Joseph A. DiRuzzo, III, Esq., CPA (JD0300) 

Law Office of Marjorie Roberts, P.C. 

PO Box 6347 

St. Thomas, VI 00804 

TEL: 340.776.7235 

FAX: 340.776.7951 

joe@marjorierobertspc.com 

Attorney for Petitioner 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

TRENTON VICINAGE 

STUART I. MEYERS, : 

 : 

 Petitioner, : 

 : 

v. : 

 : Case No. ______________________ 

UNITED STATES OF AMERICA, : 

 : 

 Respondent. : 

____________________________________: 

PETITION TO QUASH IRS THIRD-PARTY SUMMONS 

Petitioner Stuart I. Meyers, through undersigned counsel, respectfully petitions this Court 

to quash the improper and invalid administrative summons issued by the Internal Revenue 

Service to American Express Company. In support thereof, Petitioner states as follows: 

JURISDICTION AND VENUE 

 1. On or about July 25, 2010, Internal Revenue Agent Janet Sanchez (“Agent 

Sanchez”) issued an Administrative Summons (the “Summons”) directed to American Express 

Company for the production of documents for the Petitioner under the purported 26 U.S.C. 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 1 of 9 PageID: 1
2

§7602 (I.R.C. §7602). A true and correct copy of the Summons, as delivered to counsel for 

Petitioner, is attached as Exhibit 1. 

 2. 26 U.S.C. §7609(h) confers jurisdiction upon the District Court for the district in 

which the person to whom an administrative summons issued by the IRS is directed, resides, or 

is found to hear and determine any proceeding to quash the Summons. 

 3. Notwithstanding that the IRS sent its Summons to American Express Company – 

General Councils [sic] Office – Amex Company at World Financial Center, Amex Tower C 200 

Vesey Street, New York, NY 10285, upon information and belief, American Express is a 

financial institution with locations throughout New Jersey, including a branch office located at 

10 Nassau Street, Princeton, NJ 08542-4510, and 800 Highway 71, Sea Girt, NJ 08750-2800. A 

physical presence, including a branch office of a summoned party, is sufficient for that party to 

be considered “found” within this district. See, e.g., Pilchesky v. United States, 2008 U.S. Dist. 

LEXIS 75170, at *4 - *72008-2 U.S. Tax Cas. (CCH) P 50, 629 (M.D. Pa. Sept. 29, 2008); 

Hopkins v. IRS, Civ. No. 07-262, 2008 U.S. Dist. LEXIS 45510, *10 (D.N.M. March 28, 2008); 

Cayman Nat’l Bank, Ltd. v. United States, No. 8:06-mc-50-T-24 MAP, 2007 U.S. Dist. LEXIS 

13005, *9 (M.D. Fla. Feb. 26, 2008); Williams v. United States, No. 1:05-mc-6, 2005 U.S. Dist. 

LEXIS 25673 (E.D. Tenn. July 29, 2005); Oldham v. United States, Civil No. 01-1410-HA, 2002 

U.S. Dist. LEXIS 9346, *2 (D. Or. March 21, 2002). 

4. This Court also has jurisdiction under 28 U.S.C. § 1340 which confers upon this 

Court “original jurisdiction of any civil action arising under any Act of Congress providing for 

internal revenue, or revenue from imports or tonnage except matters within the jurisdiction of the 

Court of International Trade.” 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 2 of 9 PageID: 2
3

THE PARTIES 

 5. Petitioner Stuart I. Meyers is a citizen of the United States whose mailing address 

is 2121 Ponce de Leon Blvd., Coral Gables, Florida 33134. 

 6. Respondent United States of America, Internal Revenue Service (“IRS”) of the 

Department of the Treasury is a federal government entity with agencies and offices throughout 

the United States, including an office located on the 8th Floor at 51 SW 1st Avenue, Miami, 

Florida 33130. 

FACTUAL AND LEGAL BASIS FOR QUASHING THE SUMMONS 

 7. The Summons directed third-party American Express Company to produce all 

“DOCUMENTS” and records in its possession or under its control relating to any and all 

accounts maintained under the name “Stuart I. Meyers” bearing a social security number ending 

with 4245 “for the period from January 1, 2002 through December 31, 2004” including, but not 

limited to, all signature card, account applications, and all other DOCUMENTS and records of 

charges and repayments into the accounts, including copies of all payment checks deposited by 

American Express; all debit and credit advices; all memoranda, telegrams and telexes; all 

applications, authorizations and notifications; all underlying wire transfer instruction 

DOCUMENTS and records, whether related to incoming or outgoing transactions; and all other 

DOCUMENTS and records which in any manner evidence the transfer of any funds into or out 

of the accounts in amounts greater than $499.99; all applications, requests, authorizations, 

notifications, and other DOCUMENTS and records prepared by American Express or the 

account holders including, but not limited to, all DOCUMENTS and records maintained in any 

file for the accounts or account holder by all Account Executives assigned to the accounts at any 

time from the time the accounts were opened through December 31, 2004, etc. 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 3 of 9 PageID: 3
4

 8. The IRS must at all times use the summons authority in good faith pursuit of a 

congressionally authorized purpose. The IRS has the burden of showing that its investigation is 

pursuant to a legitimate purpose and that the information sought is relevant and material to such 

legitimate purpose. 

