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915 F.Supp. 1227
UNITED STATES of America, Petitioner,
Larry A. HARTMAN and Marguerite C. Hartman, Respondents.
United States District Court,
Jan. 10, 1996.
Charles R. Wilson, United States Attorney, Bonnie Glober,
Assistant United States Attorney, United States Attorney's Office,
Jacksonville, FL, Benjamin A. de Luna, District Counsel, Internal Revenue
Service, Jacksonville, FL, for United States of America.
Larry A. Hartman, Floral City, FL, pro se.
Marguerite C. Hartman, Floral City, FL, pro se.
HODGES, District Judge.
This case is before the Court on the United States' petition to enforce summonses
(Doc. 1). The petition was considered by the United States Magistrate Judge
pursuant to the general order of assignment, who has filed his report (Doc.
9) recommending that the petition be granted and the summonses enforced.
The Hartmans, who style themselves as "Non-Consenting Persons," have
filed objections (Doc. 10) to the report, the primary thrust of which is
that the payment of income taxes to the United States is voluntary, and they
have not consented to make such payments.
Accordingly, upon this Court's independent examination of the file and upon
due consideration of the Magistrate Judge's report and recommendation, the
report and recommendation is adopted, confirmed and made a part hereof. The
petition (Doc. 1) is GRANTED, and the summonses which are the subject of the
petition shall be enforced as issued, and the Hartmans are directed to forthwith
comply with those summonses as directed by the issuing Revenue Officer.
IT IS SO ORDERED.
DONE and ORDERED.
REPORT AND RECOMMENDATION [FN1]
FN1. Specific, written objections may be filed within ten (10) days after
service of this document. Rule 6.02, Local Rules, United States District Court,
Middle District of Florida. Failure to timely serve objections shall bar the
party from a de novo determination by a district judge and from attacking factual
findings on appeal.
SNYDER, United States Magistrate Judge. This cause is before the Court on
the United States' Petition to Enforce Internal Revenue Service Summonses (Doc.
# 1; hereinafter Petition), filed on August 23, 1995. According to the Declaration
of C. Little, Revenue Officer, Internal Revenue Service (hereinafter Declaration),
attached to the Petition as Exhibit A, two Internal Revenue Service (hereinafter
IRS) summonses were issued by the revenue officer to Larry A. Hartman and Marguerite
C. Hartman. The summonses were issued as part of an IRS investigation into
the Respondents' tax liability and required them to appear on July 1, 1994,
and provide testimony as well as books, records, papers or other data.
An Order to Show Cause (Doc. # 2) was entered by the undersigned on August
30, 1995, directing the Respondents to appear and answer why they should not
be compelled to obey the IRS summonses served. It also ordered them to respond
to the Petition. On October 4, 1995, at the show cause hearing, Respondents
filed their Court Order Refused for Cause Without Dishonor (in affidavit form)
(Doc. # 5; hereinafter Response). In their Response Mr. and Mrs. Hartman indicated
they were refusing to "accept the Court's Show Cause Order." Id.
at 1. Respondents' refusal was based upon the following claims: (1) the summonses
did not provide the required implementing regulations; (2) the summonses did
not grant use immunity for the testimonies sought; (3) that C. Little is not
an individual authorized to perform functions listed in 26 U.S.C. s 7608; and
(4) several arguments that the regulations applicable to the Internal Revenue
Code do not require them to pay taxes. The show cause hearing on this matter
was continued until October 20, 1995, at which time the Respondents argued
they were not required to comply with the summonses because the payment of
income taxes in the United States is voluntary.
