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Moyes v. United States

August 30, 2010

RANDALL S. MOYES, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING PETITIONER'S MOTION TO QUASH; DENYING PETITIONER'S MOTION TO STRIKE; AND GRANTING RESPONDENT'S MOTION TO DISMISS

Docket Nos. 7, 8

I. INTRODUCTION

A. Procedural Background

Randall Moyes ("Moyes" or "Petitioner") filed this action on April 23, 2010, seeking to quash a third-party summons issued by the Internal Revenue Service ("IRS"). On June 25, 2010, Respondent, United States of America, filed a "Motion to Dismiss"*fn1 on behalf of the IRS opposing Moyes' motion to quash, asserting that Moyes failed to carry his burden of showing that the IRS was acting in bad faith by issuing the third-party summons. Moyes filed a Motion to Strike portions of Respondent's opposition to his petition. It is Moyes' motions to quash the administrative summons and to strike portions of Respondent's opposition that are currently pending before the Court.*fn2

B. Factual Background

Moyes alleges that the IRS has improperly issued a third-party summons for information and records pertaining to his Union Bank account.

According to Respondent, the IRS has been conducting an investigation to determine Moyes' federal income tax liabilities for the 2002 through 2008 tax years. Respondent is informed and believes that Moyes is allocating taxable income to a Roth IRA and is not reporting income on any personal federal income tax returns.

On November 20, 2008, as part of the IRS's investigation, Revenue Agent Barfels ("Barfels") mailed Moyes a notice that the IRS would be contacting third parties regarding the investigation. On May 8, 2009, Barfels served an administrative summons on the First Regional Bank of Carlsbad. The bank provided copies of documents showing that Moyes has a bank account at Union Bank in Vallejo, California. On April 7, 2010, Barfels served an administrative summons on Union Bank to examine Moyes' account transactions. On that same day, Barfels sent Moyes notice of issuance of the summons to Union Bank.

Moyes moves to quash the third-party summons issued to Union Bank. Moyes argues that the IRS has no jurisdiction over him because it is not a valid federal agency created by positive law. Moyes further avers that the IRS violated 26 U.S.C. § 7602 by failing to send notice of summons to him prior to sending the summons to the third party. Moyes maintains that his right to privacy would be violated if his personal financial information were released, and he argues that disclosure of his Union Bank records would violate his Fourth, Fifth, and Fourteenth Amendment rights.

II. DISCUSSION

A. Legal Standard

The district court has jurisdiction to hear and decide a motion to quash a summons issued to a third-party record keeper. 26 U.S.C. §§ 7609(b)(2), 7609(h)(1); see Liberty Fin. Servs. v. United States, 778 F.2d 1390, 1392 (9th Cir. 1985), cert. denied, 492 U.S. 906 (1989). In any proceeding to quash a summons, the government may seek to compel compliance with the summons. 26 U.S.C. § 7609(b)(2)(A). In order to establish a prima facie case for enforcement of a summons, the government must "make a 'minimal' showing that it issued the summons for a legitimate purpose, and that the information sought in the summons was relevant to that purpose." United States v. Abrahams, 905 F.2d 1276, 1280 (9th Cir. 1990). "Assertions by affidavit of the investigating agent that the requirements are satisfied are sufficient to make the prima facie ...


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