of books, papers, records, or other data, it shall be sufficient if such books, papers, records, or other data are described with reasonable certainty.' 26 U.S.C.A. 7603. The papers requested are those prepared by the respondent-accountants in connection with their audit of the taxpayers' business. In my opinion, the wording of the summons described with reasonable certainty the material requested of the respondent by the petitioner, Special Agent Wright. Respondent apparently fears that the summons lays open his files to the inquisitive eye of the petitioner, including purely personal material, such as inter-office memoranda. Petitioner denies any such intention and concedes that if he requests a particular item that is not relevant or material, then respondent may make a specific objection to that item and the Court may modify the summons. However, there is no specific objection before the Court for ruling at this time.
The intervening respondents further argue that their rights under the Fourth and Fifth Amendments would be violated if the summons is enforced. They contend that the summons was issued by a Special Agent of the Internal Revenue Service and, ipso facto, is a search for evidence of a crime, which violates the Fourth Amendment. Initially, it appears doubtful that the intervening taxpayers have standing to raise the objection, since it was the respondent upon whom the summons was served. See Zimmerman v. Wilson, 105 F.2d 583, 586 (3d Cir. 1939); Foster v. United States, 265 F.2d 183, 187 (2d Cir. 1959); DeMasters v. Arend, 313 F.2d 79, 85 (9th Cir. 1963).
However, aside from the lack of standing, it is untenable, in my opinion, to equate the enforcement order here under consideration with an unreasonable search and seizure. See Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 195, 66 S. Ct. 494, 90 L. Ed. 614. Section 7602 authorizes the examination of books and witnesses for the purpose of 'ascertaining the correctness' of an income tax return. The fact that a possible criminal prosecution may result from the examination and the Commissioner of Internal Revenue delegates a Special Agent to conduct the investigation does not necessarily mean that there will be a criminal prosecution. This point was set down in Boren v. Tucker, 239 F.2d 767 (9th Cir. 1956), when the Court said, at page 772:
'While it is true that once a possible criminal prosecution comes into existence there can be no settlement of tax until that possibility has been ruled out, yet the existence of the possibility of criminal prosecution does not necessarily mean that there will be criminal prosecution. The ultimate decision may be, (1) civil liability for the correct tax, (2) liability for the tax plus penalty, (3) criminal prosecution, or (4) both the penalty and the criminal prosecution. Helvering v. Mitchell, supra; 26 U.S.C.A. § 6653(b), 7201 et seq.'
Judge Willson of the United States District Court for the Western District of Pennsylvania, in a Memorandum dated June 24, 1964, rejected this same argument asserted by the intervening respondents in a case involving the taxpayers' records.
Therefore, compliance with the aforementioned summons does not violate the intervening respondents' rights under the Fourth Amendment.
The argument asserted by the intervening respondents under the Fifth Amendment also must fall. First, the privilege against self-incrimination is personal in nature and cannot be raised by a party not in possession of the subject matter of the summons. See In Re Fahey, 300 F.2d 383 (6th Cir. 1961). There is no allegation by the intervening taxpayers of any title to the records in question. Secondly, assuming arguendo that respondent-intervenors could assert the privilege, it would be to no avail. The Supreme Court of the United States has held that the privilege against self-incrimination does not extend to a corporation; it is a personal privilege which can be raised by individuals alone. See Hale v. Henkel, 201 U.S. 43, 26 S. Ct. 370, 50 L. Ed. 652 (1906); Wheeler v. United States, 226 U.S. 478, 33 S. Ct. 158, 57 L. Ed. 309 (1913); Grant v. United States, 227 U.S. 74, 33 S. Ct. 190, 57 L. Ed. 423 (1913); United States v. White, 322 U.S. 694, 64 S. Ct. 1248, 88 L. Ed. 1542 (1944).
Finally, this Court cannot agree with the contention of the intervening respondents that the provisions of § 7605(b) of the Internal Revenue Code of 1954 would be violated if the summons was complied with. The intervening respondents rely on the decision of United States v. Powell, 325 F.2d 914 (1963), in which the Third Circuit Court of Appeals held that this provision of the Internal Revenue Code 'means that the court shall decide on the basis of the showing made in the normal course of an adversary proceeding whether the agent's suspicion of fraud is reasonable.' This holding was reversed by the United States Supreme Court in its recent opinion 85 S. Ct. 248 dated November 23, 1964. Mr. Justice Harlan, writing for the Court, held 'that the Government need make no showing of probable cause to suspect fraud unless the taxpayer raises a substantial question that judicial enforcement of the administrative summons would be an abusive use of the court's process, predicated on more than the fact of re-examination and the running of the statute of limitations on ordinary tax liability.' Later on in this opinion the Court stated:
'Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation. The burden of showing an abuse of the court's process is on the taxpayer * * *.'(Emphasis supplied)
There has been no such showing here. Even if Section 7605(b) had been violated, it is doubtful that the intervening taxpayers could properly raise it since it is not their records which are the subject matter of the summons. See Application of Magnus, 299 F.2d 335, 337 (2d Cir. 1962).
Therefore, for the reasons set out above, neither the respondent nor the intervening respondents have shown good cause why the summons which is the subject of this action should not be complied with. The respondent, Melvyn R. Bowman, will be ordered to comply with the Internal Revenue summons issued by the petitioner, Special Agent John P. Wright.
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