it is believed that there is some merit in at least part of respondent's contention in this respect. It is noticed that there are some five 'and/or' phrases used. These phrases make for impreciseness and tend towards lack of clarity rather than particularity. However, the first typewritten paragraph seems clearly in compliance with Rule 45 of the Federal Rules of Civil Procedure. The books and records of New Enterprise Stone and Lime Co., Inc., showing receipt of funds of Independent Oil Co., Inc., of Altoona are called for, as well as the disbursement of these funds, showing the name of recipient and the amount received.
On the other hand, the second paragraph seems to lack clarity as to whether what is called for are the records of Mr. Detwiler individually or as an officer of his corporation. It requires a judgment by him as to what was charged to the petty cash fund of New Enterprise for business promotion, postage, bidding expense, etcetera. It seems to me that the language is not couched in clear and precise terms as to exactly what is to be produced.
And finally, the books and records mentioned in the third paragraph seem to the Court to require someone in the corporation to come to a conclusion as to which receipts and disbursements are not reflected in the company's income tax returns. For instance, this paragraph relates to the receipt of funds by New Enterprise from firms other than Independent Oil Company, Inc., as well as the disbursement of such funds, but is limited to suppliers, whomever they may be. The point is that it does not call for records showing all of the income of the corporation and the disbursement of that income during the five taxable years in question, but only from suppliers.
Based upon the evidence and upon due consideration of the decisions cited, as well as the statutes, this court is satisfied that paragraph 1 of the subpoena relates to corporate records only and should be honored by the secretary and the corporation. Objections to paragraphs 2 and 3 of the summons are sustained. Counsel for the United States will submit an enforcement order in due course.
ON MOTION FOR RECONSIDERATION
The United States Attorney on July 9, 1964, filed a Motion For Reconsideration of the Memorandum and Order entered on June 24, with regard to the enforcement of a certain Internal Revenue Service Summons. Counsel have been heard on the motion and the briefs considered. In the previous memorandum it was indicated that the first paragraph of the summons should be honored. A separate order will be entered today directing compliance. The Motion For Reconsideration is Denied. It seems to me that the Government now seeks an Order of the Court broadening and enlarging upon what was called for in the original duces tecum part of the summons.
I have examined the statute, 26 U.S.C.A. § 7604 with regard to the enforcement provisions as well as the cases cited, particularly Falsone v. United States, 5 Cir., 205 F.2d 734, and Brody v. United States, 1 Cir., 243 F.2d 378. It seems to me that the United States Attorney requests that the Court rewrite the subpoena.
In the summons as issued, disbursement for business promotion and certain other expenses are called for as well as receipt of funds from suppliers other than Independent Oil Co., Inc. The proposal of the Government now is that the Court direct that there be produced records of petty cash disbursement as well as records showing receipts of cash and checks by New Enterprise Stone and Lime Company, Inc., from any source whatsoever. The final paragraph requests that there be produced records of New Enterprise showing all disbursements by the corporation during the five years in question.
These two paragraphs which the Government presents as a modification of the original summons seem to this Court to be an entirely new and different requirement for production when compared with the original.
And now, September 24, 1964, the Motion for Reconsideration is Denied.
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