United States District Court, N.D. Alabama, Southern Division
JOSEPH A. BELCIK, Petitioner,
UNITED STATES OF AMERICA, Respondent.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Petitioner's Complaint to
Quash (Doc. # 2), Respondent's Motion to Dismiss Petition
to Quash, or, Alternatively, Motion for Summary Judgment
(Doc. # 12), Respondent's Motion for Leave to File
Supplemental Declaration of John Clark, Internal Revenue
Agent (Doc. # 18), and Petitioner's Motion to Quash (Doc.
# 23). The parties have fully briefed the issues in this case
(see Docs. # 2, 14, 18, 21, 23), and it is ripe for
review. After careful review, and for the reasons explained
below, the court concludes that Petitioner's petition and
motion (Docs. # 2, 23) are due to be denied, and
Respondent's motions (Docs. # 12, 18) are due to be
Factual and Procedural Background
Clark, a revenue agent employed by the Internal Revenue
Service (“IRS”), investigated Petitioner to
determine whether he owed federal individual income tax for
the year 2016. (Doc. # 13-1 at 2). On April 19, 2017, Clark
informed Petitioner by letter that the IRS had not received a
federal income tax return from him. (Doc. # 18-1 at 2). Clark
sent Petitioner an IRS publication informing him that the IRS
might contact third parties during the investigation.
(Id. at 3, 6).
1, 2017, Clark issued summonses to Bank of America and
Regions Bank pursuant to 26 U.S.C. § 7602. (Doc. # 13-1
at 2-3). Clark demanded records for all accounts, loans, and
credit devices issued to Petitioner. (Id.). Clark
provided notice of the summonses to Petitioner at his last
known address. (Id. at 3). Clark received records
from Bank of America, but no records from Regions Bank.
(Id.). Clark avers that he needs to examine the
records to properly determine Petitioner's income tax
liability for the year 2016 and that the IRS does not
currently possess the books, papers, and records received
from Bank of America. (Id.). The summonses reflect
that Clark issued them and Daniel Itchue, a supervisory
internal revenue agent, approved them. (See Doc. #
13-2 at 2; 13-3 at 2).
2017, Petitioner sought to quash the summonses issued to Bank
of America and Regions Bank. (See Doc. # 2).
Petitioner claims in his Complaint to Quash that Clark lacked
authority to issue a summons on behalf of the IRS and the
United States. (Id. at 3-5). Petitioner also claims
that the summonses violate 26 U.S.C. § 7609 and the
Fourth and Fifth Amendments. (Id. at 4-6). In an
April 2018 opposition brief, Petitioner argues that Clark
failed to inform him of the IRS's ability to contact
third parties before he issued the summonses to Bank of
America and Regions Bank because Clark used an outdated IRS
publication. (Doc. # 21 at 1-5). In his May 2018 Motion to
Quash, Petitioner contends that Clark and Itchue lacked any
authority to issue the summonses because he does not have a
“pocket commission.” (See Doc. # 23 at
1). Moreover, Petitioner contends that the IRS's chief
counsel never reviewed the summonses before issuance.
(See Id. at 20). Finally, Petitioner seeks an
evidentiary hearing to investigate whether Clark and Itchue
acted in bad faith when issuing the summonses. (Id.
explained below, Petitioner offers no arguable basis for
quashing the IRS's summonses.
Petitioner's Fourth Amendment Challenge to the Summonses
argues that the IRS's summonses to Bank of America and
Regions Bank violate his Fourth Amendment rights. (See,
e.g., Doc. # 2 at 6). The Eleventh Circuit recently
considered and rejected a Fourth Amendment challenge to an
IRS summons directed towards a bank because the third-party
doctrine precludes any argument that the taxpayer has a
reasonable expectation of privacy in those records.
Presley v. United States, 895 F.3d 1284, 1291 (11th
Cir. 2018). Likewise, Petitioner's Fourth Amendment
challenge to the summonses at issue here fails.
Petitioner's Fifth Amendment Challenge to the Summonses
argues that the IRS's summonses to Bank of America and
Regions Bank violate the Fifth Amendment. (See,
e.g., Doc. # 2 at 4). To the extent Petitioner intends
to raise a self-incrimination claim, this constitutional
claim also is barred by prior Eleventh Circuit precedent. In
United States v. Centennial Builders, Inc., 747 F.2d
678 (11th Cir. 1984), the Eleventh Circuit ruled that an IRS
summons issued to a third party cannot implicate a
taxpayer's Fifth Amendment privilege against
self-incrimination because “a taxpayer cannot assert
the privilege if the summons seeks no testimony or
information from the taxpayer.” Id. at 683.
Clearly, the IRS's summonses to Bank of America and
Regions Bank seek no testimony or records from Petitioner
himself. Therefore, Petitioner's Fifth Amendment right
against self-incrimination is not implicated by the
extent Petitioner is arguing for a right to cross-examine the
banks (or their employees) as adverse witnesses (see
Doc. # 2 at 4), Petitioner cannot raise a Confrontation
Clause claim in this proceeding. It is well settled that the
Sixth Amendment's constitutional protections, including
the Confrontation Clause, are limited to criminal
prosecutions. United States v. Ward, 448
U.S. 242, 248 (1980); U.S. Steel, LLC v. Tieco,
Inc., 261 F.3d 1275, 1287 n. 13 (11th Cir. 2001)
(“Of course, the Confrontation Clause is not applicable
to civil cases . . . .”). Petitioner's petition to
quash the IRS's summonses is a civil proceeding. See
Anaya v. United States, 815 F.2d 1373, 1375
(10th Cir. 1987) (emphasizing that a proceeding under 26
U.S.C. § 7609 is a civil proceeding). Therefore, the
Sixth Amendment's constitutional protections simply are
Petitioner Has Failed to Rebut the IRS's Evidence that It