Title 26, United States Code, ss 7402(b) and 7604(a), provide jurisdiction
to the district courts to issue appropriate process for enforcement of
Internal Revenue Service summonses. To obtain judicial enforcement of a summons,
Internal Revenue Service must establish: (1) the investigation is being
conducted for a legitimate purpose; (2) the inquiry may be relevant to that
(3) the information sought is not already in the IRS' possession; and (4)
the administrative steps required by the Internal Revenue Code have been
followed. United States v. Medlin, 986 F.2d 463, 466 (11th Cir.), cert.
denied, 510 U.S. 933, 114 S.Ct. 347, 126 L.Ed.2d 311 (1993); United States
961 F.2d 936, 939 (11th Cir.1992) (per curiam). "The IRS may satisfy
its minimal burden 'merely by presenting the sworn affidavit of the agent
who issued the summons attesting to those facts.' " Medlin, 986 F.2d
at 466 (quoting La Mura v. United States, 765 F.2d 974, 979 (11th Cir.1985)).
Once the IRS has made this showing, "the burden shifts to the party
contesting the summons to disprove one of the four elements of the government's
prima facie showing or convince the court that enforcement of the summons
would constitute an abuse of the court's process." La Mura, 765 F.2d
at 979-80. The United States has Made a Prima Facie Showing Revenue Officer
Little declares under penalty of perjury that an investigation is being conducted "to
determine the tax liability of the respondents, Larry A. and Marguerite C.
Hartman, for the years 1986 through 1993, for which years no individual income
tax returns have been filed." Declaration at 1. Such a purpose is specifically
endorsed in the statute giving rise to the power to issue summonses. See
26 U.S.C. s 7602(a). It is further declared the instant summonses were issued
in furtherance of the investigation and that they are necessary to obtain
the Hartmans' testimony and examination of the requested documents to properly
determine the Respondents' tax liability. Declaration at 1, 3. Therefore,
the proposed inquiry is relevant to the revenue officer's investigation.
Revenue Officer Little avers: Except for some Forms W-2, Wage and Tax Statement,
and Forms 1099, which may already be in the possession of the [IRS], but which
are not readily accessible without undue administrative burden and expense,
the information, books, records, papers and other data sought by the summonses
are not already in the possession of the [IRS] for the years 1986 through 1993.
The [IRS], is however, in possession of some wage income information for Marguerite
Hartman for the years 1991 and 1992. Declaration at 2-3. It is stated "[a]ll
administrative steps required by the Internal Revenue Code for issuance of
... summons[es] have been taken," id. at 3, and that "[a] Justice
Department referral, as defined by Section 7602(c)(2) of the Internal Revenue
Code of 1986, is not in effect with respect to Larry A. Hartman or Marguerite
C. Hartman for the years under investigation." Id. Because Revenue Officer
Little's Declaration addresses each of the elements outlined above, the United
States, on behalf of the IRS, has met its burden of making a prima facie showing
the summonses were properly issued and should be enforced.
Respondents, a gospel minister and his wife, contend they are neither tax
evaders nor tax protesters. They state it remains their wish "to comply with
all laws which apply to us, and pay any and all taxes for which we are liable." Response
at 5. The Hartmans assert, however, that "[t]hrough our years of study
of the U.S. Constitution and the IRS Code, we have come to understand and
fully believe that 'voluntary compliance' to the tax code is without obligation
or mandatory requirement. Therefore, we have no tax liability or requirement
to file a 1040 return." Id. Stated another way, in one of the exhibits
Respondents presented to the Court, "[s]ince [the income tax system]
is based on 'voluntary compliance', we choose not to 'volunteer'." Exhibit
G, attached to Response.
Any assertion that the payment of income taxes is voluntary is without merit.
It is without question that the payment of income taxes is not voluntary. United
States v. Gerads, 999 F.2d 1255, 1256 (8th Cir.1993) (per curiam); Wilcox v.
Commissioner of Internal Revenue, 848 F.2d 1007, 1008 (9th Cir.1988). The assertion
that the filing of an income tax return is voluntary is, likewise, frivolous.
Title 26, United States Code, Section 6012(a)(1)(A), "requires that every
individual who earns a threshold level of income must file a tax return." United
States v. Pottorf, 769 F.Supp. 1176, 1183 (D.Kan.1991). Failure to file an
income tax return subjects an individual to criminal penalty. Id. (citing 26
U.S.C. s 7203).
