Jeffrey A. Azis v. United States Internal Revenue Service , 522 F. App'x 770 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-13929
Non-Argument Calendar
________________________
D.C. Docket No. 9:11-cv-80360-DTKH
JEFFREY A. AZIS,
Plaintiff-Appellant,
JEFFREY A. AZIS, CPA, PA,
Plaintiffs,
versus
UNITED STATES INTERNAL REVENUE SERVICE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 1, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
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Jeffrey Azis, proceeding pro se, appeals the district court’s order denying his
petition to quash three Internal Revenue Service (“IRS”) summonses issued to
third-party banks. 1
In April 2010, Azis, the owner of a small accounting and consulting
business, received notice from the IRS that he was being audited. As part of its
investigation, the IRS issued summonses to two banks where Azis and his
corporation held accounts. Azis sought to quash the summonses, and argued,
among other things, that they were issued to harass him because of his political
beliefs and associations. Because the summonses were issued for an improper
purpose, he argued, they did not meet the criteria for lawful summonses found in
United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). The
district court referred the matter to a magistrate judge, who held an evidentiary
hearing. During the hearing, the magistrate judge heard testimony from IRS agents
Tilo Alexander and Heather Cole, who testified that Azis was selected for audit
because (1) he was a non-filer with unreported income; (2) he had purchased a
product from Robert Schultz, an individual who promoted and sold tax avoidance
schemes; and (3) he had participated in a lawsuit, with Schultz and the nonprofit
organization We The People, against the government in which he had stated that he
1
Azis originally filed his appeal on behalf of his corporation, Jeffrey A. Azis, CPA, PA,
as well as himself. We dismissed the appeal as to the corporation for want of prosecution after it
failed to retain counsel. Accordingly, the only petitioner on appeal is Azis in his individual
capacity.
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would violate the law by not paying income taxes. Agent Cole further testified
that, based on her investigation, she saw no reason to believe that Azis was
selected for audit because of his political beliefs. The magistrate judge issued a
report and recommendation (“R&R”), credited the testimony of the IRS agents,
and found that Azis was audited for the reasons stated by Agent Cole. Azis filed
22 pages of objections to the R&R, including an objection to the magistrate judge’s
adoption of Agent Cole’s testimony. The next day, the district court fully adopted
the R&R and denied Azis’s motion to quash.
On appeal, Azis argues that the district court failed to make the required de
novo review of the R&R. The evidentiary hearing transcript that the district court
referred to in its adoption of the R&R was not filed until a week after the court
adopted the R&R. The district court thus could not have conducted a de novo
review.
The government responds that, after the transcript was entered on the docket,
Azis brought the matter to the district court’s attention in his motion for
reconsideration. When the district court denied that motion, it implicitly
determined that nothing in the transcript changed the outcome of the case.
We review a district court’s treatment of a magistrate judge’s report and
recommendation for abuse of discretion. Williams v. McNeil, 557 F.3d 1287, 1290
(11th Cir. 2009).
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A district court judge may designate a magistrate judge to conduct hearings,
including evidentiary hearings, and, for certain motions, to submit proposed
findings of fact and recommendations to the judge of the court. 28 U.S.C.
§ 636(b)(1)(B). When a party objects to the findings contained in a magistrate
judge’s R&R, the district court must conduct a de novo review of those findings.
28 U.S.C. § 636(b)(1). “The de novo requirement is essential to the
constitutionality of section 636.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507,
512 (11th Cir. 1990). De novo review does not require a new hearing of witness
testimony, but “does require independent consideration of factual issues based on
the record.” Id. at 513.
The district court wholly adopted the R&R, which included reference to
Agent Cole’s testimony, the day after Azis filed 22 pages of objections to its
findings. Although the district court filed its order before the transcript was
entered in the record, and arguably erred, Azis filed a motion for reconsideration,
which gave the district court the opportunity to review the transcript. Thus any
error would be harmless because the district court has now had the opportunity to
review the transcript.
