1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

)

WILLIAM R. JOHNSON, )

)

Petitioner, )

)

v. ) Misc. Action No. 05-31 Erie

)

UNITED STATES OF AMERICA and )

INTERNAL REVENUE SERVICE, )

)

Respondents. )

MEMORANDUM OPINION

On September 30, 2005, Internal Revenue Service (“IRS”) Agent Donna Lavelle, issued

an administrative summons to Northwest Savings Bank, in Warren, Pennsylvania, for records of

accounts in the names of the William R. Johnson, Capital Consultants, Inc., Capital Consultants

Company, Westland Equities and Pristine Management Group. See Petition Ex. 1. On October

19, 2005, Petitioner, William R. Johnson, filed a Petition pursuant to 26 U.S.C. § 7609(b)

seeking to quash the summons. Respondents, the United States of America and the IRS, move to

dismiss the Petition for failure to state a claim.

The IRS has been granted the authority to issue an IRS administrative summons 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 or collecting any such

liability. 26 U.S.C. § 7602(a). In order to accomplish this purpose, the IRS may summon third

party record keepers to appear and produce documents as may be relevant or material to such

inquiry. 26 U.S.C. § 7602(a)(2). Pursuant to § 7609(b), a taxpayer may bring an action in

federal court to quash an IRS summons issued to a third party record keeper. 

Ordinarily, when a taxpayer moves to quash a third party summons, the government

moves simultaneously to enforce compliance with the summons. 26 U.S.C. § 7609(b)(2)(A). In

order to establish a prima facie case for enforcement, the government must show: (1) the

summons was issued for a legitimate purpose; (2) the inquiry may be relevant for that purpose;

(3) the information sought is not already within the government’s possession; and (4) the

administrative steps required by the IRS for issuance and service of the summons have been

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followed. See United States v. Powell, 379 U.S. 48, 57-58 (1964). Once the government

establishes a prima facie case, the petitioner must show sufficient facts to establish a defense to

the summons. Cosme v. Internal Revenue Service, 708 F. Supp. 45, 48 (E.D.N.Y. 1989). 

However, the government is not required to move to enforce the summons. Instead, the

government may move to dismiss the petition to quash and rely on third party compliance with

the summons. Hogan v. United States, 873 F. Supp. 80, 82 (S.D.Ohio 1994); Cosme, 708 F.

Supp. at 48; Jungles v. United States, 634 F. Supp. 585, 586 (N.D.Ill. 1986); Domestic Executive

Leasing Services, LLC. v. United States 2005 WL 1155161 at *1-2 (D.Nev. 2005). When the

government moves to dismiss the petition, such a motion “mirrors a 12(b)(6) motion to dismiss

for failure to state a claim.” Cosme, 708 F. Supp. at 48. Therefore, the government is not

required to establish a prima facie case as set forth in United States v. Powell, 379 U.S. 48, 57-58

(1964). Knauss v. United States, 28 F. Supp. 2d 1252, 1254 (S.D.Fla. 1998). Rather, “the

burden shifts immediately to the petitioner to establish a valid defense to the summons.” Wilde

v. United States, 385 F. Supp. 2d 966, 968 (D.Az. 2005) (quoting Cosme, 708 F. Supp. at 48);

Knauss, 28 F. Supp. 2d at 1254. We therefore examine Petitioner’s Petition pursuant to the

standard set forth in Rule 12(b)(6) of the Federal Rules of Civil Procedure. 

For the purposes of a motion to dismiss for failure to state a claim upon which relief can

be granted under Rule 12(b)(6), this Court accepts as true all well-pleaded factual allegations in

the complaint, and construes the complaint in a light most favorable to the plaintiff and

determines whether “under any reasonable reading of the pleadings, the plaintiff may be entitled

to relief.” Colburn v. Upper Darby Township, 838 F. 2d 663, 665-66 (3rd Cir. 1988), cert.

denied, 489 U.S. 1065 (1989) (citations omitted). The court, however, need not accept as true

legal conclusions or unwarranted factual inferences. Conley v. Gibson, 355 U.S. 41, 45-46

(1957). The proper inquiry is “whether relief could be granted ... ‘under any set of facts that

could be proved consistent with the allegations.’” Gasoline Sales, Inc. v. Aero Oil Co., 39 F.3d

70, 71 (3rd Cir. 1994) (quoting National Organization for Women, Inc. v. Scheidler, 510 U.S.

249, 256 (1994)). If no cause of action can be identified, dismissal is proper.

