813-14 n.11). Moreover, the IRS

may investigate "merely on suspicion that the law is being

violated, or even just because it wants assurance that it is not."

Powell, 379 U.S. at 57 (quoting United States v. Morton Salt Co.,

338 U.S. 632, 642-43 (1950)).

The gist of the appellants' first argument is that the

transactions at issue here are not unlawful DAD shelters. Given

the broad sweep of the IRS's investigative powers, however, such a

determination is beyond the scope of the inquiries undertaken by

the district court and this court in the summons enforcement

context. See Superior Trading, 2008 WL 5192379 at *6, n. 10

(court in summons enforcement proceeding "need not address whether

transactions were lawful"). "The function of the [court] in an

enforcement proceeding is not to test the final merits of the

claimed tax deduction, but to assess within the limits of Powell

whether the IRS issued its summons for a legitimate tax

determination purpose." Howa Trading, 2008 WL 2323872 at *4

(citing United States v. White, 853 F.2d 107, 116 (2nd Cir. 1988)).
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Accordingly, we reject the appellant's argument that the claimed

legality of their transactions provides a basis to quash the

summonses.

The appellants next argue that the motives of Hartigan

and other persons or entities involved in the transactions at issue

are "completely irrelevant" to the IRS's investigation. Again,

given the wide breadth of relevance in the present context, we

disagree. In a broad sense, the IRS is investigating the validity

of the partnerships themselves for purposes of assessing the

validity of the claimed tax losses. Thus, the IRS is permitted to

inquire as to whether the parties "intended to join together as

partners to conduct business activity for a purpose other than tax

avoidance." Adantech LLC v. Comm'r, 331 F.3d 972, 978 (D.C. Cir.

2003).

Next, the appellants' overbreadth argument focuses on the

summonses' inclusion of the term, "all documents," which, they

claim, makes the summonses overbroad as a matter of law. The two

cases upon which they rely, however, do not support this

proposition. Both United States v. Theodore, 479 F.2d 749 (4th

Cir. 1973) and Racca v. United States, 2007 WL 1108872, No. C06-

1822RSM, (W.D. Wash. Apr. 11, 2007), contain fact-specific analyses

that do not necessarily apply beyond their particular

circumstances. Indeed, there are no cases that universally

proscribe the use of "all documents" language. To the contrary, as
Hartigan, the "summoned party" has interposed no objections 8

to the summonses.

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the Fifth Circuit noted in rejecting an overbreadth claim in one of

the many cases involving the same players and issues present here,

a summons is not overbroad if it "describes the requested material

with sufficient particularity to permit the summoned party to

respond adequately." Zugarese Trading, 2009 WL 1706583 at *1.8

Here, the use of the term "all documents" is limited by reference

to particular subject matters. We therefore conclude that the

summonses are not overly broad.

2. Issuance for a legitimate purpose 

The appellants next argue that the IRS did not issue the

summonses for a legitimate purpose. Specifically, they claim that

the IRS intended to use the summonses in order to avoid more

restrictive Tax Court discovery rules, to harass them, and to

improperly extend the statute of limitations applicable to the

examination of tax returns.

By way of background, a notice of deficiency permits an

individual taxpayer to bring a Tax Court proceeding to challenge

the tax liability claimed by the IRS in the notice. 26 U.S.C. §

6213. In the partnership context, a notice of final partnership

administrative adjustment (FPAA) is analogous to a notice of

deficiency. 26 U.S.C. § 6226. Discovery in Tax Court proceedings

is more limited than that permitted under the Federal Rules of
The Derringer FPAA was issued approximately six weeks after 9

the summons and two weeks after the summons return date.

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Civil Procedure. Schneider Interests, L.P. v. Comm'r, 119 T.C. 151

(2002); see also United States v. Admin. Enter. Inc., 46 F.3d 670,

672 (7th Cir. 1995) ("Discovery in Tax Court proceedings is

traditionally informal and noncoercive . . . .").

"Courts look to the timing of a summons relative to the

commencement of [tax court] litigation in order to evaluate

validity in the face of such allegations." Sterling Trading, 553

F. Supp. 2d at 1159-60 (citing PAA Mgmt., Ltd. v. United States,

962 F.2d 212, 219 (2d Cir. 1992)). "Where the summons is issued

before the commencement of judicial proceedings, that summons is

generally not found to undermine the discovery process." Id.

Here, as the district court noted, it is undisputed that the IRS

issued the summonses before issuing the FPAA to Derringer. Thus, 9

"the timing of the summons does not suggest that the IRS intended

the summons as a pre-litigation discovery tool . . . ." Id.

The appellants argue that because the FPAA was a "final"

determination of Derringer's tax liability, the summons could only

have been for illegitimate purposes. This position, however,

overstates the impact of the FPAA. "The FPAA is not 'final' in the

sense that its issuance necessarily obviates the need for further

information, [or] brings the curtain down on the IRS's

administrative or investigative role . . . ." PAA Mgmt., 962 F.2d
Ironwood Trading, supra. 10

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at 219. Against this backdrop, the issuance of the FPAA does not

invalidate the legitimacy of the Derringer summons. 

