Fitzmartin v. Bingler
| Decision Date | 20 August 1965 |
| Docket Number | Civ. A. No. 65-852. |
| Citation | 244 F. Supp. 541 |
| Parties | Walter J. FITZMARTIN and Jane A. Fitzmartin, his wife, Plaintiffs, v. John H. BINGLER, Mark DeLouis, and the Commercial Bank and Trust Company, Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Frank Reich and Abraham Fishkin, Pittsburgh, Pa., for plaintiffs.
Gustave Diamond, U. S. Atty., Pittsburgh, Pa., and Thomas A. Daley, Asst. U. S. Atty., for defendants.
In this action the Commissioner of Internal Revenue through an IRS Agent in the Pittsburgh District Office issued a subpoena to the Commercial Bank and Trust Company of Pittsburgh summoning the bank to appear before the IRS Agent with records of the plaintiffs' transactions with the bank. The bank notified the plaintiffs that it would obey the Summons unless restrained by an Order of Court or of the Treasury Department. Plaintiffs, taxpayers, forthwith filed an action to enjoin the Commissioner, the IRS Agent and the bank from complying with the subpoena, and a temporary restraining Order was issued at plaintiffs' request, without notice or hearing staying the defendants from further action under the subpoena. The complaint names the District Director of the Internal Revenue Service, the IRS Agent, and the bank as parties defendants.
The Commissioner of Internal Revenue has now appeared and asked for the dismissal of the complaint and the vacating of the restraining order on the grounds that the witness subpoenaed and the taxpayer have an adequate remedy at law under the Internal Revenue Code in accordance with the decision of the United States Supreme Court in Reisman et al. v. Caplin, et al., 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459. The Reisman case recites the statutory procedure provided by the Internal Revenue Code both for contesting the subpoena before the Hearing Officer by the witness summoned and for the enforcement of such Summons by the Internal Revenue Service in the event of the neglect or refusal of the witness to comply. 26 U.S.C. § 7604(b), provides for a proceeding before the District Court in the nature of an attachment for contempt. In the Reisman case the Court also recites the procedure provided under 26 U.S.C. § 7602, authorizing the Secretary of the Treasury to summon the person liable for tax, or any person having possession of books of account to appear before his delegate and produce such books. It is conceded that under § 7602 the witness or any party in interest may attack summons before the Hearing Officer. In addition a proceeding is provided under 26 U.S.C. § 7402(b), which grants the District Courts of the United States jurisdiction by appropriate process to compel such attendance, testimony or production of books, papers, or other data. In Reisman the Circuit Court for the District of Columbia had dismissed the complaint because:
"* * * it is not within the court's jurisdiction because it is in substance a suit against the United States to which it has not consented." 317 F.2d 123, 125.
The Supreme Court sustained the dismissal but on other grounds, the existence of an adequate remedy at law in the provisions of the Internal Revenue Code.
This still leaves an area of uncertainty. Actions by the taxpayer in the nature...
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Cook v. United States, Civ. No. LV 74-140.
...this standing issue at the hearing, Cook's counsel relied on Kelley v. United States, 503 F.2d 93 (9th Cir. 1974), and Fitzmartin v. Bingler, 244 F.Supp. 541 (W.D.Pa.1965). In Kelley, the taxpayer sought to enjoin the enforcement of an IRS summons issued pursuant to Section 7602. The summon......
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Bowser v. First National Bank of Oakland, Maryland
...have been rather fully developed by Judge Foley in his recent decision in the Cook case and earlier by Judge Weber in Fitzmartin v. Bingler, 244 F. Supp. 541 (W.D.Pa.1965).3 There is little to be gained by further discussion of those opinions and of their analyses of the language used by th......
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Callahan v. First Pennsylvania Bank, Misc. No. 76-357.
...v. First National Bank of Oakland, 390 F.Supp. 834 (D.Md.1975); Cook v. United States, 387 F.Supp. 1100 (D.Nev.1974); Fitzmartin v. Bingler, 244 F.Supp. 541 (W.D.Pa.1965). Petitioner seeks to raise a number of objections to the IRS summons. Some of these are on very questionable grounds. Se......
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Poirier v. CIR
...prevent irreparable injury." If the procedure set forth in Reisman is followed, no irreparable injury will result. In Fitzmartin v. Bingler, W.D.Pa. 1965, 244 F.Supp. 541, a taxpayer sought to enjoin the witness bank, the Commissioner and the Internal Revenue Service agent from complying wi......