U.S.A Internal Revenue Serv. v. Lanoie, 10-2125
| Decision Date | 24 November 2010 |
| Docket Number | D.C. No. 08-MC-00030-MV,No. 10-2125,10-2125 |
| Parties | UNITED STATES OF AMERICA INTERNAL REVENUE SERVICE, Petitioner - Appellee, v. PAUL LANOIE, JR., Respondent - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Paul Lanoie Jr. proceeding pro se, appeals an order of the district court ordering him to provide the Internal Revenue Service ("IRS") with informationsought in a summons issued by the IRS, as well as a separate judgment enforcing the summons against him. We affirm.
As part of an ongoing investigation relating to the collection of potential outstanding tax liabilities of Mr. Lanoie for the 1997, 1998 and 1999 tax years, on June 25, 2008, IRS Revenue Officer Dean Chavez issued a summons to Mr. Lanoie, along with a Form 433-A Collection Information Statement. The summons directed Mr. Lanoie to appear before Mr. Chavez on July 16, 2008, to provide testimony and produce certain categories of documents pertaining to his assets and liabilities.
On July 15, 2008, Mr. Chavez received a letter from Mr. Lanoie stating that he could not attend the scheduled July 16 meeting and requesting that he be given a choice of at least three more dates for the meeting. In his letter, Mr. Lanoie noted case law providing that only a court can enforce an IRS summons, and asked, "If that is the case, why should I appear before you and give you documents and answer any of your questions?" Letter at 2, R. Vol. 1 at 36.1 Hefurther stated, "[i]t seems to me that every relevant question or request for documents that you can ask from me can be used in a criminal tax case against me," and that if he was "wrong about this and you still want to meet and put all the above into action, let me know and we can meet." Id.
Mr. Chavez left messages on Mr. Lanoie's home telephone, rescheduling the meeting for July 28, 29 or 30, 2008, but Mr. Lanoie failed to appear on any of those dates. Mr. Lanoie claimed that he never received the messages left by Mr. Chavez.
On September 2, 2008, the United States Attorney for the District of New Mexico, after consulting with Mr. Chavez, sent Mr. Lanoie a letter identifying the categories of information sought in the summons and requesting that Mr. Lanoie meet with Mr. Chavez to provide the requested information on September 11, 2008. In his response letter dated September 9, 2008, Mr. Lanoie complained that Mr. Chavez had not yet answered the questions Mr. Lanoie asked in his previous letter, stated that he could not attend the September 11 meeting, and requested three more dates for a meeting.
On September 16, 2008, the government filed a petition in federal district court to enforce the summons. The petition was supported by a declaration from Mr. Chavez and a copy of the summons. The petition alleged that the IRS sought the summoned information for the purpose of determining Mr. Lanoie's ability topay and that the IRS had not referred the issue of Mr. Lanoie's tax liabilities to the Department of Justice for criminal prosecution.
On October 6, 2008, Mr. Lanoie filed an objection to the petition, stating that he had not been uncooperative in response to the summons, but was "attempting to get [the IRS] to clarify [his] confusion and lack of knowledge regarding IRS rules and procedure." Resp't's Objection to Pet'r's Pet. to Enforce IRS Summons at 1, R. Vol. 1 at 29. Mr. Lanoie did not argue in his Objection that the materials sought by the summons were protected from disclosure by the Fifth Amendment. He did, however, include a copy of his previous letter to the IRS, which stated, "[i]t seems to me that every relevant question or request for documents that you can ask from me can be used in a criminal tax case against me." Id. at 36. He made no other reference to the Fifth Amendment's right to not incriminate himself.
On December 30, 2008, the district court issued an order directing Mr. Lanoie to appear before the court on January 22, 2009, to show cause why he should not comply with the IRS summons. Subsequently, on January 14, 2009, Mr. Lanoie finally met with Mr. Chavez, who asked him the questions that had been posed to him in the Collection Information Statement, which had been sent to Mr. Lanoie as part of that first summons issued on June 25, 2008. While Mr. Lanoie provided his name, address and social security number, he invokedthe Fifth Amendment in response to the questions on the form pertaining to employment and other financial information.
