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SANDRO v. UNITED STATES

January 24, 1980

Alfred Del Sandro and David Del Sandro
v.
United States of America, Stephen R. Takeuchi, Carmen Santa Maria and Donald Howser.



The opinion of the court was delivered by: KNOX

MEMORANDUM OPINION

The plaintiffs have filed an application for a preliminary injunction against the United States and certain officials of the Internal Revenue Service, claiming that they were not accorded the right to a meaningful conference with Internal Revenue officials, pursuant to 26 CFR 601.107(b)(2).

 Plaintiffs set forth that they received a letter from the Regional Counsel's office dated November 1, 1979, that they had received a report from the Criminal Investigation Division Internal Revenue Service recommending that plaintiffs be prosecuted for wilfully failing to pay wagering and occupational tax and for failing to register prior to engaging in such business and failing to file excise tax returns and conspiring with others to wilfully fail to file such returns.

 The letter stated:

 
"We are offering you a conference in order that you may present either in person or by representation any arguments or evidence which you desire to present and which you think this office should consider prior to reaching a final decision in this matter. All appearances at this conference are voluntary and are at your election."

 Time was fixed for the conference on November 14, 1979, and taxpayers, as was their privilege, were accompanied by their attorney. They alleged that at the conference, counsel requested the defendants to provide him with sufficient facts and figures to acquaint him with the basis of the charges. The only information which defendants provided is that the proof relied on was on a specific item basis and that the criminal figures are substantially lower than the civil figures. Plaintiffs allege that this is not sufficient to acquaint them with the basis, nature and other essential elements of the proposed charges against them. Therefore, this was not a meaningful conference of the kind provided for in the regulations.

 Section 601.107(b)(2) of 26 CFR provides as follows:

 It should be further noted that in 601.107(c) it is further provided as follows:

 
"(c) Processing of cases after investigation. The Chief, Criminal Investigation Division, shall ordinarily notify the subject of an investigation and his authorized representative, if any, when he forwards a case to the Regional Counsel with a recommendation for prosecution. The rule will not apply if the case is with a United States Attorney."

 The plaintiffs asked for a preliminary injunction to require defendants to provide plaintiffs a proper conference during which the plaintiffs would be provided with the facts and features of the government's case which the government contends make them criminally liable and the nature and amounts of any transactions upon which criminal charges are based and to restrain defendants from transmitting plaintiffs' files to the Department of Justice until they have complied.

 The government has moved to dismiss the action on the grounds the complaint fails to state a claim upon which relief can be granted or in the alternative that the court lacks jurisdiction. At the time fixed for hearing on the preliminary injunction, the court postponed that hearing pending resolution of the motion to dismiss. In view of the fact that the court concludes that this complaint should be dismissed for failure to state a claim upon which relief can be granted, the prayer for preliminary injunction is rendered moot and the action will be dismissed.

 It will be noted that 601.107(b)(2) only applies where there has not as yet been a recommendation made for criminal prosecution. The letter of November 1 from the office of regional council shows on its face the recommendation has already been made by the Criminal Investigation Division Internal Revenue Service recommending that the taxpayers be prosecuted. 107(b)(2) applies only where the criminal recommendation has not yet passed from the Criminal Investigation Division in which case a taxpayer may be afforded a district conference as therein described if he requests one or where the Chief of the Criminal Investigation makes the determination that such conference will be in the best interest of the government. As is shown under 107(c), when the case has been forwarded to the office of Regional Counsel with a recommendation for prosecution, it is no longer in the hands of the Criminal Investigation Division which is authorized to conduct the conference described in 107(b)(2).

 Such conferences would ordinarily be considered a matter of grace between the government and the taxpayer. Here there is no question of whether the taxpayers have waived their rights, since the taxpayers say in this case they did not know of the criminal investigation. The fact remains that there is no provision for such a conference as provided in 107(b)(2) when ...


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