Application of Levine
| Decision Date | 14 February 1956 |
| Parties | Application of Sidney S. LEVINE, to vacate summons issued by Donald R. Moysey, Acting District Director of the Treasury Department of the United States, and to restrain any procedure under said summons. |
| Court | U.S. District Court — Southern District of New York |
Sidney S. Levine, New York City, pro se.
Paul W. Williams, U. S. Atty., by Foster Bam, Asst. U. S. Atty., New York City, of counsel, for the United States.
Petitioner seeks to vacate a summons issued by the Acting District Director of the Treasury Department of the United States requiring him to appear before an officer of the Internal Revenue Service to answer questions regarding his tax liability for withholding taxes on specified dates. The summons requires that he bring to this examination certain specified documents, i.e. "Completed Financial Statements 433AB".
Petitioner's motion is not based on the grounds that he is unable to comply because of the vagueness of the summons' description of either the subject of the examination or the nature of the requested documents; that issue is not raised. Rather he asserts that although the summons is understandable and compliance is possible, it should be vacated because: (1) it was issued without any petition or affidavit showing facts on which the Bureau decided to institute an investigation and because he was not accorded any hearing before the "alleged fixing of the withholding", and (2) because the summons is not returnable before the Secretary or his delegate as required in the statute, but is returnable before E. I. Martin, a mere employee. He says there is no showing that Martin is an attorney, or capable of administering an oath or legally examining any person. He contends that the person examined at such hearings has a right to make objections to improper questions, and that unless Martin is a qualified and experienced examiner versed in the law, it would be a violation of petitioner's constitutional rights to permit this examination to proceed.
In answer to petitioner's first contention, Section 7602 of the Internal Revenue Code, 26 U.S.C. § 7602, requires no showing by petition or affidavit that there is cause for believing taxes have not been properly paid where the examination is of the taxpayer himself as is the case here. The very purpose of the examination is to discover whether tax liability exists, and the provision was put into the law to enable the Treasury Department to perform its statutory duty of ensuring that taxes are being properly paid, by proceeding "from time to time, through each internal revenue district to inquire after and concerning all persons therein who may be liable to pay any internal revenue tax." 26 U.S.C. § 7601.1 The question of probable cause for such investigations comes into play when a third party is requested to produce records relating to the taxpayer under...
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