FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MORSE STEWART; JEANINE STEWART,  No. 05-36112

Plaintiffs-Appellants, D.C. No.

v.  CV-05-00194-

GMK/DCA UNITED STATES OF AMERICA,

Defendant-Appellee. OPINION 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

Submitted December 6, 2007*

Portland, Oregon

Filed January 15, 2008

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge O’Scannlain

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

541
COUNSEL

Morse and Jeanine Stewart, Vernonia, Oregon, filed briefs

pro se as plaintiffs-appellants. 

Karen G. Gregory, Attorney, Tax Division, United States

Department of Justice, Washington, DC, filed a brief for the

STEWART v. UNITED STATES 543
defendant-appellee; Frank P. Cihlar, Attorney, Tax Division,

United States Department of Justice, Washington, DC, Eileen

J. O’Connor, Assistant Attorney General, Tax Division,

United States Department of Justice, Washington, DC, and

Karin J. Immergut, United States Attorney, Portland, Oregon,

were on the brief. 

OPINION

O’SCANNLAIN, Circuit Judge: 

We are called upon to determine whether a person who is

not identified in an Internal Revenue Service administrative

summons issued to a third party has standing to file a petition

to quash. 

I

Sometime in 2005, the Internal Revenue Service (“IRS”)

commenced an investigation of Morse Stewart’s income tax

liabilities for the tax years 1998 through 2003. In furtherance

of that investigation, Revenue Agent Carla J. Oyala issued

administrative summonses to fifteen banks and mortgage

companies seeking information regarding Morse’s financial

accounts and transactions. Morse’s accounts at these entities

were jointly held with his wife Jeanine Stewart. Three of the

summonses issued by the IRS identified both Morse and Jeanine as subjects of the investigation. The remaining twelve

summonses identified Morse alone. 

On February 8, 2005, Morse and Jeanine filed a pro

se petition in the district court to quash the summonses pursuant to 26 U.S.C. § 7609(b)(2). The government conceded to

quashing the three summonses that identified Jeanine insofar

as they related to her because Jeanine was not a subject of the

IRS’s investigation. The district court then dismissed the

544 STEWART v. UNITED STATES
remainder of the petition insofar as it related to Jeanine, concluding that she lacked standing under § 7609(b)(2) to petition to quash the twelve summonses in which she was not

identified. The district court denied Morse’s petition in its

entirety, concluding that the government had made a prima

facie showing that the summonses were issued in good faith,

which Morse failed to rebut. 

Morse and Jeanine appeal. 

II

[1] We begin with Jeanine’s petition to quash the twelve

summonses which did not identify her. Section 7609(b)(2) of

the Internal Revenue Code (the “Code”) instructs that any

person entitled to notice of an IRS administrative summons’s

issuance to a third party has standing to challenge the validity

of that summons. Specifically, it provides that “any person

who is entitled to notice of a summons under subsection (a)

shall have the right to begin a proceeding to quash such summons . . . in the manner provided in subsection (a)(2).” 26

U.S.C. § 7609(b)(2)(A) (emphasis added). 

[2] Thus, at the statute’s instruction, we turn to § 7609(a)

for the definition of persons entitled to notice. That section

provides as follows:

If any summons to which this section applies

requires the giving of testimony on or relating to, the

production of any portion of records made or kept on

or relating to . . . any person (other than the person

summoned) who is identified in the summons, then

notice of the summons shall be given to any person

so identified within 3 days of the day on which such

service is made, but no later than the 23rd day before

the day fixed in the summons as the day upon which

such records are to be examined. 

STEWART v. UNITED STATES 545
Id. § 7609(a)(1) (emphasis added). This provision expressly

states that only those persons identified in a summons are

entitled to notice of its issuance. Accordingly, under the plain

meaning of § 7609(b)(2), only those persons so identified

have standing to petition to quash. See Vanguard Int’l Mfg.,

Inc. v. United States, 588 F. Supp. 1229, 1232 (S.D. N.Y.

1984) (holding that a corporation not identified in an IRS

summons lacked standing under § 7609(b)(2) to challenge the

summons’s validity even though the summons sought records

relating to a taxpayer who had signatory authority over the

corporation’s bank accounts); Voss v. United States, 573 F.

Supp. 957, 960-61 (D. Colo. 1983) (concluding that a joint

owner of a bank account not identified in an IRS summons

lacked standing under § 7609(b)(2) to challenge the summons’s validity even though it identified her husband, the

other joint owner).

[3] We note that our interpretation accords with that

adopted by the Second Circuit in United States v. First Bank,

737 F.2d 269 (2d Cir. 1984). In that case, the court determined that the plain text of § 7609(a)(1) combined with its

inconclusive legislative history compelled the interpretation

that “a co-owner of a joint bank account who is not identified

in the summons is not entitled to notice when an administrative summons is served on a third-party recordkeeper.” Id. at

271. Recognizing that such an interpretation would deny the

joint owner of a bank account the right to notice of a summons pertaining to that account unless such owner is identified in the summons, the court in First Bank concluded that

“this possibility was not thought by Congress to create a sufficient infringement to warrant the inclusion of additional statutory notice requirements for unidentified persons,” and that

Congress’s decision was “reasonable.” Id. at 274. 

