United States of America, and Kyle D. Kohler, Internal Revenue Agent of the Internal Revenue Service v. Albert J. Finer

709 F.2d 1350

83-1 USTC P 9424

UNITED STATES of America, and Kyle D. Kohler, Internal
Revenue Agent of the Internal Revenue Service,
Petitioners-Appellees,
v.
Albert J. FINER, Respondent-Appellant.

No. 82-1749.

United States Court of Appeals,
Tenth Circuit.

June 16, 1983.

Gene F. Reardon of Reardon, Reardon & Reardon, Denver, Colo., for respondent-appellant.

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Carleton D. Powell, and Thomas A. Gick, Attys. of Tax Div., Dept. of Justice, Washington, D.C., for petitioners-appellees.

Before SETH, Chief Judge, and HOLLOWAY and SEYMOUR, Circuit Judges.

PER CURIAM.

1

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

2

Finer appeals from a trial court order enforcing an Internal Revenue Service summons issued during the course of a Taxpayer Compliance Measurement Program (TCMP) audit.1 The sole issue on appeal is whether the district court properly held that the Internal Revenue Service has statutory authority to issue a summons under Section 7602 of the Internal Revenue Code of 1954, 26 U.S.C. Sec. 7602 (1976), in the course of an examination of tax returns selected pursuant to the TCMP.

3

This precise issue has recently been addressed by both the Fifth and the Eighth Circuits in United States v. First National Bank, 635 F.2d 391 (5th Cir.), cert. denied, 452 U.S. 916, 101 S.Ct. 3051, 69 L.Ed.2d 420 (1981) and United States v. Flagg, 634 F.2d 1087 (8th Cir.1980), cert. denied, 451 U.S. 909, 101 S.Ct. 1977, 68 L.Ed.2d 297 (1981). Both courts held that the IRS has authority to issue such a summons. We agree with the analyses set out in those opinions. Cf. United States v. Scholbe, 664 F.2d 1163, 1167-68 (10th Cir.1981).

4

The judgment of the trial court is affirmed.

1

For an explanation of the purposes of the TCMP, see United States v. Flagg, 634 F.2d 1087, 1088-89 (8th Cir.1980), cert. denied, 451 U.S. 909, 101 S.Ct. 1977, 68 L.Ed.2d 297 (1981)