Next, Azis argues that the district court erred when it did not quash the
summonses because the summonses failed to meet all four prongs of Powell.
First, he asserts the investigation was not conducted for a legitimate purpose
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because it was based on Azis’s political beliefs and membership in We the People.
Second, the summonses sought irrelevant client-identifying information. Third,
the summonses sought documents already in the IRS’s possession. Finally, correct
administrative procedures were not followed with regard to the issuance of the
summonses
The government responds that the district court properly denied Azis’s
petition to quash the IRS summonses because: (1) the IRS has broad summons
authority; (2) the government established a prima facie case that the summonses
were valid; (3) Azis’s assertion that the IRS already possessed the information
sought is incorrect; (4) Agent Alexander served attested copies of the summonses
on the third parties; (5) Agent Alexander’s failure to provide Azis with the
attachment to the summons was inadvertent, and caused Azis no prejudice; (6)
Agent Alexander possessed authority to issue summonses; and (7) client-
identifying information was relevant to the investigation.
This Court reviews an order enforcing an IRS summons for clear error.
Nero Trading, LLC v. U.S. Dep’t of Treasury, 570 F.3d 1244, 1248 (11th Cir.
2009). Section 7602 of the Internal Revenue Code permits the IRS to “examine
any books, papers, records, or other data which may be relevant or material to”
determine the correctness of a tax return or the liability of a taxpayer. 26 U.S.C. §
7602(a)(1). The IRS may summon either the person liable for the tax or “any
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person having possession, custody, or care of books of account containing entries
relating to the business of the person liable for” the tax. 26 U.S.C. § 7602(a)(2).
Section 7609(b) grants a person entitled to notice of a summons the right to
petition to quash the summons. 26 U.S.C. § 7609(b). If the summons is
challenged:
the IRS must demonstrate (1) that the investigation
will be conducted pursuant to a legitimate purpose, (2)
that the inquiry will be relevant to that purpose, (3)
that the information sought is not already in the IRS’
possession and, (4) that it has taken the administrative
steps necessary to the issuance of a summons.
La Mura v. United States, 765 F.2d 974, 979 (11th Cir. 1985) (citing Powell, 379
U.S. at 57-58, 85 S. Ct. at 255). The IRS may satisfy its minimal burden merely by
presenting the sworn affidavit of the agent who issued the summons attesting to
these facts. La Mura, 765 F.2d at 979. If the IRS makes the necessary showing,
the “burden shifts to the party contesting the summons to disprove one of the four
elements of the government’s prima facie showing.” Id. at 979-80. The taxpayer’s
burden to disprove the actual existence of a valid civil tax determination or
collection purpose by the IRS is “a heavy one.” United States v. LaSalle Nat.
Bank, 437 U.S. 298, 316, 98 S. Ct. 2357, 2367 (1978). Indeed, the contesting
party must allege specific facts and introduce evidence. United States v. Leventhal,
961 F.2d 936, 940 (11th Cir. 1992).
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Here, the government established a prima facie case for enforcement of the
summonses. As detailed below, the declaration and testimony of Agents
Alexander and Cole were sufficient to establish that (1) the purpose of the
summonses was to obtain records relevant to determining Azis’s tax liability for
2007 and 2008; (2) the records were relevant to Azis’s tax liability; (3) the IRS did
not already possess the requested records; and (4) the IRS complied with the
administrative steps necessary to issue the summonses. See La Mura, 765 F.2d at
979. Accordingly, Azis had the “heavy” burden to disprove one of the four
elements of the prima facie case to show that enforcement of the summonses
would constitute an abuse of discretion. See LaSalle Nat. Bank, 437 U.S. at 316,
98 S. Ct. at 2367; La Mura, 765 F.2d at 979-80.
A. Legitimate Purpose
The district court’s finding with respect to the purpose for which an IRS
summons has been issued is one of fact, and this Court will not overturn it unless it
is clearly erroneous. La Mura, 765 F.2d at 981 n.10.
