[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________ ________________

No. 12

- 13190

________________________

D.C. Docket No s

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UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus

MICHAEL CLARKE,

As Chief Financial Officer of Beekman Vista, Inc.,

DYNAMO HOLDINGS LIMITED PARTNERSHIP,

Defendants

- Appellan ts.

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UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus

DYNAMO HOLDINGS LIMITED PARTNERSHIP,

Intervenor Plaintiff

- Appellant, Case: 12-13190 Date Filed: 07/25/2014 Page: 1 of 52 MICHAEL CLARKE,

As Chief Financial Officer of Dynamo GP, Inc.,

As General Partner of Dynamo Holdings Limited

Partnership,

Defendant

- Appellant.

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9:11

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UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus

DYNAMO HOLDINGS LIMITED PARTNERSHIP,

Intervenor Plaintiff

- Appellant,

RITA HOLLOWAY,

As Trustee for the 2005 Christine Moog Family

Delaware Dynasty Trust,

Defendant.

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9:11

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- 80460

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UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus

MARC JULIEN,

As Trustee for the 2005 Robert Julien Delaware

Dynasty Trust,

Defendant,

Case: 12-13190 Date Filed: 07/25/2014 Page: 2 of 53 DYNAMO HOLDINGS LIMITED PARTNERSHIP,

Interve nor Defendant

- Appellant.

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UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

versus

ROBERT JULIEN,

Defendant

- Appellant,

DYNAMO HOLDINGS LIMITED PARTNERSHIP,

Intervenor Defendant

- Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(July 25, 2014)

ON REMAND FROM THE

SUPREME COURT OF THE UNITED STATES

Before MARCUS, BLACK and SILER, * Circuit Judges.

PER CURIAM:

The Supreme Court has remanded this case to us to determine whether

Appellants, Dynamo Holding Limited Partnership and several individuals

* Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting

by designation. Case: 12-13190 Date Filed: 07/25/2014 Page: 3 of 54 associated with the company, have pointed to specific facts or circumstances

plausibly raising an inference that the Internal Revenue Service ( the IRS or the

Service ) issued five administrative summonses in bad faith such that Appellants

were entitled to examine an IRS agent regarding the Service’s reasons for issuing

the summonses. United States v. Clarke , No. 13

- 301 a t 6

- 8 (U.S. June 19, 2014).

In remanding, the Supreme Court elaborated on the applicable standard,

stating :

As part of the adversarial process concerning a summons’s validity,

the taxpayer is entitled to examine an IRS agent when he can point to

specific f acts or circumstances plausibly raising an inference of bad

faith. Naked allegations of improper purpose are not enough: The

taxpayer must offer some credible evidence supporting his charge.

But circumstantial evidence can suffice to meet that burden; a fter all,

direct evidence of another person’s bad faith, at this threshold stage,

will rarely if ever be available. And although bare assertion or

conjecture is not enough, neither is a fleshed out case demanded: The

taxpayer need only make a showing of facts that give rise to a

plausible inference of improper motive.

Id. at 6

- 7.

The Supreme Court left to us the task of determining whether Appellants’

evidentiary submissions

— including the affidavits of Michael Clarke, the chief

financial officer of Dy namo GP Inc., and Richard Sapinski, an attorney

representing another party in connection with the IRS’s investigation into

Dynamo’s tax liabilities

— met the applicable standard. The Court also left to us

the task of determining whether the district court “ asked and answered the relevant

Case: 12-13190 Date Filed: 07/25/2014 Page: 4 of 55 question” in orderi ng enforcement of the summonses; that is, “whether the

[Appellants] pointed to specific facts or circumstances plausibly raising an

inference of improper motive.” Id. at 8. We are unable to discern from the district

court’s order whether it asked and answered the relevant question. W e will

therefore give the district court the opportunity in the first instance to apply the

standard articulated by the Supreme Court. Specif ically, the district court should

determine, in light of all of the evidence and the affidavits highlighted by the

Supreme Court, whether Appellants pointed to specific facts or circumstances

plausibly raising an inference of improper purpose

.

On remand, the district court should also consider in the first instance

whether the improper purposes alleged by Appellants

, i.e., retali ating for

Dynamo’s refusal to extend a statute of limitations deadline for a third time and

seeking enforcement to avoid the Tax Court’s discovery rules, are improper as a

matter of law. 1

This case is remand ed to the district court for further proceedings consistent

with this opinion and the opinion of the Supreme Court.

REMANDED.

1 We take no position regarding the nature of any further proceedings in the district court

and leave to it the question whether to take additional evidence, hold a hearing, or allow the

parties an opportunity for additional argument.

Case: 12-13190 Date Filed: 07/25/2014 Page: 5 of 5