The appellants also rely on Rogers's version of a

conversation with Weinger in which Weinger allegedly said that the

IRS auditors were "being guided by district counsel who planned to

litigate regardless of the result of the audit and notwithstanding

whether petitioners were able to prove bad business debt through

the audit." The appellants rely on PAA Mgmt. Ltd. v. United

States, No. 91C168, 1992 WL 346314 (N.D. Ill. Nov. 19, 1992), for

the proposition that the motive to use in litigation materials

obtained by summons is evidence of an improper purpose. In PAA

Mgmt, however, the court found that the IRS agent explicitly

admitted that the IRS did not need the summoned materials for its

examination, but rather that it only sought the material to

“protect the government's interests" in Tax Court. 1992 WL 346314

at *5-6. There is no such admission here. Instead, the

declaration in this case states that the information sought in the

Derringer summons "is still necessary" to the determination of the

accuracy of Derringer's returns. And contrary to the appellants'

assertions, Weinger's alleged statement (which was in connection

with a different summons enforcement proceeding ) does not compel 10

an outcome in their favor here, particularly in light of the fact

that in the other proceeding Weinger expressly denied being
The appellants' overarching theory is that the large number 11

of pending legal proceedings is evidence of a nationwide harassment

effort.

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directed by counsel to seek specific documents. Moreover, there is

no prohibition against IRS agents speaking with district counsel

during an examination. Good Karma, LLC, 546 F. Supp. 2d at 604.

Accordingly, we reject the appellants' discovery claim. 

The appellants' claim of harassment is based on two 11

specific claims, neither of which is sufficient to merit relief.

First, they argue that the IRS threatened the imposition of severe

penalties if they did not settle. The IRS does not dispute that it

sought settlement; however, "The mere fact that the IRS attempted

to settle with taxpayers . . . hardly amounts to a 'threat.'"

Sterling Trading, 553 F. Supp. 2d at 1158. Next, the appellants

claim that the IRS threatened one of their attorneys. According to

an affidavit from the attorney, IRS agents believed that the

attorney's responses to document requests were incomplete and told

the attorney that failure to respond could result in a disciplinary

referral. This conduct does not rise to the level of harassment,

either. In the first place, the attorney did not characterize the

agents' communications as "threats," nor have other courts viewed

them as "threats." See, e.g., Superior Trading, 2008 WL 5192379 at

*6 (citing Ironwood Trading, 2008 WL 817006 at *3). Perhaps more

importantly, the alleged threats involved an individual and
The IRS is generally authorized to audit tax returns within 12

three years of their filing. 26 U.S.C. §§ 6501, 6229. 

The limitations period with respect to Derringer and Rogers 13

were tolled by the issuance of an FPAA and deficiency notice,

respectively. 

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partnership entity distinct from any in this case. Accordingly,

the appellants' claim of harassment fails.

We also reject the appellants' argument that the

summonses were issued as a means to improperly extend the

applicable statutes of limitation. As the district court noted, 12

and as the appellants concede, it was the filing of the petition to

quash that tolled the statute, not the issuance of the summonses.

26 U.S.C. § 7609(e)(1). The statute is also tolled if the summoned

party does not comply within six months. 26 U.S.C. § 7609(e)(2).13

In the end, the appellants fail to cite any evidence in support of

their statute of limitations argument.

Based on the foregoing, we affirm the district court's

finding that the summonses were not issued for an improper purpose.

3. Documents already possessed

The appellants' final substantive argument is that the

IRS is already in possession of the summoned documents. They rely

on the fact that Rogers and the appellants' accountant have already

appeared for interviews and produced documents. As previously

noted, however, the IRS is entitled to obtain relevant records from

third parties to compare for accuracy any records obtained from the
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taxpayer. While the appellants claim that "more than one million

pages of documents" have been produced, they do not suggest how

those documents are responsive to the summonses issued to Hartigan.

See Sterling Trading, 553 F. Supp. 2d at 1161 (rejecting identical

argument). Nor do they dispute that Hartigan has not yet provided

testimony, as was requested. The appellants' claim that the IRS is

already in possession of the summoned documents therefore fails.

C. Other arguments

The appellants make two additional arguments, neither of

which require extended discussion. The first is that the district

court should have stricken the IRS's petition to enforce, or deemed

all of the appellants' allegations below admitted, because the IRS

did not file an answer or a motion under Rule 12 or Rule 56 of the

Federal Rules of Civil Procedure, but instead responded to the

petition with its own motion to deny that of the appellants and to

enforce the summonses. We disagree. While the federal rules apply

to these proceedings, "they are not inflexible in this

application," Donaldson, 400 U.S. at 528, since Rule 81(a)(5)

explicitly states that the rules may be limited by the district

court. Moreover, given that the IRS's motion "mirror[ed] a

12(b)(6) motion to dismiss," Cosme v. United States, 708 F. Supp.

45, 48 (E.D.N.Y. 1989), we agree with the Fifth Circuit that the

IRS "sufficiently responded to the petition to quash . . . ."

Zugerese, 2009 WL 1706583 at *2.
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The appellants also claim that the district court erred

in denying them discovery and an evidentiary hearing before ruling

on the dueling motions. Yet as the Supreme Court has held,

"Summons enforcement proceedings should be summary in nature and

discovery should be limited." United States v. Stuart, 489 U.S.

353, 369 (1989). Accordingly, the decision whether to conduct an

evidentiary hearing in a summons enforcement proceeding is within

the district court's discretion. United States v. Tiffany Fine

Arts, 469 U.S. 310, 324 n.7. (1985); Gertner, 65 F.3d at 969.

"There is no hard-and-fast rule compelling an evidentiary hearing,"

Gertner, 65 F.3d at 967, and the "district court may, in

appropriate circumstances, forgo such a hearing and decide the

issues on the existing record." Id. In order to proceed to an

evidentiary hearing, a taxpayer must make a sufficient threshold

showing that there was an improper purpose behind an IRS summons.

Copp v. United States, 968 F.2d 1435, 1438 (1st Cir. 1992). To

make this showing, the taxpayer must do more than allege an

improper purpose; he must introduce evidence to support his

allegations. Id. Here, the district court supportably found that

the appellants failed to make this threshold showing. In so

finding, the district court did not abuse its discretion.

V. Conclusion

The judgment of the district court is affirmed.