United States v. Kerrigan ( 1997 )

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1558
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
RICHARD M. KERRIGAN,
Respondent, Appellant.
No. 96-1559
UNITED STATES OF AMERICA,
Petitioner, Appellee,
v.
MILDRED E. KERRIGAN,
Respondent, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy J. Gertner, U.S. District Judge]
Before
Selya, Cyr, and Boudin, Circuit Judges.
Richard M. Kerrigan on brief pro se.
Loretta C. Argrett, Assistant Attorney General, Donald K. Stern,
United States Attorney, Charles E. Brookhart and Theodore M.
Doolittle, Attorneys, Tax Division, Department of Justice, on brief
for appellee.
April 28, 1997
Per Curiam. Richard and Mildred Kerrigan appeal pro se
from district court orders enforcing Internal Revenue Service
("IRS") summonses. We affirm.
The Kerrigans argue that the summonses were issued for
improper purposes and that the testimony and other data
sought were already in the possession of the IRS. Contrary
to the Kerrigans' suggestion, the fact of having been audited
for six and a half years is not, by itself, sufficient to
raise an inference of bad faith. Moreover, we think the
Kerrigans failed to create a substantial question regarding
their allegation that the IRS already possessed everything it
sought. With the exception of third party bank records, the
Kerrigans provided no specific details about what was
provided, by whom, and when.
Nor do we think the fact that the revenue agent admitted
to having bank records shows bad faith. Cf. United States v.
Groos Nat'l Bank of San Antonio, 661 F.2d 36, 37 (5th Cir.
Unit A Oct. 1981) (per curiam) (rejecting argument that
because the IRS already had some of the information it sought
in its possession the summonses were not issued in good
faith). Rather, at most, it is a reason to restrict the
scope of the enforcement order. See United States v. Davis,
636 F.2d 1028, 1037 (5th Cir. Unit A Feb. 1981); cf. United
States v. Medlin, 986 F.2d 463 (11th Cir. 1993) (upholding
enforcement order which granted partial relief by modifying
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the summons). Here, the district court limited enforcement
of the summons so as not to require the Kerrigans to provide
third party records already produced.
The Kerrigans' remaining contentions are either waived,
because they are unaccompanied by some effort at developed
argumentation, or are meritless. We note, in particular,
that the district court did not err in declining to entertain
the Kerrigans' counterclaim or in denying their discovery
requests. Enforcement proceedings are designed to be
summary. See Donaldson v. United States, 400 U.S. 517, 529
(1971); United States v. Gertner, 65 F.3d 963, 966 (1st Cir.
1995). Although the Federal Rules of Civil Procedure are
generally applicable to such proceedings, courts may limit
their application when to apply them literally would impair
the summary nature of the proceedings. See Fed. R. Civ. P.
81(a)(3); Alphin v. United States, 809 F.2d 236, 238 (4th
Cir. 1987). The Kerrigans' counterclaims (assuming for the
sake of argument that they are viable) would have greatly
prolonged the proceedings, and there was no abuse of
discretion in declining to entertain them. And, having
concluded at the hearing that the Kerrigans' allegations of
bad faith largely boiled down to the fact that they have
"disagreements with the IRS" (a conclusion we do not think is
clearly erroneous), the court did not abuse its discretion in
failing to allow the discovery requests.
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Affirmed.
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