Mr. Chavez did not request that Mr. Lanoie provide any specific documents during the meeting because, without answers to the questions, he did not know which documents Mr. Lanoie possessed.
On January 22, 2009, Mr. Lanoie filed a motion to dismiss, claiming that he had complied with the summons during his meeting with Mr. Chavez on January 14, 2009. In support of his motion, Mr. Lanoie declared that during the meeting, he had answered Mr. Chavez's questions, invoking the Fifth Amendment response to some of them, and that Mr. Chavez had not asked for any documents.
Also on January 22, 2009, Mr. Lanoie appeared at the show-cause hearing before the district court and stated that, during his meeting with Mr. Chavez on January 14, 2009, he had Tr. of Proceedings at 6, R. Vol. 2 at 8. The district court reviewed the questions and told Mr. Lanoie that he had no valid Fifth Amendment right to refuse to answer the questions posed him by Mr. Chavez:
Id. at 10-11. Mr. Lanoie declined to answer the questions and was arrested for being in contempt of court.
Mr. Lanoie was released from jail a few hours later. In its Order of Release, the court stated that, in accordance with its earlier ruling at the hearing, Mr. Lanoie had "not shown that he faces a real hazard of criminal liability if this information is provided and, therefore, has not properly asserted a Fifth Amendment privilege." Order of Release, R. Vol. 1 at 54.
Mr. Lanoie then filed a notice of appeal to this court. We dismissed that appeal for lack of jurisdiction because no enforcement order had been entered and prejudgment civil contempt findings are not reviewable on interlocutory appeal. United States v. Lanoie, No. 09-2030 (10th Cir., Feb. 4, 2010) (unpublished).
After our dismissal of that first appeal, the district court entered an order and separate judgment in favor of the United States, enforcing the summons. The court observed that it had informed Mr. Lanoie at the show-cause hearing that "he had no valid Fifth Amendment right not to answer the questions." Order Enforcing Summons at 1, R. Vol. 1 at 87. It further noted that it had "inadvertently failed to enter a final order enforcing the summons before finding Lanoie in contempt." Id. at 88. Mr. Lanoie appeals the order and judgmentenforcing the summons, arguing that the district court erred in concluding that he had not complied with the IRS summons; that the district court used the wrong standard to determine whether Mr. Lanoie had complied with the IRS summons; and that the district court erred in enforcing the summons.
We review a district court's enforcement order for clear error. United States v. Coopers & Lybrand, 550 F.2d 615, 620 (10th Cir. 1977).
Pursuant to §§ 7801 and 7802 of the Internal Revenue Code, 26 U.S.C. §§ 7801, 7802, Congress has conferred upon the Secretary of the Treasury and the Commissioner of Internal Revenue the responsibility of administering and enforcing the Internal Revenue Code. See United States v. Ford, 514 F.3d 1047, 1053 (10th Cir. 2008); Lonsdale v. United States, 919 F.2d 1440, 1447 (10th Cir. 1990). Accordingly, under 26 U.S.C. § 6201, the Secretary is "authorized and required to make the inquiries, determinations, and assessments of all taxes (including interest, additional amounts, additions to the tax, and assessable penalties) imposed by" the Code. Section 7602 grants the IRS "expansive information-gathering authority" in order to ensure effective tax investigations. United States v. Arthur Young & Co., 465 U.S. 805, 816 (1984); Codner v. United States, 17 F.3d 1331, 1332 (10th Cir. 1994). That section authorizes the Secretary to examine records, to summon taxpayers, and to take testimony for thepurposes of "ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or liability at law or in equity... or collecting any such liability." United States v. Euge, 444 U.S. 707, 710-11 (1980) (quoting 26 U.S.C. § 7602).
When an individual fails to obey an IRS summons, the government may petition a federal district court to enforce the summons. 26 U.S.C. § 7402(b); United States v. Balanced Fin. Mgmt., Inc., 769 F.2d 1440, 1446-47 (10th Cir. 1985). To obtain enforcement of a summons, the government "must show that the investigation will be conducted...
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