U.S. v. Berney, s. 82-1040

Decision Date15 July 1983
Docket Number82-1041,Nos. 82-1040,s. 82-1040
Citation713 F.2d 568
Parties83-2 USTC P 9494 UNITED STATES of America and J. Boyd Gee, Revenue Agent, Internal Revenue Service, Plaintiff-Appellee, v. Peter E. BERNEY and Rebecca A. Berney, Defendants-Appellants. UNITED STATES of America and J. Boyd Gee, Agent, Internal Revenue Service, Plaintiff-Appellee, v. Peter E. BERNEY, as President of S.P.C. Financial Services, Inc., and S.P.C. Financial Services, Inc., Defendants-Appellants.
CourtU.S. Court of Appeals — Tenth Circuit

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Charles E. Brookhart and Michael J. Roach, Attys., Tax Division, Dept. of Justice, Washington, D.C., Brent D. Ward, U.S. Atty., Salt Lake City, Utah, for plaintiff-appellee.

H. Delbert Welker, Murray, Utah, for defendants-appellants.

Before SETH, Chief Judge, and BARRETT and McKAY, Circuit Judges.

BARRETT, Circuit Judge.

Peter E. Berney and Rebecca A. Berney, taxpayers, and S.P.C. Financial Services, Inc. (S.P.C.) appeal from an order of the district court enforcing two Internal Revenue Service (IRS) summonses.

On May 13, 1980, J. Boyd Gee, an IRS agent, issued two summonses to the Berneys. The first summons related to an investigation of the Berneys' personal tax liability of 1977 and 1978. This summons required the Berneys to produce various On October 6, 1980, petitions to enforce the summonses were filed and an order to show cause in each case was served on the Berneys the following day. On November 4, 1980, a hearing on the order to show cause was held before the United States Magistrate. Although the Berneys did not personally appear, they were represented by counsel. During the hearing, counsel for Berneys argued for the first time that the summonses should not be enforced because the IRS had failed to comply with the Privacy Act of 1974, 5 U.S.C.A. § 552a. Counsel also argued that the summonses were overly broad, and lacked particularity and dates.

                bank records including bank statements, cancelled checks, deposit slips, general ledgers, journals, and other data supporting their income and deductions.   The summons also required the Berneys to provide the name, address, and identification number of all foreign and domestic trusts of which the Berneys were grantors, settlors, trustees or beneficiaries.   The second summons related to an investigation into the tax liability of S.P.C. for 1978.   It required S.P.C. and Peter Berney, its president, to produce certain corporate records as well as copies of the minutes of all meetings of the board of directors and shareholders for 1978
                

At the conclusion of the hearing the magistrate requested that the United States Attorney research the law delineating the necessity of the IRS to comply with the Privacy Act under the facts herein and to submit a memorandum within fifteen days.

The United States did not submit a memorandum within the requested fifteen days. Upon inquiry from the magistrate, the Assistant United States Attorney reported difficulty in her research "because no applicable law could be found" but that "research would be pursued diligently and a memorandum would be submitted soon."

On January 22, 1981, at a time when the United States had still not filed the requested memorandum, the Berneys moved to dismiss for failure to prosecute. A motion hearing was held on February 3, 1981 at which time the United States Attorney submitted the requested memorandum.

Thereafter, in denying the Berneys' motion to dismiss, the magistrate found: the Government's memorandum was submitted 2 1/2 months after the time ordered; under Fed.R.Civ.P. 41(b) the court had discretionary authority to dismiss an action for failure to prosecute; there was no precise rule as to what circumstances justify a dismissal for failure to prosecute; the delay in the case was "particularly improper, since the court [was] admonished by the Congress to expedite Internal Revenue Service summons enforcement proceedings"; the United States Attorney was making an effort to submit the required memorandum and the issue raised was unique; and, without condoning the delinquency surrounding the submission of the memorandum, the requested dismissal would be unduly harsh and not warranted.

The district court accepted the magistrate's recommendation and denied the motion to dismiss. The Berneys' subsequent appeal from this order was dismissed for lack of appellate jurisdiction upon the ground that the district court's order was not a final order. Upon remand, the magistrate entered a second report and recommendation in which he found that the documents sought by the IRS were relevant to a reasonable inquiry of the Berneys' potential tax liability; the Privacy Act contained specific remedies for noncompliance; and that whether the IRS had complied with the Privacy Act is not a defense in a summons enforcement proceeding.

