Application of Howard

• Decision Date: 23 December 1963
• Docket Number: No. 14272.,14272.
• Citation: 325 F.2d 917
• Parties: Application of John A. HOWARD to Quash Summons Issued to Him by the Internal Revenue Service in Connection with His Tax Liability and to Vacate the Service in Connection with His Tax Liability and for a Temporary Stay of the Special Agents Hearing Pending Decision of the Application to Quash and Vacate. United States of America, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

325 F.2d 917 (1963)

Application of John A. HOWARD to Quash Summons Issued to Him by the Internal Revenue Service in Connection with His Tax Liability and to Vacate the Service in Connection with His Tax Liability and for a Temporary Stay of the Special Agents Hearing Pending Decision of the Application to Quash and Vacate United States of America, Appellant.

No. 14272.

United States Court of Appeals Third Circuit.

Argued October 17, 1963.

Decided December 23, 1963.

Richard M. Roberts, Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph M. Howard, Burton Berkley, Attys., Dept. of Justice, Washington, D. C., Gustave Diamond, U. S. Atty., Thomas J. Shannon, Asst. U. S. Atty., on the brief), for appellant.

John A. DeMay, Pittsburgh, Pa. (McArdle, Harrington & McLaughlin, Pittsburgh, Pa., on the brief), for appellee.

Before McLAUGHLIN, HASTIE and FORMAN, Circuit Judges.

HASTIE, Circuit Judge.

To facilitate an inquiry into a taxpayer's possible persisting income tax liability, special agent William Ankron of the Internal Revenue Service, acting under authority of section 7602 of the 1954 Internal Revenue Code, signed and served on John Howard an administrative summons, requiring him to appear before Ankron at a stipulated time and place and to produce his business records and accounts for a period of four years, three of which were "closed years" in that the normal three-year statute of limitations had run against the assessment of tax deficiencies. Howard then filed as an original pleading in the district court this "Application to Quash" the administrative summons. He named no defendant and did not request that process be issued against anyone. In some manner the United States Attorney and special agent Ankron were notified of this filing and the United States Attorney filed a responsive pleading in behalf of the United States, both challenging the jurisdiction of the court and asserting that on the merits the summons was valid and enforceable. The district court found the proceeding a proper one and, on the merits, ordered the administrative summons quashed as to the closed years. The United States has appealed.

On its merits this controversy involves a number of considerations that are discussed in an opinion we have filed today in United States v. Powell, 3 Cir., 325 F.2d 914. However, in this case we are unable to reach the merits.

Rules 2, 3, 8 and 10 of the Federal Rules of Civil Procedure restrict original civil proceedings¹ in a district court to a single form of action, commenced by a complaint naming the parties, stating the basis of the court's jurisdiction and demanding specified relief against someone.

The application which instituted this original civil proceeding is deficient in all of these respects. It names no defendant, states no basis of jurisdiction and asks for no judgment against anyone. It asks merely for a "hearing" and that the "court quash the summons". Clearly, this application is not, indeed, does not purport to be, such a complaint as the rules contemplate and prescribe. In the Matter of Children's Dress, Infant's Wear, Housedress & Bathrobe Makers' Union, Local 91 v. Frankow Mfg. Co., S.D.N.Y.1960, 183 F.Supp. 671; Application of Warren v. Arzt, S.D.N.Y.1955, 18 F.R.D. 11. Rather, the applicant instituted a summary proceeding for which the rules make no provision.

We recognize that there are a few special situations in which federal practice permits summary procedure either for the adjudication of a matter ancillary to a pending judicial proceeding or for the determination of some dispute concerning property already within the court's custody or control. E. g., Hale v. Henkel, 1906, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; Go-Bart Importing Co. v. United States, 1930, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374. For many years in this circuit we permitted summary proceedings to challenge the validity of a tax collector's distraint of property, reasoning that the distraint itself had served to bring the property under the court's control. Ersa Inc. v. Dudley, 3 Cir. 1956, 234 F.2d 178; Raffaele v. Granger, 3 Cir. 1952, 196 F.2d 620; Rothensies v. Ullman, 3 Cir. 1940, 110 F.2d 590. However, the Supreme Court, resolving a conflict among the circuits, has now found that those decisions were in error. New Hampshire Fire Ins. Co. v. Scanlon, 1960, 362 U.S. 404, 80 S.Ct. 843, 4 L.Ed.2d 826. The Court reasoned that the asserted judicial control of distrained property is more fictional than real and, therefore, does not warrant disregard of the federal rules which "provide the normal course for beginning, conducting, and determining controversies". 362 U.S. at 406, 80 S.Ct. at 845, 4 L.Ed.2d 826. We think this very recent decision of the Supreme Court precludes the substitution of summary procedure for plenary action except in those narrowly defined special situations which we already have mentioned. See 2 Moore, Federal Practice, 1962, 714.

Obviously, the present summary proceeding is not ancillary to any pending judicial action and concerns no property under the control of ...