Lack of Implementing Regulations
Respondents argue the summonses are deficient because they do not provide "the
required implementing regulations." Response at 1. It is asserted the
only regulation corresponding with the Internal Revenue Code sections authorizing
summonses to be issued "deal[ ] exclusively with taxable alcohol, tobacco,
or firearm activities. The IRS records show, or should show, that we are not
involved in any taxable alcohol, tobacco or firearm activities." Id. at
The Internal Revenue Code authorizes the Secretary of the Treasury to issue
administrative summonses for the purpose of ascertaining the correctness of
any return or determining the liability of any person for any internal revenue
tax. 26 U.S.C. s 7602. The Internal Revenue Service is not required to make
any showing of tax liability as a prerequisite to the issuance of an administrative
summons. The authority to issue administrative summonses is part of the Secretary's
broad statutory charge to "inquire after and concerning all persons ...
who may be liable to pay any internal revenue tax." Id. s 7601. Respondents'
contention that the summonses cannot be enforced because no implementing regulations
have been promulgated concerning the issuance of IRS summonses is incorrect.
Madge v. United States, Consolidated Misc. File No. 3-94-34, 1995 WL 313653,
1995 U.S.Dist. LEXIS 2355 (D.Minn. February 13, 1995) ("With respect to
the assertion that no regulations have implemented the statute, the Court finds
as a matter of law that no implementing regulations are necessary for a statute
empowering the IRS to issue summonses"); see also Cocozza v. United States,
Case No. 95-2529, 1995 WL 610684, 1995 U.S.Dist. LEXIS 12660 (E.D.Pa. August
14, 1995); United States v. Stoecklin, 848 F.Supp. 1521, 1525-26 (M.D.Fla.1994).
Revenue Officer's Authority to Issue Summonses
The contention that the revenue officer lacked the authority to issue the
summonses in this matter is likewise without merit. Revenue officers of the
Revenue Service are authorized to serve summonses under the authority of
the United States. 26 U.S.C. s 7608(a); Stoecklin, 848 F.Supp. at 1527.
The Response filed by Respondents states: [T]he U.S. Supreme Court has established
that the act of producing information by way of testimony or documents
cannot be compelled without a (bona fide) grant of use immunity by the agency
the U.S. Government making the request, and that it was proper for the
Court to reject the Government's attempt to compel delivery of documents when
Government failed to make a formal request for use immunity under 18 U.S.C.
Sections 6002 and 6003 (U.S. v. Doe, 465 U.S. 605 [104 S.Ct. 1237, 79 L.Ed.2d
552] (1984)). No grant of use immunity was included with the Summons, nor
was there any evidence that a formal request was made by C.L. Little to
a person competent to provide such immunity. Response at 4.
Respondents' argument misses the mark. The determination of whether to request
use immunity is within the discretion of the United States under 18 U.S.C.
ss 6002 and 6003. Absent a grant of use immunity, the Hartmans must assert,
if they reasonably believe it to be applicable, their Fifth Amendment privilege
if they wish not to provide self-incriminating information. Furthermore, "a
blanket refusal to produce records or to testify will not support a fifth amendment
claim." United States v. Argomaniz, 925 F.2d 1349, 1356 (11th Cir.1991)
(citing United States v. Roundtree, 420 F.2d 845, 852 (5th Cir.1969)). Instead,
the taxpayer must respond to the summons and " 'present himself with his
records for questioning, and as to each question and each record elect to raise
or not to raise the defense.' " Id. (quoting Roundtree, 420 F.2d at 852).
Despite their apparent knowledge of this rule, see Exhibit I, attached to Response,
at [unnumbered] 3- 4, Respondents have yet to assert specifically their Fifth
Amendment privilege against self-incrimination; thus, the Court need not address
this issue at present.
Based on the foregoing, it is recommended:
(1) the Petition (Doc. # 1) be GRANTED;
(2) the summonses which are the subject of the Petition be ENFORCED as issued,
and that Respondents be directed to comply with same forthwith.
ENTERED at Jacksonville, Florida, this 8th day of December, 1995.
to Tax Protestor Exhibit