Here, the district court’s finding that the IRS issued the summonses for a
legitimate purpose was not clearly erroneous. Agent Alexander attested that the
summonses were issued as part of an investigation to determine Azis’s tax liability
for 2007 and 2008 because the IRS suspected that Azis had unreported income. In
June 2009, the Classification Group selected Azis’s personal return for 2007
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because, at that time, he had yet to file his return. Agent Cole testified that Azis
was selected for audit because: (1) he was a non-filer with unreported income; (2)
he had purchased a product from Schultz and WTP, which were known to sell
products promoting tax evasion; and (3) he had identified himself in a lawsuit
against the government which stated that he would violate the law by not paying
income taxes.
Azis attempted to show, through his testimony, that the IRS audited him
because of his involvement in WTP. He testified that, instead of calling him on his
business phone, Agent Alexander called him at a phone number that he believed
was only listed on the WTP website. However, Agent Cole explained that field
agents must find the audited taxpayers on their own because the agents are only
given taxpayers’ addresses, and Agent Alexander testified that he found Azis’s
phone number after searching on Google. Thus, there is no indication that, by
finding his phone number on the WTP website, Agent Alexander sought to harass
Azis for his involvement in the organization, rather than as a regular method of
searching for a contact phone number. Further, Azis had already been selected for
audit when Agent Alexander searched for his phone number. Thus, the fact that
Agent Alexander found Azis’s phone number on the WTP website after he had
been selected for an audit does not show that he was audited because of his
involvement in WTP or for any improper purpose.
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Azis also testified that Agent Alexander questioned him about his
involvement in WTP, and asked him whether he believed that the income tax was
illegal. However, asking Azis whether he believed the income tax was unlawful
when, at the time, he had not filed an income tax return for a previous year, was a
legitimate question, and did not reveal any improper purpose. As the magistrate
judge stated, and the district court adopted, Azis “was not selected for an audit in
retaliation for his involvement in We the People; rather, he was scrutinized as
someone who affirmatively disavowed his taxpayer obligations and ultimately
selected for audit when he revealed himself to be a non-filer.” Azis did not
introduce any evidence to the contrary, and thus failed to meet his “heavy” burden
of showing that the summonses were issued for an improper purpose. See LaSalle
Nat. Bank, 437 U.S. at 316, 98 S. Ct. at 2367; Leventhal, 961 F.2d at 940.
Accordingly, the court’s conclusion that the IRS summonses were issued for a
legitimate purpose was not clearly erroneous. See La Mura, 765 F.2d at 981 n.10.
B. Relevance
This Court will not overturn the district court’s determination that
information sought was relevant to the IRS’s investigation unless clearly
erroneous. Id. at 982 n.13. The government’s burden of showing relevance is
light. Id. at 981. If the information sought by an IRS summons might throw light
upon the correctness of the taxpayer’s return, then it is relevant. Id. The Supreme
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Court has held that the IRS may collect names of third-party licensees who
purchased items from the party being audited, because the names “may be
relevant” to the IRS’s investigation. See Tiffany Fine Arts, Inc. v. United States,
