Callahan v. Schultz, 85-3591

Citation783 F.2d 1543
Decision Date10 March 1986
Docket NumberNo. 85-3591,85-3591
Parties-985, 86-1 USTC P 9269, 4 Fed.R.Serv.3d 1128 Joan M. CALLAHAN, Plaintiff-Appellee, v. Fred SCHULTZ, et al., Defendants-Appellants. Non-Argument Calendar.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

Glenn L. Archer, Asst. Atty. Gen., Michael L. Paup, Chief, Charles E. Brookhart, Kathryn E. Rooklidge, Tax Div., Appellate Section, U.S. Dept. of Justice, Washington, D.C., Virginia M. Covington, Asst. U.S. Atty., Tampa, Fla., for defendants-appellants.

Appeal from the United States District Court For the Middle District of Florida.

Before GODBOLD, Chief Judge, HILL and ANDERSON, Circuit Judges.

PER CURIAM:

The United States appeals the district court's judgment quashing an IRS summons for failure to file certain exhibits as ordered and the order denying its motion to alter or amend the judgment.

The IRS issued a summons to a third party bank on August 12, 1983 requiring the bank to produce its records of appellee's bank accounts and transactions. In response, appellee filed a complaint petition to quash the summons on September 6, 1983. The United States filed a motion to dismiss appellee's complaint petition, contending the district court lacked jurisdiction because the petition was untimely, and seeking enforcement of the summons. This motion referred to exhibits which were not attached and which remained unfiled despite two court orders directing the government to file these exhibits. The district court entered judgment quashing the summons on February 19, 1985; on March 1, 1985, the United States served a motion to alter or amend the judgment, Fed.R.Civ.P. 59(e), which was filed with the court on March 5, 1985. The district court denied this motion because it was not filed within ten days of judgment.

We agree in theory with the IRS's jurisdictional argument. The government's consent to suit on an IRS summons requires strict compliance with 26 U.S.C. Sec. 7609(b)(2)(A) (1982) which provides that a proceeding to quash must be commenced within twenty days after notice is "given." Notice under section 7609 is given on the date it is mailed. Stringer v. United States, 776 F.2d 274, 275-76 (11th Cir.1985). Nevertheless, the United States did not support its claim of untimeliness by filing the referenced exhibits as ordered. The "adverse inference" rule provides that "when a party has relevant evidence within his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him." International Union (UAW) v. NLRB, 459 F.2d 1329, 1336 (D.C.Cir.1972). See also 2 Wigmore, Evidence Sec. 285 (Chadbourn rev. 1979); United States v. Roberson, 233 F.2d 517, 519 (5th Cir.1956). The motion to dismiss referred to exhibits which the government asserted would support the IRS's claim of untimeliness and set forth grounds for enforcing the summons. The government failed to file the missing exhibits despite two court orders; we further note the IRS did not file these exhibits with its Rule 59(e) motion. Under the adverse inference rule, we hold the district court was justified in denying the government's motion to dismiss.

In addition, the district court proceeded to quash the summons because of the government's failure to submit its exhibits. To obtain enforcement of a summons, the IRS has the initial burden to show

(1) that the investigation will be conducted pursuant to a legitimate purpose, (2) that the inquiry will be relevant to that purpose, (3) that the information sought is not already in the IRS' possession and, (4) that it has taken the administrative steps necessary to the issuance of a summons. The IRS can satisfy this burden merely by presenting the sworn affidavit of the agent who issued the summons attesting to these facts. Thereafter, the burden shifts to the party...

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17 cases
  • United States v. Munksgard, 16-17654
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 30 Enero 2019
    ...to produce it can in some cases "give[ ] rise to an inference that the evidence is unfavorable to him." See Callahan v. Schultz , 783 F.2d 1543, 1545 (11th Cir. 1986) (per curiam) (quoting Int’l Union (UAW) v. NLRB , 459 F.2d 1329, 1336 (D.C. Cir. 1972) ). I am unaware of any area of the la......
  • LaFerrera v. Camping World RV Sales of Birmingham
    • United States
    • U.S. District Court — Northern District of Alabama
    • 21 Marzo 2016
    ...they failed to show how that evidence was spoliated. The Court cannot grant the requested adverse inference. See Callahan v. Schultz , 783 F.2d 1543, 1545 (11th Cir.1986) (stating that an adverse inference is appropriate when a party does not produce evidence “within his control”).3. Folder......
  • Guthrie v. Wells Fargo Home Mortg. Na
    • United States
    • U.S. District Court — Northern District of Georgia
    • 7 Julio 2014
    ...Motion to Dismiss until January 10, 2014. Service was complete upon the mailing of the motion on December 27, 2013. Callahan v. Schultz, 783 F.2d 1543, 1546 (11th Cir. 1986); Fed. R. Civ. P. 5(b)(c). The date of receipt was irrelevant. Callahan, 783 F.2d at 1546. Moreover, Plaintiff was not......
  • In re Partners Group Financial, LLC
    • United States
    • U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • 15 Septiembre 2008
    ...he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him.") (quoting Callahan v. Schultz, 783 F.2d 1543, 1545 (11th Cir. 1986)). Next, to the extent that a scienter requirement exists under § 201-2(4)(xxi) of the CPL,27 in the circumstances presen......
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