interested parties, and (d) a stay would do no harm to the public interest." Bauer v. McLaren, 332 F.Supp. 723, 729 (S.D. Iowa 1971), cited with approval in Evans v. Buchanan, 424 F.Supp. 875, 879 (D. Del. 1976).
Applying these principles to the instant case, it is apparent that the taxpayer has not met the requirements for a stay. The appeal's likelihood of success on the merits is slim in view of the heavy burden on the taxpayer "to disprove the actual existence of a valid civil tax determination or collection purpose by the Service" United States v. LaSalle, 437 U.S. 298, 316, 98 S. Ct. 2357, 2367 (1978); United States v. Genser, Nos. 76-2623 and 76-2624 (3rd Cir., filed July 16, 1979).
Furthermore, no injury, much less irreparable injury, to the taxpayer by virtue of a denial of the stay has been shown. If the records produced are prejudicial to the taxpayer, the proper place to raise abuse of process is at trial. Donaldson v. United States, 400 U.S. 517, 530-31, 91 S. Ct. 534, 542, 27 L. Ed. 2d 580 (1970). Since there is presently no recommendation for criminal prosecution of the taxpayer, his claims of prejudice are mere speculation.
Substantial harm will come to other parties and the public interest from the grant of the stay. The government's investigation of the taxpayer will be seriously impeded. One of the reasons for not allowing the taxpayer to intervene at the summons enforcement stage was to prevent undue hindering of the IRS investigation. To delay that process while my denial of intervention is appealed flies in the face of the policies announced by the Supreme Court in Donaldson, supra, and my opinion. In Bauer v. McLaren, supra, at 729-30, the district court refused to stay enforcement of a judgment pending appeal since a stay would disrupt the crucial investigatory activities of the grand jury.
The taxpayer has not persuaded me to exercise my discretion to grant a stay, thus the enforcement of the summons against the law firm should proceed. If a criminal action is brought against the taxpayer, he can challenge the introduction of these records at that time.
AND NOW, this 24th day of July, 1979, the motion of the applicant for intervention for a stay of any proceedings to enforce my order of June 21, 1979 in favor of the government pending appeal is hereby refused for the reasons set forth in the accompanying memorandum.
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