* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

February 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

INTERNAL REVENUE SERVICE,

Petitioner-Appellee,

v.

PAUL LANOIE, JR.,

Respondent-Appellant.

No. 09-2030

(D.C. No. 1:08-MC-00030-MV)

(D. N.M.)

ORDER AND JUDGMENT*

Before KELLY, BALDOCK, and TYMKOVICH, Circuit Judges.

Appellant Paul Lanoie, Jr., claims to appeal two oral orders of the district

court: the first enforcing an IRS summons and the second finding him in civil

contempt. Because no enforcement order was entered and prejudgment civil

contempt findings are not reviewable on interlocutory appeal, we dismiss for lack

of jurisdiction.

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In United States v. Riewe, 676 F.2d 418, 420-21 (10th Cir. 1982), we

described the process followed by the IRS to enforce an administrative summons. 

If a taxpayer does not comply with the administrative summons, the IRS can

(1) “seek an order of contempt from the district court [under] I.R.C. § 7604(b)”;

(2) “criminally prosecute the witness [under] I.R.C. § 7210”; or (3) “ask the

district court to enforce the summons [under I.R.C.] §§ 7402(b) [&] 7604[.]” Id.

at 420. Here, the IRS chose the third option, filing a “Petition to Enforce IRS

Summons” with the district court. Admin. R., Vol. 1 at 3. Generally, the district

court will then enter an order requiring the taxpayer to show cause why the

summons should not be enforced, see Riewe, 676 F.2d at 420, and the order in this

case was entered on August 12, 2009, ordering Mr. Lanoie to appear at a hearing

on January 22, 2009, Admin. R., Vol. 1 at 42.

In the normal course of events, the taxpayer then appears at the hearing and

challenges enforcement of the summons. If he loses, the court orders the

summons enforced and the taxpayer may appeal the enforcement order to this

court. If we affirm, or there is no appeal, the taxpayer must comply or the district

court will enter a second show-cause order, this time requiring the taxpayer to

show cause why he or she failed to comply with the enforcement order. A failure

to show such cause justifies the entry of a civil contempt order. See Riewe,

676 F.2d at 421. If the court enters such an order and imposes a sanction, that

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post-judgment contempt order may be appealed. See United States v. Gonzales,

531 F.3d 1198, 1202 (10th Cir. 2008).

The present case, however, did not follow the normal course of events. A

week before Mr. Lanoie was scheduled to appear at the enforcement hearing he

met with the IRS but, citing his Fifth Amendment rights, still refused to answer a

number of questions. He then filed a motion to dismiss the IRS petition, arguing

that it was moot in light of his full compliance with the summons. At the

subsequent enforcement hearing, the court and the parties, possibly confused by

the pre-hearing meeting with the IRS and dismissal motion, acted as if an

enforcement order had already been entered. For example, the district court

mistakenly stated that “[t]he Order to Show Cause requested that [Mr. Lanoie]

appear to produce the records [and] show cause why [he] shouldn’t comply with

the IRS subpoena.” Admin. R., Vol. 2 at 5. Similarly, government counsel

stated: “Your Honor, in accordance with your Order to Show Cause, Mr. Lanoie

was told and informed to appear before [IRS officer] Chavez and provide

information and certain documents that were requested in the Petition for

Enforcement and the Summons.” Id. at 6. Counsel further assured the court that,

because Mr. Lanoie did not give full information, he was “in violation of the

Order to Show Cause.” Id. at 7. The court informed Mr. Lanoie that he did not

have a valid Fifth Amendment right to not answer the questions at issue and that

he would be arrested for civil contempt if he continued to refuse to answer the

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questions. Id. at 7-10. Mr. Lanoie continued to refuse and was taken into

custody. Id. He was released the same day, however, and ordered to contact the

IRS officer in question within seven days to provide the information sought in the

administrative summons. Id., Vol. 1 at 53. He filed the instant appeal instead of

complying with the release order.

And that appeal must be dismissed. The jurisdictional defect arises from

the fact that the district court never entered a judgment enforcing the summons. 

Contrary to the description of government counsel at the hearing, the initial show

cause order did not order Mr. Lanoie to produce anything. It merely ordered him

to appear and present his argument as to why he should not be judicially required

to produce the sought-after information, which he did. Although it is apparent

that the court did not believe Mr. Lanoie’s arguments for non-compliance, it

nevertheless failed to enter a final summons enforcement order that could have

been appealed.

Instead, the district court, apparently thinking an enforcement order had

already been entered, and having been assured by government counsel that its

previous order required Mr. Lanoie to provide information, found Mr. Lanoie in

civil contempt and briefly took him into custody. That oral order is not

appealable because, since there has been no summons enforcement order, it is a

prejudgment finding of civil contempt which is not reviewable on interlocutory

appeal. See Gonzales, 531 F.3d at 1202.

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The government’s motion to dismiss is GRANTED and Mr. Lanoie’s appeal

is DISMISSED for lack of jurisdiction.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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