this action. The revenue agent further states that "[{iJt is
necessary to obtain the testimony and to examine the books,
papers, records or other data sought by the summons in order to
determine the correct federal income tax liabilities of

Michael D. Richmond for calendar years ending December 31, 1997
and December 31, 1998." He also states that "[d]Juring the course
of my examination I learned that Eagle Enterprises, Ltd. has been
used as a conduit for income earned by Michael D. Richmond, and
that Eagle Enterprises, Ltd. maintains an account at NLSB Bank."

The government has satisfied its burden of making a prima

facie showing that the Powell factors are satisfied. Therefore,
the burden is on petitioner to show that one of the factors is
not satisfied, the summons is sought in bad faith, or some other
ground exists for denying enforcement.

Petitioner's first contention is that the summons is
improper because of the use of Form 2039. He contends that this
form is for a summons served in a foreign country. The basis for
this contention is a photocopy of a Form 2039 with a caption on
the top of the page referring to "Obtaining Evidence from Abroad
Administratively." The photocopy, assuming it is an accurate
copy, appears to be from an outdated version of the Internal

Revenue Manual.‘ Moreover, it appears to show modifications to

‘The photocopy is blurred, but, as indicated in the upper
right corner, the page appears to be last revised on June 15,
1968 (6-15-6 is clear; the last digit (apparently an 8) is
partially cut off). As indicated in the bottom right corner, the
version of Form 3029 appears to have been last revised in May


=

IT IS THEREFORE ORDERED that Michael Richmond's petition
to quash summons [1-1] is denied. The government's motion to
deny petition to quash [5-1] and to enforce IRS summons {5-2] is
granted. The Clerk of the Court is directed to enter judgment in
favor of the government and against Michael Richmond (a) denying
Richmond's petition to quash summons and (b) enforcing the
summons issued to NLSB Bank on March 16, 2001 in the matter of
the tax liability of Michael D. Richmond and Candace L. Richmond.
If petitioner wishes to appeal this order, he must file a Notice
of Appeal to the United States Court of Appeals for the Seventh
Circuit with the Clerk of the Court, United States District Court
for the Northern District of Illinois, 219 South Dearborn Street,
20th Floor, Chicago, Illinois 60604, within sixty (60) days of

the entry of the judgment in this case.

ENTER:
,
(bani tA ML pf
fe
UNITED STATES DISTRICT JUDGE
DATED: JULY ( ( , 2001


The summoris at issue in this case was served on NLSB Bank
in March 2001 and requests information regarding the tax
liability of Michael and Candace Richmond for the calendar years
1997 and 1998. Identified bank records of Eagle Enterprises,
Ltd. were requested, including but not limited to a specifically
identified account. The summons was issued by an IRS revenue
agent and is also signed by his supervisor. The revenue agent
provides a declaration’ stating that he is conducting an
investigation to determine the correct tax liability of Michael
Richmond for calendar years 1997 and 1998? and that there has
been no Justice Department referral.* In the declaration, the
revenue agent states that he is a commissioned revenue agent and
that it is his immediate supervisor's signature approving the
summons. He states that he has complied with all procedures and
that the documents and information requested were not already in
his possession, except that NLSB Bank provided its response which

remains unexamined in a sealed envelope pending the outcome of

*See 28 U.S.C. § 1746.

*The affidavit refers to Michael Richmond only, whereas
the summons also refers to Candace Richmond, presumably Michael's
wife. No objection is raised regarding this difference. In any
event, Michael would have no standing to object on Candace's
behalf. See Morgan v. United States, 679 F. Supp. 1007, 1008
(D. Colo. 1987); United States v. Van Horne, 445 F. Supp. 360,
361 (D. Neb. 1978). Also, construed literally, any joint
liability is Michael's liability as well and the present
declaration is likely limited to Michael because he alone
petitioned to quash the summons.

5Enforcement of an IRS summons is prohibited when a
Justice Department referral (generally, a criminal investigation)
is pending. See 26 U.S.C. § 7602(d).


Form 2039 that were to be made when obtaining evidence from
abroad. It does not state that Form 2039 is limited to being
used abroad. But, regardless of what petitioner's document
actually is, the current version of the Internal Revenue Manual
provides that Form 2039 is the proper form to use. See I.R.M.