469 U.S. 310, 323, 105 S. Ct. 725, 732, 83 L.Ed.2d 678 (1985).
The information that Agent Alexander sought from the summonses was
relevant, especially because Azis admitted to having unreported income of $26,677
in 2007. Agent Alexander needed the payor and payee information from Azis’s
bank accounts because he was conducting a “bank deposits method of analysis,”
and Azis could not provide the necessary documents due to a flood and the
accidental deletion of the information. The source of the deposit items could be
independent third-parties or other bank accounts in Azis’s control that he had not
disclosed to the IRS. The deposit items would further detail whether a check that
was deposited was in part cashed, shedding additional light on Azis’s income. The
cancelled checks and the monthly bank statements would help establish whether
Azis controlled undisclosed bank accounts. Although Azis argues that his clients’
identities are irrelevant, their names “may be relevant” to show that he received
unreported income. See Tiffany Fine Arts, 469 U.S. at 323, 105 S. Ct. at 732. Azis
did not introduce any evidence to show that the information sought was irrelevant,
and thus, failed to meet his “heavy” burden. See LaSalle Nat. Bank, 437 U.S. at
316, 98 S. Ct. at 2367; Leventhal, 961 F.2d at 940. Accordingly, the district
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court’s conclusion that the information sought was relevant was not clearly
erroneous. See La Mura, 765 F.2d at 981.
C. Information Not Already in IRS Possession
Here, Azis provided Agent Alexander with thousands of documents,
including bank statements, checks, and receipts. Azis conceded, however, that he
did not provide client-identifying information or his personal bank disbursement
information. In his brief, he further concedes the issue by stating that, although he
provided Agent Alexander with monthly account statements and cancelled checks,
he did not provide deposit items, deposit slips, or copies of all checks deposited
into his accounts because he does not maintain such copies, and such information
is unnecessary to compute his tax liabilities. Thus, at least some of the information
requested in the summonses was not already in the possession of the IRS. See La
Mura, 765 F.2d at 979.
D. Correct Administrative Procedures
Azis raises three arguments concerning why the summonses should have
been quashed on procedural grounds, which are discussed below.
i. Attestation
Azis argues that, during the evidentiary hearings, Agent Alexander failed to
follow the steps required by 26 U.S.C. § 7603 when he was only able to produce a
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blank copy of a summons form, which provided no proof that a proper attestation
had been made on the original summonses forms to the banks.
A summons issued under 26 U.S.C. § 7602 shall be served by an attested
copy delivered to the person to whom it is directed, and the certificate of service
signed by the person serving the summons shall be evidence of the facts it states on
the hearing of an application for the enforcement of the summons. 26 U.S.C. §
7603(a).
Agent Alexander’s sworn declaration provided that, on March 18, 2011, he
served the summoned parties with attested copies of the summonses, in accordance
with 26 U.S.C. § 7603. This was sufficient to establish a prima facie case. See La
Mura, 765 F.2d at 979. Furthermore, the certificates of service on the summonses
stated that Agent Alexander sent attested copies of the summons. The certificates
of service provided evidence that Agent Alexander did provide attested copies. 26
U.S.C. § 7603(a). Azis provided no evidence to overcome his “heavy” burden of
disproving that the summoned parties received attested copies of the summonses.
See LaSalle Nat. Bank, 437 U.S. at 316, 98 S. Ct. at 2367; Leventhal, 961 F.2d at
940.
ii. Time and Manner of Notice
Next, Azis contends that Agent Alexander did not provide him with
complete copies of the summonses within three days of the day on which service to
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the third parties was made, as required by § 7609. He also argues that faxing is not
a proper method for delivery of notice.
Notice must be given to any person about whom the IRS has summoned
information from a third-party record keeper. 26 U.S.C. § 7609(a)(1). Such notice
to the taxpayer must be given within three days of the day on which such service is
made to the third party, but no later than the 23rd day before the day fixed in the
summons as the day upon which such records are to be examined. Id. Such notice
shall be sufficient if, on or before the third day, notice is served in the manner
provided in § 7603, or is mailed by certified or registered mail to the last known
address of such person, or left with the person summoned. Id. § 7609(a)(2).
Service under § 7603 requires an attested copy delivered in hand to the person to
whom it is directed, or left at his last and usual place of abode. Id. § 7603(a).
Here, it is undisputed that Agent Alexander served copies of the summonses,
without “Attachment A,” to Azis by certified mail on March 18, 2011.
“Attachment A” listed the specific records sought from the third party banks.
