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Fortney v. United States

filed: June 29, 1995.

JOHN H. FORTNEY, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Nevada. D.C. No. CV-93-00437-ECR. Edward C. Reed, Jr., District Judge, Presiding.

Before: Mary M. Schroeder, Robert R. Beezer and David R. Thompson, Circuit Judges. Opinion by Judge Beezer.

Author: Beezer

BEEZER, Circuit Judge:

We decide whether the Internal Revenue Service, after serving a summons on a third-party recordkeeper, must serve an attested copy of the summons on the taxpayer.

John H. Fortney appeals pro se the district court's dismissal of his motion to quash Internal Revenue Service ("IRS") summonses issued to third-party recordkeepers pursuant to 26 U.S.C. § 7602. We have jurisdiction under 28 U.S.C. § 1291. Because we conclude that 26 U.S.C. § 7609(a) does not require an attested copy of the summons be served on the taxpayer, we affirm.

I

As part of an investigation into John Fortney's tax liability for the taxable years 1988-1992, IRS Special Agent John Heeran issued summonses on June 8 and 15, 1993 to the First Interstate Bank in Carson City, Nevada, and the First Interstate Bank in Stateline, Nevada. The summonses requested information "on all accounts in which the subject [Fortney] has an interest for the periods so designated." Additionally, the summons issued to the Stateline Bank identified one known account of Fortney's. An attested copy of the appropriate summons was served on each bank. Heeran gave notice of service of the summonses (including copies of the summonses) to Fortney by certified mail. The copies were not attested.

Fortney filed a timely petition to quash the summonses on both Nevada banks. Fortney's petition also sought to quash a third summons served on Southern California Bank in Rowland Heights, California. The United States filed a response to Fortney's petition and a petition to enforce the Nevada summonses. The United States requested that the district court dismiss for lack of subject matter jurisdiction the action regarding service of a summons on a California bank.

Pursuant to the district court's standing order, the matter was referred to a United States Magistrate Judge. On October 5, 1993, a hearing was held before the Magistrate Judge on the petitions of Fortney and the United States. Fortney raised a number of objections to the adequacy and propriety of the summonses. The United States submitted a Declaration from Agent Heeran explaining both the purpose behind issuance of the summonses and the details surrounding service of the summonses.

The Magistrate Judge made a report and recommendation to the district court.*fn1 She recommended dismissing Fortney's petition to quash the California summons, denying Fortney's petition to quash the Nevada summonses, and granting the United States' petition for enforcement of the Nevada summonses.

The district court agreed, and adopted the Magistrate Judge's report and recommendation. Fortney appeals.

II

We will reverse a decision to enforce an IRS summons only when it is clearly erroneous. Ponsford v. United States, 771 F.2d 1305, 1307-08 (9th Cir. 1985). The denial of a petition to quash an IRS summons is also reviewed under the clearly erroneous standard. Tornay v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988). To the extent the district court interpreted statutory ...


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