Callahan v. Schultz, No. 85-3591

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBefore GODBOLD, Chief Judge, HILL and ANDERSON; PER CURIAM
Citation783 F.2d 1543
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.
Decision Date10 March 1986
Docket NumberNo. 85-3591

Page 1543

783 F.2d 1543
57 A.F.T.R.2d 86-985, 86-1 USTC P 9269, 4
Fed.R.Serv.3d 1128
Joan M. CALLAHAN, Plaintiff-Appellee,
v.
Fred SCHULTZ, et al., Defendants-Appellants.
No. 85-3591
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
March 10, 1986.

Page 1544

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

Page 1545

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,...

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17 practice notes
  • United States v. Munksgard, No. 16-17654
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 30, 2019
    ...failure 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 o......
  • Decisions And Orders:
    • United States
    • Federal Register April 07, 2011
    • April 7, 2011
    ...within his control which he fail[ed] to produce.'' \76\ This precedent was embraced by the Eleventh Circuit in Callahan v. Schultz, 783 F.2d 1543, 1545 (11th Cir. 1986). The judicious utilization of the adverse inference rule allows an administrative tribunal to use the tools available to i......
  • In re Partners Group Financial, LLC, No. 05-39390ELF.
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • September 15, 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. Next, to the extent that a scienter requirement exists under § 201-2(4)(xxi) of the CPL,27 in the circumstances presented here......
  • Guthrie v. Wells Fargo Home Mortg. Na, CIVIL ACTION NO. 1:13-CV-4226-RWS-LTW
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 7, 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......
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16 cases
  • United States v. Munksgard, No. 16-17654
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • January 30, 2019
    ...failure 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 o......
  • In re Partners Group Financial, LLC, No. 05-39390ELF.
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Eastern District of Pennsylvania
    • September 15, 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. Next, to the extent that a scienter requirement exists under § 201-2(4)(xxi) of the CPL,27 in the circumstances presented here......
  • Guthrie v. Wells Fargo Home Mortg. Na, CIVIL ACTION NO. 1:13-CV-4226-RWS-LTW
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia
    • July 7, 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......
  • LaFerrera v. Camping World RV Sales of Birmingham, 7:15-cv-00473-LSC
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • March 21, 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......
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