Summons Handbook §$ 1.1(2), 1.5, 2.2(1). See_also McCurry v.

United States, 1994 WL 762414 *2 (E.D. Cal. Dec. 16, 1994).
Petitioner's contention that the summons should be quashed
pecause it only applies to service abroad is without merit.

See Black, 2001 WL 685911 at *2; Vanderhoof v. Commissioner,

73 F. Supp. 2d 1165, 1169 (E.D. Cal. 1999).

Petitioner's next contention is that the revenue agent
and his manager were not delegated the authority to issue, serve,
and approve the summons. Revenue agents and their supervisors,
however, have been delegated such authority. See IRS Delegation
Order No. 4 (Rev. 22); I.R.M. Summons Handbook §§ 1.3.3, 1.3.47

Black, 2001 WL 685911 at *3; Vanderhoof, 73 F. Supp. 2d at

1170-71. In his reply, petitioner contends that the supervisor
has never shown petitioner his credentials proving that he is the
appropriate person to sign the summons. The declaration of the
revenue agent, however, establishes that the person who signed
the summons is his supervisor. Petitioner does not allege any
specific facts rebutting the accuracy of that representation. on

the present papers, no further inquiry of the issue is necessary.

1947, 1957, ox 1967. The Form 2039 actually served in the case
sub judice indicates it was last revised in September 1999.


§ inate Order Form (06/97)

sol

United States District Court, Northern District of Illinois

Name of Assigned Judge LIAM Sitting Judge if Other
or Magistrate Judge WIL! T. HART than Assigned Judge
CASE NUMBER 01 C 2127 DATE JULY { | , 2001
CASE MICHAEL D. RICHMOND v. UNITED STATES OF AMERICA
TITLE
{In the following box (a) indicate the party filing the motion, .g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the
MOTION: nature of the motion being presented.)
DOCKET ENTRY:
(l) oO Filed motion of [ use listing in “Motion” box above.)
(2) Oo Brief in support of motion due
(3) a Answer brief to motion due. . Reply to answer brief due :
4 Oo Ruling/Hearing on set for at
io) o Status hearing[held/continued to} [set for/re-set for] on set for at
© o Pretrial conference[held/continued to] [set for/re-set for] on set for at .
(7) oOo Trial[set for/re-set for] on. at
(8) im) [Bench/Jury trial] [Hearing] held/continued to at
(O} im} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CO BRCP4¢n) [General Rule 21 O FRCP41(a)(1) 1 FRCP41(a)(2).
(10) Wi[Other docket entry] Michael Richmond's petition to quash summons [1-1] is denied. Government's motion to deny
petition [5-1] and to enforce IRS summons [5-2] is granted. The Clerk of the Court is directed to enter judgment in
favor of the government and against Michael Richmond (a) denying Richmond's petition to quash summons and (b)
enforcing the summons issued to NLSB Bank on March 16, 2001 in the matter of the tax liability of Michael D.
Richmond and Candace L. Richmond. If petitioner wishes to appeal this order, he must file a Notice of Appeal to the
U.S. Court of Appeals for the Seventh Circuit with the Clerk of the Court, U.S. District Court for the Northern District
of Illinois, 219 S. Dearborn St., 20th Floor, Chicago, IL 60604, within 60 days of the entry of the judgment in this gage.
(11) a [For further detail see order attached to the original minute order.]
No notices required, advised in open court.
3
No notices required.
UY | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices. \2
x Mail AO 450 form. MLEG NG
Copy to judge/magistrate judge.
OL JUL 1 PH 5: 50 JULY 11, 2001
courtroom date mailed notice
cw deputy’s ing
initials
Date/time received in
central Clerk’s Office mailing initnts



Petitioner asserts that the authority to issue the
summons is limited to alcohol, tobacco, and firearms enforcement
or gasoline and other excise taxes. That contention is without
merit. Section 7602 authorizes a summons related to income

taxes. 26 U.S.C. § 7602(a); Black, 2001 WL 685911 at *3;

Vanderhoof, 73 F. Supp. 2d at 1170.

