the Internal Revenue Code of 1954. However, in light of the amendment to Section 7602(b) under the TEFRA, this defense to the enforcement of an Internal Revenue Service summons may be rejected absent a referral to the Justice Department, 26 U.S.C. §§ 7602(b), (c). In this case, where there has been no Justice Department referral, 26 U.S.C. § 7602(c); Yankovich Affidavit at para. 4, and the stated purpose of the summons is "for the years under investigation, to determine the taxpayer's correct tax liabilities and to determine whether the taxpayer has violated any of the criminal provisions of the Internal Revenue Code of 1954," Yankovich affidavit at para. 3, a proper Section 7602 purpose is stated.
The second requirement of Powell is that the summons seeks data which may be relevant to the investigation being undertaken. Powell, 379 U.S. at 57. Critical to this requirement is the notion that the inquiry " may be relevant"; absolute certainty of relevance is not the test. United States v. Bisceglia, 420 U.S. 141, 145, 43 L. Ed. 2d 88, 95 S. Ct. 915 (1975) (emphasis added). The materials sought in the subject summons pertain to Moutevelis's banking relations with Mid-State Bank during the years in question. With one exception, given the nature of the records sought, the Court is convinced that the United States has more than an "idle" hope that relevant information will be revealed from the requested materials. That exception relates to the requested "testimony" in the possession of the bank. The undersigned does not think there is any likelihood that the bank will have a record of testimony relating to the movant. In essence, the expectation of the United States is sufficiently "realistic" except as to "testimony" in possession of the bank to protect Moutevelis from a "fishing expedition" and, thereby, satisfy the relevancy requirement of the Powell test. E.g. United States v. Egenberg, 443 F.2d 512, 515-16 (3d Cir. 1971).
The United States must also demonstrate that the information sought in the subject summons is not already in the possession of the Internal Revenue Service. Powell, 379 U.S. at 57-58. In this case, the Yankovich affidavit states that the Internal Revenue Service is not in possession of the information being sought. See Yankovich affidavit at para. 10. Moutevelis does not contest this point.
Finally, the United States must establish that the procedures under the Internal Revenue Code have been satisfied in the issuance of this subpoena. Again, this matter is not in dispute and the Yankovich affidavit avers such compliance. See Yankovich affidavit at para. 11. E.g. United States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981), cert. denied, sub nom., Salkin v. United States, 455 U.S. 1018, 102 S. Ct. 1712, 72 L. Ed. 2d 135 (1982) ("[no] more than [an affidavit] is necessary to make the prima facie case" of the Internal Revenue Service.) See also United States v. Garden State National Bank, 607 F.2d 61, 68 (3d Cir. 1979).
In a last-ditch effort to avoid enforcement of the Internal Revenue Service summons, Moutevelis asserts that he is entitled both to discovery and to a hearing in this matter. See Memorandum in Support of Petition at pp. 3-4; Reply Memorandum at pp. 3-6. In particular, Moutevelis relies on Section 331(c) of the TEFRA, 26 U.S.C. § 7609(h), which gives this Court the power "to hear and determine" a proceeding to quash an Internal Revenue Service summons. On this basis alone, Moutevelis asserts the existence of a right to a hearing. Section 7609(h) is merely a jurisdictional grant of authority for this Court to entertain a matter and does not dictate that the Court hold a hearing on every petition to quash a summons. Absent an explicit direction from the Court of Appeals of this Circuit or the Congress that a hearing is required, this Court will not interrupt its other important work and hold such a hearing. Furthermore, even if the statute suggested a right to a hearing, only where factual matters are actually in dispute would an evidentiary hearing be justified. Cf. F.R.Civ.P. 56 (summary judgment appropriate where no material factual issues are in dispute.) There are no factual matters in dispute in this case. The mere unsworn and unspecific assertions of Moutevelis which, even if true, would not give rise to a legally cognizable defense to the Internal Revenue Service summons are insufficient either to permit discovery or to require an evidentiary hearing. Garden State National Bank, 607 F.2d 61 (3d Cir. 1979). See United States v. Freedom Church, 613 F.2d 316 (1st Cir. 1979).
For all of the foregoing reasons, the Court will grant in part and deny in part the petition of Moutevelis to quash the Internal Revenue Service summons. The Court will quash that portion of the summons relating to "testimony" in the possession of the bank and will otherwise direct the summary enforcement of the summons.
An appropriate order will be entered.
1. The motion of Konstantinos Moutevelis to quash the Internal Revenue Service summons is granted in part and denied in part.
2. That portion of the Internal Revenue Service summons directing Mid-State Bank and Trust Company to produce "testimony" in its possession is quashed.
3. With respect to the remainder of the summons, the motion of the United States for summary enforcement is granted.
4. The Clerk of Court shall close this file.
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