MacRae v. Riddell

Decision Date20 July 1965
Docket NumberNo. 19693-19695,19699.,19693-19695
Citation350 F.2d 291
PartiesAlbert Gordon MacRAE and Sheila MacRae, Martin Melcher and Doris Day Melcher, Jerome B. Rosenthal and Ruth B. Rosenthal, Samuel P. Norton and Beatrice Norton, Appellants, v. Robert RIDDELL, District Director of Internal Revenue, etc., et al., Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Harland N. Green, Michael E. Schwartz, Rosenthal, Cook & Green, Cohen & Bricker, Kaplan, Livingston, Goodwin & Berkowitz, Samuel P. Norton, Beverly Hills, Cal., for appellants.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Harold C. Wilkenfeld, Jonathan S. Cohen, Harry Marselli, Attys., Dept. of Justice, Washington, D. C., Manuel L. Real, U. S. Atty., Loyal E. Keir, Asst. U. S. Atty., Chief, Tax Div., Los Angeles, Cal., for appellees.

Before CHAMBERS and BROWNING, Circuit Judges, and TAVARES, District Judge.

CHAMBERS, Circuit Judge:

May the tax court, for a case pending before it, permit the issuance of subpoenas duces tecum (with the body of the subpoena in blank) to be completed by counsel and then, after it finds out what text counsel has put in it, cancel the subpoena?

On the facts of this case, we hold the tax court may do just that.

The appellants have cases with a common issue pending in the tax court. They obtained the blank subpoenas from the tax court1 and filled them out to name the district director of Internal Revenue at Los Angeles as the witness and commanded him to produce reports, memoranda and other office documents showing how the director internally had handled cases similar to those of these appellants. The director moved to quash, and a tax court judge granted the motion.

Of course, by statute the power to enforce subpoenas of the tax court is placed with the district courts.2 The tax court adjudicates, but it has no contempt powers and no long arm of enforcement (the marshal). Conceiving that in issuing the subpoena the tax court had spent its authority, appellants filed a petition in the district court to enforce the subpoenas as completed by them. The district court dismissed, ruling it was without jurisdiction. We assume the ruling meant "no proper jurisdiction" rather than "no power to act."

The tax court, for reasons of convenience, has provided for subpoenas in blank,3 obviously to relieve administrative burdens of testing each one in advance. And, generally, little trouble results from letting the lawyers complete them.

Obviously the tax court could test subpoenas before issuance. Such is equivalent to imposing conditions on their issuance. We see...

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7 cases
  • Hipp, Inc., Matter of
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 16, 1990
    ...decided before the tax court was granted this power, the Ninth Circuit stated that it had no inherent contempt powers. MacRae v. Riddell, 350 F.2d 291, 292 (9th Cir.1965), cert. denied, 382 U.S. 977, 86 S.Ct. 548, 15 L.Ed.2d 469 (1966) (however, this was before the tax court was explicitly ......
  • Rosenthal v. Commissioner
    • United States
    • U.S. Tax Court
    • November 30, 1970
    ...Service." An earlier order of the United States Tax Court quashing earlier subpoenas duces tecum was upheld in MacRae v. Riddell 65-2 USTC k 9577, 350 F. 2d 291 (C. A. 9, 1965), affirming 64-2 USTC k 9723, 234 F. Supp. 105, cert. den. in Melcher v. Riddell, 382 U. S. 977 It has been petitio......
  • Toscano v. CIR
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • April 28, 1971
    ...Aluminum Co. v. C.I.R., 4 Cir., 1955, 222 F.2d 622; Louisville Builders Supply Co. v. C.I.R., 6 Cir., 1961, 294 F.2d 333; MacRae v. Riddell, 9 Cir., 1965, 350 F.2d 291. Thus the Tax Court differs from its predecessor, the Board of Tax Appeals, which was held not to be a court and to have no......
  • In re Cox Cotton Co.
    • United States
    • U.S. District Court — Eastern District of Arkansas
    • November 17, 1982
    ...to the enactment of that provision in 1969, it was held that the Tax Court did not have any inherent power of contempt. MacRae v. Riddle, 350 F.2d 291, 292 (9th Cir.1965). The constitutionality of 26 U.S.C. ? 7456(d) has never been directly raised. Apparently, only two courts have ever made......
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