Petitioner contends that 26 U.S.C. § 6001 requires that
he be specifically notified of the need to keep records and that,
absent such notice, a summons may not be enforced pursuant to
§ 7602. That contention is without merit. Romanow v. United
States, 1998 WL 419729 *2 (W.D. Mich. April 7, 1998); Erickson v.
Commissioner, 1996 WL 454931 *8-9 (D. Minn. Aug. 7, 1996), aff'd
by unpublished order, 117 F.2d 1422 (8th Cir. 1997); McCurry,
1994 WL 762414 at *2.

Citing 26 U.S.C. § 7601, petitioner also contends that
the Secretary of Treasury must first determine his tax liability
(or possibly all persons in the district who are liable for
taxes) before a summons may be issued related to petitioner's

taxes. This contention is without merit. See Black, 2001 WL

685911 at *3; Umlauf v. United States, 1999 WL 501011 *1 (W.D.

Mich. May 28, 1999).

The government has satisfied its burden of making a prima
facie showing that the summons should be enforced. Petitioner
has not satisfied his burden of showing that it should not.
Therefore, petitioner's petition will be denied and the

government's motion will be granted.


seven

ene

IN THE UNITED STATES DISTRICT COURT ve

FOR THE NORTHERN DISTRICT OF ILLINOIS 42 2001
EASTERN DIVISION JU

MICHAEL D. RICHMOND, )
Petitioner, }

Vv. ; No. 01 C 2127
UNITED STATES OF AMERICA, }

Respondent.

MEMORANDUM OPINION AND ORDER

Pro _ se petitioner Michael Richmond filed this action to

quash an Internal Revenue Service ("IRS") subpoena. The
government has moved to enforce the subpoena. For the reasons
stated below, the subpoena will be enforced.

Section 7602 (a) of the Internal Revenue Code provides:

(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 or the
liability at law or in equity of any transferee
or fiduciary of any person in respect of any
internal revenue tax, or collecting any such
liability, the Secretary is authorized-—

(1) To examine any books, papers, records,
or other data which may be relevant or material
to such inquiry;

(2) To summon the person liable for tax or
required to perform the act, or any officer or
employee of such person, or any person having
possession, custody, or care of books of account
containing entries relating to the business of
the person liable for tax or required to perform
the act, or any other person the Secretary may
deem proper, to appear before the Secretary ata


time and place named in the summons and to
produce such books, papers, records, or other
data, and to give such testimony, under oath, as
may be relevant or material to such inquiry; and

(3) To take such testimony of the person
concerned, under oath, as may be relevant or
material to such inquiry.

26 U.S.C. § 7602(a). A district court may compel compliance with
an IRS summons. Id. § 7604.

. . To obtain enforcement of a summons,
the government must show that: (1) the
investigation is being conducted for a legitimate
purpose; (2) the information sought is relevant
to the investigation and (3) not already in the
government's possession; and (4) the
administrative steps required by the Internal
Revenue Code have been followed. See United
States v. Powell, 379 U.S. 48, 57-58 (1964). The
Powell requirements impose only a "minimal
burden" on the agency. Miller [v. United
States], 150 F.3d [770,] 772 [(7th Cir. 1998)].
They can usually be satisfied by an affidavit
stating that the government has met them. Id.;
see United States v. Dynavac, Inc., 6 F.3d 1407,
1414 (9th Cir. 1993). Once the government meets
this prima facie burden, the taxpayer faces a
"theavy burden' to either present facts to
disprove one of the Powell factors, or to show
that the IRS issued the summons in bad faith."
Miller, 150 F.3d at 772 (internal citations
omitted); see also United States v. LaSalle
National Bank, 437 U.S. 298, 316 (1978). The
taxpayer can rebut the government's prima facie
case only by alleging “specific facts" in
rebuttal. Crystal v. United States, 172 F.3d
1141, 1144 (9th Cir. 1999); United States v. Kis,
658 F.2d 526, 543 (7th Cir. 1981).

United States v. Insurance Consultants of Knox, Inc., 187 F.3d

755, 759 (7th Cir. 1999), cert. denied, 528 U.S. 1081 (2000).

See also Black v. United States, 2001 WL 685911 *1-2 (N.D. Ill.

June 13, 2001); Adams v. IRS, 1999 WL 1001584 *3-4 (N.D. Ind.

Sept. 29, 1999).