 9. Upon information and belief, the IRS is using its summons powers in a manner 

inconsistent with good faith pursuit of a congressionally authorized purpose. 

 10. When enforcement of an IRS summons is challenged, the government must show 

(i) that the summons was issued for a proper purpose; (ii) that the information sought may be 

relevant to that purpose; (iii) that the information sought is not already in possession of the IRS; 

and, (iv) that the government has complied with the administrative steps required by law with 

respect to the issuance and service of a summons. Powell v. United States, 379 U.S. 48, 57-58 

(1964).

11. If the government satisfies its prima facie burden, the taxpayer retains the right to 

challenge the IRS’ summons by disproving one or more of the Powell requirements or by 

demonstrating that enforcement of the summons will result in abuse of the Court’s process. See 

United States v. Rockwell Int’l, 897 F.2d 1255, 1262 (3d Cir. 1990); see also Wheeler v. United 

States, 459 F.Supp.2d 399, 402 (W.D. Pa. 2006). 

 12. The Summons is invalid and should be quashed because it fails at least two of the 

four criteria under Powell v. United States, 379 U.S. 48 (1964), for enforcement of an 

administrative summons issued by the Internal Revenue Service. 

 13. First, the Summons should be quashed because it was issued for an invalid 

purpose. The IRS has audited Petitioner for the tax years ending December 31, 2002, 2003 and 

2004. As bona fide resident of the U.S. Virgin Islands within the meaning of 26 U.S.C. § 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 4 of 9 PageID: 4
5

932(c)(4) for the tax years covered by the time period of the Summons, Petitioner filed his 

income tax returns with the United States Virgin Islands Bureau of Internal Revenue, reporting 

worldwide income and paying tax thereon under Title 26, as it applies in the U.S. Virgin Islands 

by operation of 48 U.S.C. § 1397. Pursuant to 26 U.S.C. § 6501, the applicable three-year 

statute of limitations has expired. 

 14. Second, the Summons should be quashed because the documents the IRS seeks 

from American Express Company are not relevant to determination of Petitioner’s residency or 

tax liability. 

 15. From the face of the Summons, it appears that it was issued “In the Matter of the 

tax liability of Stuart I. Meyers.” The purpose for the testimony and documents sought in the 

Summons is not disclosed on the face. 

 16. Upon information and belief, the IRS appears to be relying on a facts-andcircumstances test for residency as set forth in Sochurek v. Commissioner, 300 F.2d 34 (7th Cir. 

1062) which examined 26 U.S.C. § 911, but did not examine the applicable law under 26 U.S.C. 

§§ 871 and 932. 

 17. However, none of the information or documents that may be obtained from 

American Express Company has any bearing on any of the Sochurek factors, namely: (1) the 

intention of the taxpayer about residency; (2) establishment of a home temporarily in the foreign 

country for an indefinite period; (3) participation in the activities of his or her chosen community 

on social and cultural levels, identification with the daily lives of the people and, in general, 

assimilation into the foreign environment; (4) physical presence in the foreign country consistent 

with employment; (5) nature, extent and reasons for temporary absences from his or her 

temporary foreign home; (6) assumption of economic burdens and payment of taxes to the 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 5 of 9 PageID: 5
6

foreign country; (7) status of resident contrasted to that of transient or sojourner; (8) treatment 

accorded his or her income tax status by his or her employer; (9) marital status and residence of 

his or her family; (10) nature and duration of employment, whether his or her assignment abroad 

could be promptly accomplished within a definite or specified time; and (11) good faith in 

making his or her trip abroad and not for the purpose of tax evasion. Thus, the issuance of the 

Summons fails the second Powell test. 

 18. Further, even assuming arguendo that determining whether Petitioner is a bona 

fide resident of the U.S. Virgin Islands within the meaning of 26 U.S.C. section 932(c)(4) is a 

valid purpose under Powell, the information and documents sought from American Express 

Company have no relevance whatsoever to the determination of residency under 26 U.S.C. § 

934. The term “bona fide resident” for the periods subject to the summons (2001-2004) was 

defined in 26 U.S.C. § 934 and the Treasury Regulations thereunder. Treasury Regulation 

§ 1.934-1(c)(2) stated that “in determining whether a United States citizen is a bona fide resident 

of the Virgin Islands, the principles of sections 1.871-2, 1.871-3, 1.871-4, and 1.871-5, relating 

to the determination of residence and nonresidence in the United States, shall apply.” 

