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Belcik v. United States

United States District Court, N.D. Alabama, Southern Division

August 24, 2018

JOSEPH A. BELCIK, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This 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 granted.

         I. Factual and Procedural Background

         John 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).

         On May 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).

         In May 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. at 36-39).

         II. Analysis

         As explained below, Petitioner offers no arguable basis for quashing the IRS's summonses.[1]

         A. Petitioner's Fourth Amendment Challenge to the Summonses Fails

         Petitioner 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.

         B. Petitioner's Fifth Amendment Challenge to the Summonses Fails

         Petitioner 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 subpoenas.

         To 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 inapplicable here.

         C. Petitioner Has Failed to Rebut the IRS's Evidence that It ...


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