United States District Court, N.D. Alabama, Southern Division
JOSEPH A. BELCIK, Petitioner,
UNITED STATES OF AMERICA, et al., Respondents.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
miscellaneous action is before the court on: (1)
Petitioner's Complaint to Quash (Doc. # 2); (2) the
Motion to Dismiss filed by Respondent Bank of America (Doc. #
6); (3) the Motion to Dismiss Petition to Quash, or,
Alternatively, Motion for Summary Judgment filed by
Respondents United States of America, John Randall Clark, and
Dan Itchue (Doc. # 12); and (4) the Motion for Leave to File
Revised Evidentiary Submission in Place of the Prior Filed
Evidentiary Submission filed by Respondents United States,
Clark, and Itchue (Doc. # 15). Petitioner has responded to
Bank of America's motion to dismiss (Doc. # 7), and
Petitioner has responded to the court's September 2017
Show Cause Order. (Doc. #11). On March 27, 2018, the court
held a telephone status conference on the record, during
which the court and the parties discussed the pending
miscellaneous action, Petitioner seeks to quash two
administrative summonses issued by Internal Revenue Service
(“IRS”) employee Clark to Respondents Bank of
America and Regions Bank. Petitioner insists that the
summonses violate the Internal Revenue Code, the Fourth
Amendment, and the Fifth Amendment. Respondent Bank of
America seeks dismissal because it argues that no claim has
been asserted against it. Respondent United States seeks
dismissal on the grounds that Petitioner has failed to
properly serve it and Petitioner has failed to state a ground
Respondents Bank of America and Regions Bank are Due to be
has argued that Respondent Bank of America violated an
automatic stay of the summons provided for in 26 U.S.C.
§ 7609(d) when it submitted bank records to the IRS on
May 26, 2017. (Doc. # 7 at 2). Respondent Clark has confirmed
that Respondent Bank of America submitted records to the IRS
in response to the summons. (Doc. # 15-2 at 3). But, Clark
has not examined the records and has securely stored them
away due to this pending action. (Id.). Respondent
Regions Bank has produced no responsive records to Clark.
(Id.). After careful review, the court concludes
that Bank of America and Regions Bank are due to be dismissed
from the action for two reasons.
Bank of America and Regions Bank are not proper respondents
to a petition to quash filed under § 7609. Several
courts have concluded that the United States is the only
proper respondent to a petition to quash filed under §
7609. Wood v. United States, No. JKB-15-3311, 2016
WL 3027530, at *1 n. 2 (D. Md. May 27, 2016) (dismissing the
IRS's commissioner and an IRS agent as respondents);
Brown v. United States, No. 5:11-CV-143-D, 2011 WL
2470732, at *1 n. 1 (E.D. N.C. June 20, 2011) (observing that
the United States is the only proper respondent to a petition
to quash an IRS third-party summons), adopted, 2011
WL 4090931 (E.D. N.C. Aug. 15, 2011); Putnam v. United
States, No. RWT-09-CV-1229, 2009 WL 2447944, at *1 n. 1
(D. Md. Aug. 4, 2009) (same). In light of this persuasive
authority, Respondents Bank of America and Regions Bank are
due to be dismissed from this action.
the court concludes that Petitioner has failed to allege any
viable claim against Bank of America or Regions Bank.
Petitioner has offered no explanation regarding how Regions
violated § 7609 (see generally Doc. # 2), and
Clark's affidavit testimony demonstrates that Regions
submitted no materials to the IRS in response to the summons.
Petitioner argues that Bank of America violated the
restriction on examining records when it submitted records to
the IRS. But, § 7609 of the Internal Revenue Code only
provides for quashing a summons, and it does not establish a
private cause of action for monetary or injunctive relief
against a private party such as Bank of America or Regions.
See Zajac v. Clark, No. 2:13-cv-714-FtM-29DNF, 2015
WL 179333, at *8 (M.D. Fla. Jan. 14, 2015); Tift v.
I.R.S., No. Co8-332MJP, 2008 WL 2397537, at *3 (W.D.
Wash. June 10, 2008). Because the court finds no private
cause of action in § 7609 to authorize a suit against
Respondents Bank of America or Regions, Respondents Bank of
America and Regions Bank are due to be dismissed from this
action, and Bank of America's Motion to Dismiss (Doc. #
6) is due to be granted.
Petitioner Has Not Properly Served the United States
United States has moved for the court to dismiss this action
for improper service. (Doc. # 14 at 6-8). As the court
explained to Petitioner during the status conference, it
agrees with the Government that a petitioner filing a
proceeding to quash must provide notice in accordance with
§ 7609(b)(2)(B) and serve the United States
within ninety days pursuant to Federal Rule of Civil
Procedure 4(i). Mollison v. United States, 568 F.3d
1073, 1076 (9th Cir. 2009) (explaining that a petitioner must
mail the petition to quash to the parties identified in the
summons and serve the United States in accordance with Rule
4); Faber v. United States, 69 F.Supp.2d 965, 966-67
(W.D. Mich. 1999) (explaining that the petitioner was not
entitled to a default ruling in his favor because he had not
served the United States according to Rule 4(i)); Zajac
v. United States, No. 2:11-cv-469-FtM-29SPC, 2011 WL
7485386, at *2-3 (M.D. Fla. Sept. 21, 2011) (concluding that
the court lacked personal jurisdiction over the United States
because the petitioner never served the United States in
accordance with Rule 4(i)). In light of Petitioner's
pro se status and the uniqueness of the service
rules applicable to this action, the court finds good cause
to grant him additional time to complete service, if he
intends to go forward with this action.
Petitioner Must Respond to the United States' Prima
Facie Case of Good Faith
has challenged the summonses under § 7609. The United
States has responded that Clark properly issued the summonses
pursuant to a delegation of authority. (Doc. # 14 at 5-6).
Because the summonses have been 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 United States v. Powell, 379 U.S.
48, 57-59 (1964); United States v. Centennial Builders,
Inc., 747 F.2d 678, 680 (11th Cir. 1984); Matter of
Newton, 718 F.2d 1015, 1019 (11th Cir. 1983)).
“The IRS can satisfy this burden merely by presenting
the sworn affidavit of the agent who issued the summons
attesting to these facts.” Id. To show that
enforcing the summons would constitute an abuse of process,
the petitioner challenging it must disprove one of the
elements of the prima facie showing. Id. at
to quash an IRS third-party summons, while adversarial, are
generally “summary in nature.” United States
v. Clarke, 134 S.Ct. 2361, 2367 (2014) (quoting
UnitedStates v. Stuart, 489 U.S. 353, 369
(1989)). The petitioner may present arguments and evidence to
contest the validity of the summons. Id. ...