652 F2d 60 United States of America v. Michigan Telephone Employees Credit Union

652 F.2d 60

81-1 USTC P 9399

United States of America and James F. Dowling, Special
Agent, Internal Revenue Service, Petitioners-Appellees
v.
Michigan Telephone Employees Credit Union, Respondent, and
Lynn Johnston, Intervenor-Appellant, United States
of America and
James F. Dowling, Special Agent, Internal Revenue Service,
Petitioners-Appellees
v.
Old Kent Bank & Trust Company, Respondent, and Lynn
Johnston, Intervenor-Appellant.

No. 80-1286 and 80-1287.

United States Court of Appeals, Sixth Circuit.

March 3, 1981.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

Before ENGEL, MERRITT and KENNEDY, Circuit Judges.

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1

These appeals have been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and records, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

2

Johnston appeals from the order of the District Court which granted petitions to enforce summonses issued by the Internal Revenue Service. 26 U.S.C. Sec. 7602. Johnston challenged the summonses on fourth amendment grounds and on the ground that the Service was acting in bad faith.

3

The Service is not required to establish probable cause before it is entitled to enforcement of a summons. United States v. Powell, 379 U.S. 48, 51 (1964). It need only establish a prima facie case that the investigation of the taxpayer is for a proper purpose, that the inquiry is relevant to that purpose, that the information sought is not already within the Service's possession, and that the Service has followed the proper administrative steps. Id. at 57-8. Here the Service has established all of these requirements.

4

Once the Service establishes a prima facie case, the taxpayer must produce evidence showing that the Service is acting in bad faith. Powell, supra, at 57-8. Legal conclusions and mere memoranda of law do not suffice. United States v. Garden State National Bank, 607 F.2d 61, 71 (3rd Cir.1979); United States v. National Bank of South Dakota, 622 F.2d 365, 367 (8th Cir.1980). The District Court found that Johnston had failed to present any evidence of bad faith by the Service, and that finding is not clearly eroneous. Rule 52(a), Federal Rules of Civil Procedure.

5

Upon consideration, it is ORDERED that the order of the District Court be affirmed under Rule 9(d)3, Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.