Agent Alexander faxed Azis the missing attachments of the summonses seven days
later, on March 25, 2011. Agent Alexander averred that, although he inadvertently
omitted the attachments, he remedied the omission “by providing the full
summonses with the attachments on March 25, 2011.” Azis contested this
assertion by averring that Agent Alexander only faxed three pages, consisting of
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copies of “Attachment A” for each of the three summonses, and provided evidence
purporting to show this. Agent Alexander testified that the attachments were
delayed because he was out of town for training, and was unable to fax the
documents. Because Azis was not sent full copies of the summonses within three
days of the banks receiving them, Agent Alexander did not comply with the
statutory requirements. See 26 U.S.C. §§ 7603(a), 7609(a)(1), (2).
However, nothing in the language of the Internal Revenue Code mandates
the non-enforcement of an IRS summons because of an infringement of the Code.
United States v. Bank of Moulton, 614 F.2d 1063, 1066 (5th Cir. 1980). Moreover,
in determining whether to enforce a summons, the district court must evaluate the
seriousness of the violation under all the circumstances, including the
government’s good faith and the degree of harm imposed by the procedural
violation. Id.Other Circuits that have addressed the issue have held that violations of the
IRS or tax regulations occurring in the course of a tax investigation do not
necessarily require summonses to be quashed. Those courts have similarly
evaluated whether the taxpayer suffered harm or prejudice, and whether the IRS’s
mistakes were made in good faith. See Adamowicz v. United States, 531 F.3d 151,
161-62 (2d Cir. 2008) (holding that “whether the government’s violation of the
[Internal Revenue Code] or an IRS regulation in connection with the issuance of a
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summons affects the enforceability of that summons depends on the totality of the
circumstances, including the seriousness of the infringement, the harm or
prejudice, if any, caused thereby, and the government’s good faith”); Robert v.
United States, 364 F.3d 988, 996-97 (8th Cir. 2004) (same); Cook v. United States,
104 F.3d 886, 889 (6th Cir. 1997) (applying a harmless error standard to determine
whether summons should be quashed based on IRS’s minor procedural error);
Sylvestre v. United States, 978 F.2d 25, 27-28 (1st Cir. 1992) (same); United States
v. Payne, 648 F.2d 361, 363 (5th Cir. Unit A June 1981) (holding that a summons
was enforceable when “improper service was, at most, technical and not serious,”
the government did not show bad faith, and the taxpayer suffered no harm or
prejudice).
After evaluating the seriousness of the infraction under all the
circumstances, including the government’s good faith and the degree of harm
imposed, we determine that the district court did not clearly err in finding that
Agent Alexander’s initial failure to provide the full summonses “was quickly cured
and no prejudice resulted.” Bank of Moulton, 614 F.2d at 1066. Agent Alexander
offered a good faith reason for not complying with the statutory requirements when
he testified that he was unable to fax the attachments because he was out of town
for training. Further, the fact that Agent Alexander faxed the attachments instead
of using the methods enumerated in § 7603(a) or § 7609(a)(2) “was, at most,
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technical and not serious.” See Payne, 648 F.2d at 363. Moreover, despite the
delay, Azis had notice of the summonses and was able to timely file his petition to
quash. He has not indicated, much less shown, any other specific harm caused by
the shortened time in which to prepare his petition to quash. Thus, Azis was not
prejudiced by the delay, and suffered no harm as a result. Bank of Moulton, 614
F.2d at 1066.
iii. Authority to Issue Summons
Next, Azis argues that, although Agent Alexander made a sworn declaration
that he was authorized to issue summonses, such declarations are subject to
verification. If the summonses are upheld as lawful, the IRS has the burden of
proving that Agent Alexander had the lawful authority to issue summonses.
