In re Fahey
| Decision Date | 10 April 1962 |
| Docket Number | No. 14558.,14558. |
| Citation | 300 F.2d 383 |
| Parties | In the Matter of James E. FAHEY. G. C. HOOKS, District Director of Internal Revenue Service for the District of Kentucky, Petitioner-Appellee, v. James E. FAHEY, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
David W. Gray, of Skaggs, Hays & Fahey, Louisville, Ky., for appellant.
Joseph W. Howard, Washington, D. C., Louis F. Oberdorfer, Meyer Rothwacks, Daniel K. Mayers and K. William O'Connor, Washington, D. C., Wm. E. Scent, U. S. Atty., Louisville, Ky., on brief, for appellee.
Before SIMONS and MARTIN, Circuit Judges, and DARR, Senior District Judge.
Appellant declined to produce documents and other papers named in a summons served on him, which summons had been issued by a special agent of the Internal Revenue Service under Section 7602 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7602. Appellee instituted proceedings to force compliance with the summons under authority of Section 7604 of the Internal Revenue Code of 1954. The District Judge required the appellant to produce a portion of the papers described in the summons and from a judgment based on these conclusions an appeal was taken.
To understand the problem, a brief review of the events leading up to the present controversy must be considered.
Roderick G. Cooper and wife resided on Wolf Pen Road, Prospect, Kentucky and also maintained a residence in Gulf Hills, Ocean Springs, Mississippi. The joint federal income tax returns of the Coopers for the years 1950-1958, inclusive, were filed with the District Director of Internal Revenue at Louisville, Kentucky.
A certified public accountant of Biloxi, Mississippi, S. E. Powell, was employed by Mr. Cooper to prepare the income tax returns for the years 1957 and 1958. To aid Mr. Powell in preparing the income tax returns, Mr. Cooper turned over to him a number of written records and papers and also imparted oral information.
In 1959, Internal Revenue agents began making inquiries about the Coopers' income tax returns, which caused Mr. Cooper, in September 1959, to call Mr. Powell to be present at a meeting with Mr. Cooper's lawyer, Paul M. Newton of Hattiesburg, Mississippi. Mr. Newton was a former attorney in the Internal Revenue Service and was familiar with income tax law.
On October 6, 1959, Mr. Newton met with Mr. Cooper, in Mr. Powell's office in Biloxi, Mississippi. After some discussion, Newton requested Powell to turn over the Cooper income tax file as he, the attorney, desired to familiarize himself with circumstances in the case. Mr. Powell delivered the file to Mr. Newton in the presence of Mr. Cooper. The file contained (1) the documents and papers delivered by Mr. Cooper to Mr. Powell and (2) the sheets of paper on which Mr. Powell noted information and made calculations to be used in making the income tax returns, called "work sheets."
On November 10, 1959, Newton mailed the income tax file to James E. Fahey, who was a member of a firm of attorneys in Louisville, Kentucky, employed by Mr. Cooper as additional counsel.
On May 3, 1960, Mr. Cooper was served with a summons requiring him to disclose information about his income tax, especially by producing documents and papers. It is assumed these documents and papers included those in the Powell file. Mr. Cooper responded to the summons by claiming his constitutional privilege against self-incrimination. This claim was respected and no effort made to enforce this summons.
On June 17, 1960, Mr. Powell wrote the following letter to Mr. Fahey:
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