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UNITED STATES v. POWELL

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


December 27, 1963

UNITED STATES of America and Ernest J. Tiberino, Jr., Special Agent, Internal Revenue Service, Petitioners,
v.
Max POWELL, Respondent

The opinion of the court was delivered by: DUSEN

In this case, petitioners, the Government and an Internal Revenue Service agent, are investigating the income tax returns of Kline's Coat, Apron & Towel Service of Harrisburg, Inc. (hereinafter called 'Kline's, Inc.') for the taxpayer's fiscal years ending May 31, 1958, and May 31, 1959. A summons issued on May 28, 1963, directed respondent, Max Powell, to produce certain of Kline's, Inc.'s records, of which he is in possession by virtue of authority granted by the estate of Lawrence C. Kline, deceased, who was the 100% Shareholder in Kline's, Inc. on and prior to August 4, 1961. On that date, Mr. Kline agreed to sell this stock to a Florida company by a contract providing that he would defend against any tax liability for a period prior to August 1961 and hold Kline's, Inc. and the Florida company harmless from any obligation or expense in connection therewith. Mr. Powell was Vice President of Kline's, Inc. during the years in question (the years ending May 31, 1958, and May 31, 1959).

Argument has been presented on the limited issue: Is respondent, Max Powell, entitled to invoke the defense of Section 7605(b) of the Internal Revenue Code of 1954 in refusing to comply with an Internal Revenue summons addressed to him as President of William Penn Laundry, Inc., which directed him to produce certain books, records, papers, documents, accountant's records, etc., of Kline's, Inc. in his possession and relating to the tax liabilities of Kline's, Inc. for the fiscal years ended May 31, 1958, and May 31, 1959?

 It is the opinion of the court that Mr. Powell is covered by the word 'taxpayer' as used in ยง 7605(b) of the Internal Revenue Code of 1954 *fn1" and is entitled to the benefits of that section insofar as the records demanded in this proceeding are concerned, since he stands in the position of the taxpayer under the facts of this record. See, particularly, the affidavit of Max Powell dated November 10, 1963 (Document 6). Mr. Powell is the person opposing the demand on behalf of the corporate taxpayer in this matter, since Kline's, Inc. has concurred in Mr. Powell's resisting the application of the Internal Revenue Service for access to the 1958 and 1959 books and records. *fn2" The cases relied on by the Government *fn3" are inapplicable to the factual situation presented by this record.

 The parties agree that the ultimate disposition of the above Petition cannot be made on this record and, in view of the decision of the United States Court of Appeals for the Third Circuit in United States v. Powell & William Penn Laundry, Inc., 325 F.2d 914, a conference will be held at 11 A.M. on January 6, 1964, unless the Government applies for a hearing to be scheduled at that time to permit it to offer evidence in the light of the above-mentioned decision of December 23, 1963.


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