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Pilchesky v. United States

June 23, 2008

JOANNE RICCI PILCHESKY, AND JOSEPH PILCHESKY PETITIONERS,
v.
UNITED STATES OF AMERICA, SIDNEY BURNSIDE, REVENUE OFFICER, AND RUTH LITTMAN, GROUP MANAGER, RESPONDENTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is the "Petition to Quash 3rd Party Summons" (Doc. 1) of pro se Petitioners Joanne Ricci Pilchesky and Joseph Pilcheski. For the reasons that follow, Respondent the United States will be ordered to show cause why the Petition should not be granted. The Court has jurisdiction over this matter pursuant to 26 U.S.C. § 7609(h).

BACKGROUND

Petitioners allege that Respondent Sidney Burnside, a revenue officer with the Internal Revenue Service ("IRS"), contacted Joseph Pilchesky on or about March 5, 2008 by leaving his card at Petitioner's door. (Pet., Doc. 1 ¶ 8(c).) Mr. Pilchesky then called Agent Burnside, who notified him that he, Burnside, "had in his possession a 1099 form dated for the year 2005." (Id. ¶ 8(d).) Mr. Pilchesky requested a copy and told Agent Burnside that he would retain a certified tax professional to prepare the 2005 return. (Id.)

That day, Burnside faxed a copy of the 1099 to Mr. Pilchesky with a cover sheet directing Mr. Pilchesky to return the 2005 tax return to him by March 24, 2008, leaving Mr. Pilchesky only fourteen (14) days, during the time of year in which tax preparers are most busy, to retain a preparer and complete the return. (Id. ¶ 8(e)-(f).) Burnside's letter advised Mr. Pilchesky that if the return were not received by the deadline, it would be referred to "Exam" and completed for him. (Id. ¶ 8(e).) Agent Burnside never contacted Petitioner Joanne Ricci Pilchesky to advise her of any deficiency in tax filing or any deadlines that may apply to her, and she was unaware of any deficiencies related to her income tax returns. (Id. ¶¶ 8(g), 10.) Both Petitioners are stable residents of Scranton with no history of being uncooperative with the IRS, and both have demonstrated their good faith by maintaining communication with Agent Burnside, cooperating with him, and never refusing to file any return as requested by Burnside. (Id. ¶¶ 9, 11.)

On March 27, 2008, Agent Burnside issued four (4) separate third party summonses to NBT Bank N.A., Wachovia Bank N.A. Retail Credit Servicing, Community Bank N.A. & First Liberty Bank Trust, and Citizens & Northern Bank, requesting certain testimony and documentation from each financial institution. (Id. ¶¶ 1-5.) These summonses were also signed by Respondent Ruth Littman, a group manager at the IRS. (See Exs. A-D, Doc. 2.) Although the summonses identify Petitioners, they do not, on their face, reveal the purpose for the testimony and documentation sought. (Pet., Doc. 1 ¶ 6.) Notice of the summonses was sent by certified mail to Petitioners on March 28, 2008, and Petitioners timely filed this petition to quash on April 17, 2008. (See id. ¶ 1.)

DISCUSSION

I. Applicable Law

The IRS has authority to issue summonses in taxpayer cases pursuant to 26 U.S.C. § 7602(a), which provides:

For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for internal revenue tax ... or collecting any such liability, the Secretary is authorized -

...

(2) To summon ... any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax ... to appear before the Secretary at any time and place named in the summons and to produce such books, papers, records or other data, ... as may be relevant or material to such inquiry.

Additionally, "[i]f any summons to which this section applies requires the giving of testimony on or relating to, [or] the production of any portion of records made or kept on or relating to . . . any person (other than the person summoned) who is identified in the summons, then notice of the summons shall be given to any person so identified." 26 U.S.C. § 7609(a)(1). Petitioners, who are identified in the summonses as the persons to whom the requested records pertain, are thus entitled to, and allege that they received, notice under § 7609(a)(1). Petitioners request that this Court order the Respondents to appear to show cause why the Court should not quash the summonses. This request is made pursuant to 26 U.S.C. § 7609(b)(2)(A), which provides that:

Notwithstanding any other law or rule of law, any person who is entitled to notice of a summons under subsection (a) shall have the right to begin a proceeding to quash such summons not later than the 20th day after the day such notice is given in the manner provided in subsection (a)(2). In any ...


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