Mitchell v. Thomas , 239 F. App'x 56 ( 2007 )


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  •                                                                United States Court of Appeals
    Fifth Circuit
    F I L E D
    UNITED STATES COURT OF APPEALS
    June 27, 2007
    FIFTH CIRCUIT
    Charles R. Fulbruge III
    Clerk
    _________________
    No. 06-20887
    (Summary Calendar)
    _________________
    ROYCE EUGENE MITCHELL, JR.,
    Petitioner - Appellant,
    versus
    CHANDY THOMAS; UNITED STATES OF AMERICA,
    Respondents - Appellees.
    Appeal from the United States District Court
    For the Southern District of Texas
    No. 4:06-MC-357
    Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
    PER CURIAM:*
    The petitioner/taxpayer, Royce E. Mitchell, Jr. (“Mitchell”), was under investigation for
    outstanding tax liabilities for 2001 and 2002. The investigation was conducted by Chandy Thomas
    *
    Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in Fifth Circuit
    Rule 47.5.4.
    (“Thomas”), a revenue agent for the Internal Revenue Service. On August 10, 2006, Thomas issued
    an administrative summons to Bank of America requesting copies of “all records, including signature
    cards, bank statements, deposit slips, checks deposited” between January 1, 2001 and December 31,
    2005 pertaining to Mitchell. Notice of the summons was given to Mitchell. On August 25, 2006,
    Mitchell filed a petition to quash the summons. The district court denied Mitchell’s petition and
    Mitchell’s subsequent motion for reconsideration.
    A review the denial of a petition to quash begins by determining whether the government has
    established a prima facie case pursuant to the four factors articulated by the Supreme Court in United
    States v. Powell, 
    379 U.S. 48
     (1964). The Powell court stated that in order for the IRS to enforce
    a summons, it must demonstrate that: (1) the basis for the underlying investigation is legitimate, (2)
    the investigation’s relevancy causally relates to that basis, (3) the IRS does not already possess the
    information being sought, and (4) the administrative procedures established by the Internal Revenue
    Code have been adhered to. 
    Id. at 57-58
    . “The government’s minimal burden at this stage can be
    fulfilled by a ‘simple affidavit’ by the IRS agent issuing the summons.” Mazurek v. United States,
    
    271 F.3d 226
    , 230 (5th Cir. 2001). The government has met this burden as Thomas has submitted
    a declaration outlining the history of the case and asserting facts meeting the above factors.
    Because the government has established a prima facie case “we assess whether the opponent
    of the summons fulfills his ‘heavy’ burden of rebutting the proponent’s case by either undermining
    the proponent’s contentions regarding anyof the Powell factors or bydemonstrating that enforcement
    of the summons would result in an ‘abuse’ of the court’s process.” 
    Id.
     Mitchell has provided nothing
    beyond conclusory assertions that the Powell factors are not met and has provided no support for his
    -2-
    claim that the summons was issued in bad faith.1 This is insufficient to satisfy his heavy burden.
    Mitchell additionally argues that the district court abused its discretion by denying the petition
    to quash without holding an adversary hearing. We have held that “before a taxpayer is entitled to
    the adversary summons enforcement hearing, he ‘must raise in a substantial way the existence of
    substantial deficiencies in the summons proceedings.’” United States v. Harris, 
    628 F.2d 875
    , 879
    (5th Cir. 1980) (quoting United States v. Newman, 
    441 F.2d 165
    , 169 (5th Cir. 1971)). Mitchell’s
    conclusory assertions do not meet this standard.
    Lastly, we note that Mitchell’s arguments regarding sovereign and qualified immunity are not
    relevant to his petition to quash the summons.
    Therefore, we AFFIRM the district court’s denial of Mitchell’s petition to quash the
    summons.
    1
    “A summons is issued in bad faith if it is issued for an improper purpose such as to harass
    the taxpayer, to force the taxpayer to settle a collateral suit or for the sole purpose of gathering
    evidence for a criminal prosecution.” United States v. Harris, 
    628 F.2d 875
    , 879 (5th Cir. 1980).
    -3-
    

Document Info

Docket Number: 06-20887

Citation Numbers: 239 F. App'x 56

Judges: Garza, Higginbotham, King, Per Curiam

Filed Date: 6/27/2007

Precedential Status: Non-Precedential

Modified Date: 8/2/2023