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Huene v. United States Dep't of Treasure, Internal Revenue Service

United States District Court, Ninth Circuit

November 7, 2013

DONALD HUENE, Plaintiff,
v.
UNITED STATES DEP'T OF THE TREASURE, INTERNAL REVENUE SERVICE, Defendant.

FINDINGS & RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

On November 6, 2013, the court held a hearing on the parties' cross-motions for summary judgment. Donald R. Huene appeared in pro per. Gerald A. Role appeared for defendant. On review of the motions, the documents filed in support and opposition, upon hearing the arguments of plaintiff and counsel, and good cause appearing therefor, THE COURT FINDS AS FOLLOWS:

UNDISPUTED FACTS

On December 14, 2010, plaintiff executed an IRS Form 2848, designating his certified public accountant ("CPA"), Richard L. Holland, as his power of attorney. Huene Decl., Ex. 1, ECF No. 65 at 13-14. In March 2011, plaintiff and Mr. Holland met with IRS agent Sui E. Chan at Mr. Holland's Fresno office. Huene Decl. ¶ 3; Holland Decl. ¶¶ 3-5. At this meeting, plaintiff verbally informed the IRS agent that he was revoking his power of attorney previously granted to Mr. Holland. Holland Decl. ¶ 4.

Notwithstanding the oral revocation, plaintiff wrote multiple letters to the IRS in March and April 2011 asserting that he is proceeding in propria persona, but then referring to Mr. Holland as his "co-counsel" and stating that Mr. Holland can assist plaintiff in representation:

1. On March 16, 2011, plaintiff wrote a letter to Agent Chan, stating "[y]ou do have authorization so that Mr. Holland, CPA, can assist me in representation." Shelly Decl., Ex. A, ECF No. 68-3 at 5-6.
2. On March 21, 2011, plaintiff wrote to Agent Chan, stating "As you know, I was not present during your previous meeting with R. Holland, CPA. My information would indicate that you were there for about six hours and we produced documents and papers referable to that meeting." Shelly Decl., Ex. B, ECF No. 68-3 at 7-8. This letter indicates that Mr. Holland received a courtesy copy of the letter. See id. 8.
3. On March 23, 2011, plaintiff wrote to Agent Chan, stating that "[a]s regards to our meeting, I must have R. Holland CPA accompanying me, as I previously informed you." Shelly Decl., Ex. D, ECF No. 68-3 at 10-11.
4. April 7, 2011, plaintiff wrote the following to Agent Chan:
I have now received your letter of April 5, 2011, addressed to Richard L. Holland, CPA, with no copy to me. [¶] Let me reiterate, perhaps clarify, my previous correspondence. I am appearing for your audit and all present and subsequent litigation in propria persona, and may have occasional a [sic] co-counsel with me at times. Consequently, you are hereby instructed to contact only me, the party in propria persona. You are free to copy Richard L. Holland, CPA as co-counsel, but I am the one that is the primary contact mandated by law.

Shellnoy Decl., Ex. D, ECF No. 68-3 at 13-14.

Agent Chan frequently updated her supervisor, Anthony Shelly, Supervisory Internal Revenue Agent with the IRS, on the progress of the case concerning plaintiff. Shelly Decl. ¶ 3. It was this last letter dated April 7, 2011 that confused Anthony Shelly because plaintiff had previously filed an IRS Form 2848 designating Mr. Holland as his power of attorney for the tax year under examination and he had not filed anything rescinding the power of attorney. Shelly Decl. ¶ 6. In an attempt to clarify, Anthony Shelly and Agent Chan contacted Mr. Holland on April 13, 2011 to ask whether it was indeed plaintiff's intent to revoke the power of attorney. Id . ¶ 7. Mr. Shelly asserts that Mr. Holland told him during this contact that the power of attorney was not revoked. Id . Mr. Holland refutes this assertion.[1] Holland Decl. ¶ 10.

On June 7, 2011, plaintiff wrote to Anthony Shelly:

I received a call and an email from my CPA, Richard L. Holland. You apparently have not read my previous letters. I rescinded Mr. Holland's release. I also informed Ms. Chan that the only way to reach me was by letter and I would respond promptly.... [¶] Now I found that you have phone Mr. Holland despite my telling you not to.... [¶] Because of your unauthorized communications with my CPA, I am getting bills from Mr. Holland which would not have existed had you not made the contact.

Shelly Decl., Ex. J, ECF No. 68-3 at 18.

Plaintiff wrote another letter to Anthony Shelly on July 11, 2011 regarding "a serious breach of the law on [Shelly's] part." Shelly Decl., Ex. M, ECF No. 68-3 at 24-25. Specifically, plaintiff stated:

As you know, I informed you by written expression that I was rescinding my authorization for you to contact my C.P.A., and directed you to contact me instead. The purpose was obvious: the contacts by the IRS to my accountant were costing me money, and those contacts were unnecessary and resulting in no resolution. In spite of that letter telling you that you had (and have) no authority to deal with my accountant directly, you nonetheless contacted him again, and then again. You did this knowing that his time was expensive, not to the IRS or you personally, but rather to me.

In response to this letter and because there was still confusion as to whether Mr. Holland was representing plaintiff, Anthony Shelly sent a letter to Mr. Holland (with a copy to plaintiff) on July 18, 2011 asking for clarification as to whether he was continuing as plaintiff's representative or whether plaintiff was revoking the power of attorney. Shelly Decl., Ex. N, ECF No. 68-3 at 26-27.

On July 19, 2011, plaintiff responded to Mr. Shelly's letter, stating "[f]or at least the third time, I am instructing you to have all further communication with me ...


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