Petitioner raises several arguments in support of his request that the summons be

quashed. He first contends that the summons is overbroad and infringes upon his constitutional

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rights. We disagree. Section 7602(a) grants the IRS broad and expansive authority to gather

information when conducting tax investigations. United States v. Bisceglia, 420 U.S. 141, 149

(1975). In light of this broad statutory authority to investigate, we are of the opinion that the

material being sought is potentially relevant to Petitioner’s tax liabilities. Moreover, we reject

Petitioner’s suggestion that the agent be required to “submit an affidavit to support a position of

the substantial existence of probable cause.” See Petition p. 4. The IRS’s power to investigate is

not limited to situations where there is probable cause. Bisceglia, 420 U.S. at 145; Powell, 379

U.S. at 50 (the government need make no showing of probable cause to suspect fraud). 

Finally, the Supreme Court has rejected Fourth Amendment and/or Fifth Amendment

challenges to summons’ issued to third parties. In United States v. Miller, 425 U.S. 435 (1976),

the respondent argued that a subpoena served on his bank was the equivalent of a search and

seizure of his ‘private papers’ and therefore violated the Fourth Amendment. Id. at 442. The

Court rejected this position, finding that there was no legitimate expectation of privacy

concerning information kept in bank records. Id. Consequently, no Fourth Amendment rights of

the depositor were implicated by the issuance of a summons to a third party to obtain records of

the depositor. Id. at 444. Likewise, in Fisher v. United States, 425 U.S. 391, 408 (1976), the

Court held that a summons served on a third party record keeper to produce papers prepared in

connection with its business transactions with a taxpayer under investigation did not rise to the

level of testimony within the protection of the Fifth Amendment. 

Petitioner next argues that the summons is defective since neither the signature of the

agent nor her manager “attests that the document was made under penalties of perjury.” See

Petition p. 4. He claims that pursuant to § 26 U.S.C. § 6065 such attestation is required. This

section, entitled “Verification of returns”, states, in relevant part: “any return, declaration,

statement or other document required to be made under any provision of the internal revenue

laws or regulations shall contain or be verified by a written declaration that it is made under the

penalties of perjury.” 26 U.S.C. § 6065. Petitioner suggests that the term “other document”

includes a summons issued by the IRS. 

The statute only requires taxpayers filing tax returns or other documents to do so under

penalty of perjury. Vaira v. Commissioner of Internal Revenue, 444 F.2d 770, 777 (3rd Cir.

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1971). It does not apply to notices issued by the IRS. Kaetz v. Internal Revenue Service, 2002

WL 1772623 at *2 (M.D.Pa. 2002); Cermak v. United States, 116 F.3d 1482, 1997 WL 312261

at *2 (7th Cir. 1997) (unreported) (“The phrase ‘required to be made’ limits the applicability of §

6065 to documents that must be filed with the IRS, and not documents issued by the IRS.”);

Nordbrock v. United States, 173 F. Supp. 2d 959, 968 (D.Az. 2001) (§ 6065 applies to verifying

tax returns); Morelli v. Alexander, 920 F. Supp. 556, 558 (S.D.N.Y. 1996) (provision does not

apply to notices issued by IRS agents). We therefore find no merit to this argument.

Finally, Petitioner claims that the summons did not comply with the provisions of the

Right to Financial Privacy Act, 12 U.S.C. §§ 3401-22. However, the terms of the Act (which

Petitioner concedes), states that “[n]othing in this chapter prohibits the disclosure of financial

records in accordance with procedures authorized by Title 26.” 26 U.S.C. § 3412(c). Petitioner

contends that because the IRS failed to comply with the verification requirement set forth in 26

U.S.C. § 6065, the summons was not made in accordance with the proper procedures. Since we

have rejected Petitioner’s challenge with respect to the verification requirement, this argument

provides Petitioner no relief. 

In summary, Petitioner has failed to establish a valid defense to the summons. 

Accordingly, we shall grant the Respondent’s motion to dismiss, and deny Petitioner’s Petition to

Quash. An appropriate Order follows. 

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5

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA 

)

WILLIAM R. JOHNSON, )

)

Petitioner, )

)

v. ) Misc. Action No. 05-31 Erie

)

UNITED STATES OF AMERICA and )

INTERNAL REVENUE SERVICE, )

)

Respondents. )

ORDER

AND NOW, this 2nd day of December, 2005, and for the reasons set forth in the

accompanying Memorandum Opinion, 

IT IS HEREBY ORDERED that Respondents’ Motion to Dismiss Petition to Quash

Summons [Doc. No. 4] is GRANTED. IT IS FURTHER ORDERED that Petitioner’s Petition to

Quash Internal Revenue Service Third Party Summons [Doc. No. 1] is DENIED, and the action

is DISMISSED with prejudice. The clerk is directed to mark the case closed.

s/ Sean J. McLaughlin

United States District Judge

cc: All parties of record. 

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