On December 8, 1981 the district court entered an order adopting the magistrate's report and recommendations. The court then ordered the Berneys to comply with the summonses.

On appeal the Berneys contend: (1) the petition enforcing the summonses should fail due to the IRS's failure to comply with rule 5(e) of the district court; (2) the summons issued to the Berneys was defective for being vague and overbroad; and (3) the IRS did not comply with the Privacy Act of

1974 by its failure to respond to their questions.

I.

Berneys contend that the district court erred in refusing to dismiss the summons enforcement proceedings for lack of prosecution. Berneys argue that the IRS's petition for enforcement should have been dismissed after the United States Attorney failed to submit the memorandum on time in accordance with rule 5(e) of the Civil Rules of Practice of the United States District Court for the District of Utah. Berneys further argue that "[t]he rule [5(e) ] does not state any penalties or offer any remedies for noncompliance. Respondents are therefore entitled to an order to dismiss appellees' petition for failure to prosecute pursuant to Rule 5(e)." We disagree.

A district court may, within its sound discretion, dismiss an action for want of prosecution. We will reverse the court's decision only when there is an abuse of that discretion. Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Petty v. Manpower, Inc., 591 F.2d 615 (10th Cir.1979); Stanley v. Continental Oil Company, 536 F.2d 914 (10th Cir.1976); Davis v. Operation Amigo, Inc., 378 F.2d 101 (10th Cir.1967). In Davis, supra, we stated:

There is no dispute about the applicable law.

Both under Rule 41(b), F.R.Civ.P. and the inherent power of a judge, a case may be dismissed with prejudice for want of prosecution. The exercise of this power by the trial judge is discretionary and should be sustained upon appeal in the absence of abuse. A dismissal, with prejudice, is a harsh sanction and should be resorted to only in extreme cases. No precise rule can be laid down as to what circumstances justify a dismissal for failure to prosecute but the procedural history of each case must be examined in order to make such determination. The judge must be ever mindful that the policy of the law favors the hearing of a litigant's claim upon the merits.

378 F.2d at p. 103. (Footnotes omitted).

We hold that the district court properly exercised its discretion in denying the Berneys' motion to dismiss. The issue raised by the Berneys, i.e., the availability of the Privacy Act as a defense in an IRS summons enforcement proceeding, was, as observed by the magistrate, "unique". Furthermore, there is nothing to indicate that the 2 1/2 month delay occasioned by the late filing of the requested memorandum was prejudicial to the Berneys, particularly when the initial hearing to show cause was continued by stipulation of the parties.

II.

Berneys contend that the summons issued to them in conjunction with the IRS investigation of their personal returns for 1977 and 1978 "is defective for being vague and overbroad in requesting documents not relevant for a legitimate purpose."

The challenged summons, issued pursuant to I.R.C. § 7602 (1976), specifically requested:

Bank statements, cancelled checks and deposit slips for the period beginning 1/2/1977 and ending 12/31/78 for all checking accounts that the persons named above have signature authority over. Also the withdrawal and deposit slips for savings accounts and a schedule of loans and loan payments where the persons named above have had signature authority. All accounting records such as general ledgers, journals, workpapers, schedules and other recordings of transactions that support the income and deductions of the above named persons business operations.

All notes or contracts owned and in force for the period beginning 1/2/1977 and ending 12/31/1978.

The original securities owned and still in possession of the above named persons and all securities bought and sold with copies of brokerage transaction statements Name, address and Federal Employer identification number for all domestic trusts created by you or where you are designated as the Grantor, Settlor, Trustee or Beneficiary.

for the period beginning 1/2/1977 and ending 12/31/1978.

Name, address and Federal Employer identification number for all Foreign Trust created by you or where you are designated as the Grantor, Settlor, Trustee or Beneficiary.

[R., Vol. I at p. 7]. We reject the Berneys' allegation that the summons was defective for vagueness. The summons sets forth with sufficient particularity the information requested.

The summoning power afforded the IRS under § 7602 has been repeatedly recognized. In United States v. MacKay, 608 F.2d 830, 832 (10th Cir.1979), we stated:

I.R.C. § 7602 is relatively broad. It authorizes the summoning of taxpayer's books and records to ascertain the correctness of any return, making a return (where none has been made), determining the liability of any person for any internal...

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