As an initial matter, although Azis argues that because he contested Agent
Alexander’s assertions in his declaration, the burden of proof shifted to the IRS,
that argument is unavailing. See United States v. Southeast First Nat. Bank of
Miami Springs, 655 F.2d 661, 664 (5th Cir. Unit B Sept. 1981) (holding that the
taxpayer cannot rebut the IRS’s prima facie case for enforcement of a summons
simply by denying the existence of the Powell elements). Accordingly, the burden
remained on Azis to prove that Agent Alexander did not have lawful authority to
issue summonses. See Leventhal, 961 F.2d at 940.
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The Secretary of the Treasury, or the IRS as his designee, may issue
summonses to those in possession, custody, or care of books, papers, records, or
other data which may be relevant or material to ascertaining the correctness of any
return. La Mura, 765 F.2d at 978-79 (quoting 26 U.S.C. § 7602). The Secretary of
the Treasury has delegated summons authority to the Commissioner of the IRS. 26
C.F.R. § 301.7602-1(b); 26 C.F.R. § 301.7701-9(b). As authorized by the
Secretary, the IRS Commissioner has re-delegated this authority to the Deputy
Commissioner of the IRS. IRS Delegation Order 1-23, IRM 1.2.40.21 (Nov. 8,
2000). The Deputy Commissioner has re-delegated the authority to issue third-
party summonses to revenue agents, provided that a supervisory official at the level
of the officer’s manager or above has authorized the issuance of the summons. 26
C.F.R. § 301.7701-9(c); 26 C.F.R. § 301.7701-9(b); IRS Delegation Order No. 25-
1, 2007 WL 7300510 (Apr. 30, 2009).
Here, the summonses were approved and authorized by a supervisory
official, an IRS Group Manager. Thus, Agent Alexander was permitted to issue
the third-party summonses. See 26 C.F.R. § 301.7701-9(c); 26 C.F.R. § 301.7701-
9(b); IRS Delegation Order No. 25-1, 2007 WL 7300510 (Apr. 30, 2009).
Because Azis provided no evidence that Agent Alexander did not have lawful
authority to issue the summonses, he did not meet his “heavy” burden. See LaSalle
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Nat. Bank, 437 U.S. at 316, 98 S. Ct. at 2367; Leventhal, 961 F.2d at 940;
Southeast First Nat. Bank of Miami Springs, 655 F.2d at 664.
In sum, Azis did not meet his “heavy” burden to disprove any of the four
elements of the government’s prima facie case. See LaSalle Nat. Bank, 437 U.S. at
316, 98 S. Ct. at 2367; La Mura, 765 F.2d at 979-980. Accordingly, the district
court did not clearly err in denying Azis’s petition to quash the summonses. See
Nero Trading, 570 F.3d at 1248.
Finally, Azis argues that the district court erred in refusing to grant his
requests for discovery. He argues that discovery was necessary to determine the
true purpose and relevancy of the summonses, and that the summonses were issued
for an improper purpose.
This Court reviews the district court’s denial of discovery for abuse of
discretion. Nero Trading, 570 F.3d at 1248. “Depositions, interrogatories, and the
rest of the panoply of expensive and time-consuming pretrial discovery devices
may not be resorted to as a matter of course and on a mere allegation of improper
purpose.” Id. at 1249 (brackets omitted). “Summons enforcement proceedings
should be summary in nature, and discovery should be limited.” United States v.
Stuart, 489 U.S. 353, 369, 109 S. Ct. 1183, 1193, 103 L.Ed.2d 388 (1989).
Here, the district court did not abuse its discretion in denying Azis’s requests
for discovery. The court permitted two evidentiary hearings to allow Azis to
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examine the IRS agents to determine whether the summonses were issued for an
improper purpose. Thus, Azis had meaningful opportunities to challenge the IRS’s
allegations. The court also noted that discovery would be expensive and time
consuming. Moreover, summons enforcement proceedings should be summary in
nature.
Upon review of the record and consideration of the parties’ briefs, we
affirm.
AFFIRMED.
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