In re Upham's Income Tax
| Citation | 18 F. Supp. 737 |
| Parties | In re UPHAM'S INCOME TAX. |
| Decision Date | 04 March 1937 |
| Court | U.S. District Court — Southern District of New York |
Spencer, Ordway & Wierum, of New York City (Otto C. Wierum, of New York City, of counsel), for petitioner.
Lamar Hardy, U. S. Atty., of New York City (Jay Slonim, Asst. U. S. Atty., of New York City, of counsel), for respondents.
Elizabeth R. Upham brought a petition showing that she is executrix of the estate of Richard D. Upham, deceased, who died in 1924; that the respondent Krigbaum, an internal revenue agent, served on Central Hanover Bank & Trust Company a summons requiring production before him of a copy of the bank account of the decedent from 1916 to 1924 and also a summons requiring production of a copy of the bank account of the estate from 1924 to the present time, both summonses entitled "In the Matter of the tax liability of R. D. Upham, deceased." The petition further alleges that the decedent's income tax returns were audited and the tax liability fixed prior to or soon after his death, that the time within which assessment of tax against the decedent may be made has long since expired, that the returns of the estate have always been truthfully made by the petitioner, and that no claim has been made that any return was false or fraudulent. By reason of these facts the petitioner charges that the summonses amount to an unreasonable search and seizure of her papers in violation of the Fourth Amendment. On this petition an order was issued directing the Commissioner of Internal Revenue and Krigbaum to show cause why the two summonses should not be vacated.
In answer to the petition and order to show cause, the affidavits of two internal revenue agents are submitted. These affidavits are to the effect that an investigation into the income of the decedent, Upham, and of his estate, from 1914 down, is under way, and that there is reason to believe that from 1916 to 1933 fraudulent returns were made. The affidavits set out on information and belief certain circumstances said to be suspicious. It is unnecessary to refer to these alleged circumstances, since the petition must be dismissed as insufficient on its face.
Both summonses were served under section 618 of the Revenue Act of 1928 (26 U.S.C.A. § 1514): "The Commissioner, for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made, is authorized, by any officer or employee of the Bureau of Internal Revenue, including the field service, designated by him for that purpose, to examine any books, papers, records, or memoranda bearing upon the matters required to be included in the return, and may require the attendance of the person rendering the return or of any officer or employee of such person, or the attendance of...
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