In defining residence, Treasury Regulation § 1.871-2(b) provides: 

An alien actually present in the United States who is not a mere transient or 

sojourner is a resident of the United States for purposes of the income tax. 

Whether he is a transient is determined by his intentions with regard to the length 

and nature of his stay. A mere floating intention, indefinite as to time, to return to 

another country is not sufficient to constitute him a transient. . . . [I]f his purpose 

is of such a nature that an extended stay may be necessary for its accomplishment, 

and to that end the alien make [sic] his home temporarily in the United States, he 

becomes a resident, though it may be his intention at all times to return to his 

domicile abroad when the purpose for which he came has been consummated or 

abandoned. [Emphasis added.] 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 6 of 9 PageID: 6
7

The determination of USVI residency cannot be determined by the requested documents as they 

have no bearing on Petitioner’s subjective believe as to whether he was bona a fide USVI 

residents for the period in question. 

 19. Moreover, the IRS’s position that American citizens that resided in the United 

States Virgin Islands and filed a tax return with Virgin Islands pursuant to 26 U.S.C. § 932(c) are 

not subject to the statute of limitations provisions of 26 U.S.C. § 6501 (See Notice 2007-19 and 

Notice 2007-31) is untenable. In the instant case the IRS has opened audits of tax years that are 

almost ten (10) years old. The issuance of a summons to a third party in furtherance of these 

extremely belated audits is an abuse of this Court’s process. Nina Olsen, the head of the IRS’s 

Taxpayer Advocate Service discussed in the 2009 Annual Report to Congress (a true and correct 

copy of the relevant portion is attached hereto as Exhibit 2) that “the IRS appears to be 

arbitrarily singling out a narrow class of taxpayers” (Exhibit 2, page 7 of 9) and that “IRS audits 

of years ending before December 31, 2006, have gone on long enough” (Exhibit 2, page 8 of 9). 

Accordingly, any enforcement of the third-party summons issued to American Express Company 

would be an abuse of this Court’s process. 

 20. Contemporaneously with or prior to the filing of this Petition, copies of this 

Petition were mailed by registered or certified mail to the person summoned and the IRS officers 

and offices indicated in the summons. 

WHEREFORE, Petitioner Stuart I. Meyers prays that the Administrative Summons be 

quashed and for all other just and proper relief to which they are entitled. 

// 

// 

// 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 7 of 9 PageID: 7
8

Dated August 9, 2010 

Respectfully submitted, 

_______________________________________ 

Joseph A. DiRuzzo, III, Esq., CPA (JD0300) 

Law Office of Marjorie Roberts, P.C. 

PO Box 6347 

St. Thomas, VI 00804 

TEL: 340.776.7235 

FAX: 340.776.7951 

joe@marjorierobertspc.com 

CERTIFICATE OF MAILING FOR I.R.C. §7609(b)(2)(B) 

The undersigned hereby certifies that a copy of the foregoing Petition To Quash IRS 

Third-Party Summons was deposited in the U.S. Mail, certified, return receipt requested, with 

postage prepaid, addressed to: 

American Express Company General Counsel’s Office 

Amex Company at World Financial Center 

Amex Tower C 200 Vesey Street, New York, NY 10285 

USPS return receipt number 7010 0290 0002 9185 6796 

Internal Revenue Service 

Attn: Janet Sanchez 

51 SW 1st Ave., 8th floor 

Miami, FL 33130 

USPS return receipt number 7010 0290 0002 9185 6802 

U.S. Attorney’s Office 

402 East State Street, Rm 430 

Trenton, NJ 08608 

USPS return receipt number 7010 0290 0002 9185 6819 

U.S. Attorney General 

U.S. Dept. of Justice 

950 Penn. Ave., NW 

Washington, DC 20530-0001 

USPS return receipt number 7010 0290 0002 9185 6826 

// 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 8 of 9 PageID: 8
9

_______________________________________ 

Joseph A. DiRuzzo, III, Esq., CPA (JD0300) 

Law Office of Marjorie Roberts, P.C. 

PO Box 6347 

St. Thomas, VI 00804 

TEL: 340.776.7235 

FAX: 340.776.7951 

joe@marjorierobertspc.com 

Case 3:10-cv-04052-MLC Document 1 Filed 08/09/10 Page 9 of 9 PageID: 9