We are persuaded by the Second Circuit’s view. As the

court in First Bank explained, when a taxpayer places her

records in the hands of a third-party recordkeeper, there are

several situations in which the taxpayer’s records may be dis546 STEWART v. UNITED STATES
closed to other parties, such as the recordkeeper’s certified

public accountant or a federal regulatory agency, without

notice to the taxpayer. Id. (quoting United States v. Gottlieb,

712 F.2d 1363, 1369 (11th Cir. 1983)). In light of this reality,

we believe it was reasonable for Congress to limit the statutory right to notice of a summons’s issuance and the statutory

right to petition to quash to those persons identified in the

summons itself. 

[4] The twelve summonses which Jeanine petitions to

quash identify Morse alone. As a consequence, Jeanine was

not entitled to notice of the summonses’ issuance under

§ 7609(a)(1) and, as such, she lacked standing to petition to

quash the summonses under the plain meaning of

§ 7609(b)(2). Accordingly, we conclude that the district court

properly dismissed the petition to quash as it related to Jeanine for lack of jurisdiction. 

III

We next turn to Morse’s petition to quash the summonses

as they related to him. Morse contends that the summonses

are defective and unenforceable because the IRS did not

strictly adhere to the procedures required by the Code for the

issuance of summonses. 

The Code empowers the Commissioner of the IRS to make

“inquiries, determinations, and assessments of all taxes.” 26

U.S.C. § 6201(a). In the exercise of that power, the Code

authorizes the Commissioner to issue summonses ordering

that any person appear, produce documents, or give testimony

relevant to an IRS investigation. Id. § 7602(a). The Supreme

Court has made clear that this summons power must be construed broadly. See United States v. Arthur Young & Co., 465

U.S. 805, 816-17 (1984). Nevertheless, when the IRS summons information relating to a person’s records held by a

third-party recordkeeper, it must comply with specific procedures outlined in the Code. See 26 U.S.C. § 7609(a)(1)-(3). 

STEWART v. UNITED STATES 547
A

[5] In Powell v. United States, 379 U.S. 48 (1964), the

Supreme Court held that when a party petitions to quash an

IRS summons, the IRS must make a prima facie showing that

the summons was issued in good faith. Id. at 57-58. Specifically, the IRS must establish that the summons (1) was issued

pursuant to a “legitimate purpose”; (2) seeks information “relevant” to that purpose; (3) seeks information that is “not

already within the Commissioner’s possession”; and (4) satisfies all “administrative steps required by the Code.” Id. 

[6] As this court explained in Fortney v. United States, 59

F.3d 117 (9th Cir. 1995), the government’s burden under

Powell “is ‘a slight one’ and typically is satisfied by the introduction of a sworn declaration of the revenue agent who

issued the summons that the Powell requirements have been

met.” Id. at 120 (citing United States v. Dynavac, Inc., 6 F.3d

1407, 1414 (9th Cir. 1993); United States v. Gilleran, 992

F.2d 232, 233 (9th Cir. 1993)). 

[7] Morse argues that the government failed to satisfy Powell’s fourth requirement because Revenue Agent Oyala’s

sworn declaration failed to state with particularity which of

the required administrative steps the IRS complied with in

issuing the summonses. Yet Powell contains no such particularity requirement. Agent Oyala’s declaration avers that “all

administrative procedures required by the Internal Revenue

Code for issuance and service of the summons have been followed.” Under our precedent, such an averment is sufficient

to satisfy the government’s slight burden under Powell’s

fourth requirement. See Dynavac, 6 F.3d at 1414 (concluding

that the IRS had met its burden where the investigating agent

stated that he “had adhered to all the requisite administrative

steps”); see also United States v. Kis, 658 F.2d at 526, 536 &

n.28 (7th Cir. 1981) (concluding that an affidavit stipulating

that “the administrative steps required” were followed met the

Powell requirements and that “[n]o more than that is neces548 STEWART v. UNITED STATES
sary to make the prima facie case”). Thus, based on this

record, we conclude that Agent Oyala’s sworn declaration

was sufficient to establish the government’s prima facie case

that the summonses were issued in good faith. 

B

With the IRS’s prima facie case established, the burden

shifts to Morse to rebut the government’s claim. As we have

previously explained, “[o]nce a prima facie case is made a

‘heavy’ burden is placed on the taxpayer to show an ‘abuse

of process’ or ‘the lack of institutional good faith.’ ” Fortney,

59 F.3d at 120 (quoting Dynavac, 6 F.3d at 1414). Despite the

weight of this burden, however, upon “a sufficient showing of

bad faith on the Government’s part, the taxpayer is entitled to

a limited evidentiary hearing.” United States v. Samuels,

Kramer, & Co., 712 F.2d 1342, 1347 (9th Cir. 1983). 

[8] On appeal, Morse offers no evidence in rebuttal to the

government’s prima facie case that the summonses were

issued in good faith. Rather, Morse’s claim focuses exclusively on the alleged insufficiency of Agent Oyala’s averment

that all administrative steps required by the Code had been

complied with. Having determined that this argument is

unavailing, we conclude that the district court did not err in

denying Morse’s petition.

IV

Based on the foregoing, the district court’s decision to dismiss the petition as it relates to Jeanine for lack of jurisdiction

and to deny the petition as it relates to Morse is 

AFFIRMED.

1

1The government’s motion to strike Appellants’ “Informal Written

Argument in Lue [sic] of Oral Argument” is denied as moot. 

STEWART v. UNITED STATES 549