U.S. v. Payne
| Decision Date | 18 June 1981 |
| Docket Number | No. 80-1800,80-1800 |
| Parties | 81-2 USTC P 9503 UNITED STATES of America and William E. Lucas, Special Agent, Petitioners-Appellees, v. Robert Benson PAYNE, as President of Tower Land and Investment Company and as President of Taurus Corporation, Respondent-Appellant. Summary Calendar. . Unit A |
| Court | U.S. Court of Appeals — Fifth Circuit |
Winstead, McGuire, Sechrest & Trimble, Robert L. Trimble, Thomas R. Helfand, Dallas, Tex., for respondent-appellant.
M. Carr Ferguson, Asst. Atty. Gen., Michael L. Paup, Chief Appellate Sec., JoAnn Horn, Charles E. Brookhart, Tax Div., Dept. of Justice, Washington, D. C., for petitioners-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before BROWN, POLITZ and TATE, Circuit Judges.
An Appearance Is Made
The material facts are easily summarized in this appeal from the enforcement of two Internal Revenue Service (IRS) summons. On April 5, 1978, William E. Lucas, a special agent of the IRS, personally served two summons on attorney Robert L. Trimble which were addressed to Trimble's client Robert Benson Payne as the President of Tower Land and Investment Company and Robert Benson Payne as the President of Taurus Corporation. The summons directed Payne to appear before Lucas and produce certain records of the two corporations in connection with an investigation of Payne's tax liability for the years 1973 through 1976. Payne and Trimble both appeared at the designated time and place, but failed to comply with the summons. The Government brought suit to enforce compliance. In answering this complaint, Payne raised, for the first time, the allegation that the summons were invalid and unenforceable because they were not properly served in accordance with 26 U.S.C.A. § 7603 1 neither served upon Payne personally nor left at his last and usual place of abode.
The District Court, 491 F.Supp. 74, acknowledged that the service was defective, but went on to find that Payne had waived strict statutory compliance by appearing at the time and place set forth in the summons and by failing to object to the improper service at that time. It is from this finding that Payne now appeals.
It is apparent from the facts that the IRS failed strictly to comply with the service requirements of § 7603 of the IRS code. Therefore, in order to determine the propriety of the District Court's decision enforcing the summons, we must examine that Court's resolution of the issue of whether or not there can be a waiver of strict compliance. In answering this issue in the affirmative, the District Court relied on the only case which has addressed the issue of waiver of service U. S. v. Myslajek, 568 F.2d 55 (8th Cir. 1978) cert. denied, 438 U.S. 905, 98 S.Ct. 3123, 57 L.Ed.2d 1147 (1978), which holds that the failure to object to a defective service may constitute waiver of strict compliance with the service requirements of § 7603. There, the IRS agent served two summons upon taxpayer Myslajek's adult son at her place of business and, in addition, notified her by phone. The taxpayer appeared on the return date of the summons, but declined to testify or produce any of the requested documents. Rather, she lodged several substantive objections to the summons, none of which included defective service. Myslajek's procedural objection did not surface until almost three months later in her answer to the enforcement petition. The Eighth Circuit in response held:
The record demonstrates that Ms. Myslajek received actual notice of the summons on the day they were served but did not object to the defective service until almost three months later. Although she filed a statement objecting to the summons on substantive grounds, she did not take that opportunity to raise any procedural issue. Had she voiced her objections at an earlier date, any defect in service could easily and inexpensively have been cured through a second service. Under the special circumstances of this case, we hold that Ms. Myslajek waived strict compliance with the requirements of § 7603.
The facts in the present case are parallel to those of Myslajek. Obviously, taxpayer Payne received notice of the service of the summons as indicated by his appearance, along with that of Trimble, his attorney. Likewise, a substantive objection was made at this time to the summons, but at no time was a procedural deficiency mentioned. 2 Had there been an objection to the defect, as was emphasized by the Myslajek court and the District Court here, the defect could instantly have been cured. Because there was no immediate complaint, however, we arrive at the same logical expedient and simple conclusion as in Myslajek, by finding that under these circumstances, Payne waived strict compliance.
Payne attempts to defeat this finding of waiver with the argument that his objection to the improper service was properly and timely raised at the District Court's enforcement proceeding. See 26 U.S.C.A. § 7604. 3 A requirement that the summoned party raise all defenses before the hearing examiner instead of the District Court, would, asserts Payne, result in a denial of due process and the usurption of power which Congress has granted to the Courts. Furthermore, this procedure is contrary to the steps outlined by the Supreme Court for summons enforcement proceedings in United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). Powell clearly states that in order to enforce its summons, the IRS must show that all administrative steps required by the code have been followed. Thus, Payne maintains that under Powell, improper service would result in a denial of enforcement.
We answer Payne's contention with a recent Fifth Circuit case, United States v. Bank of Moulton, 614 F.2d 1063 (5th Cir....
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