U.S. v. Riewe, No. 80-1611

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before BARRETT, McKAY and LOGAN; PER CURIAM
• Citation: 676 F.2d 418
• Parties: 82-1 USTC P 9338 UNITED STATES of America, Plaintiff-Appellee, v. Daryl RIEWE, Defendant-Appellant.
• Decision Date: 22 April 1982
• Docket Number: No. 80-1611

Page 418

676 F.2d 418 82-1 USTC P 9338 UNITED STATES of America, Plaintiff-Appellee,
v.
Daryl RIEWE, Defendant-Appellant. No. 80-1611. United States Court of Appeals,
Tenth Circuit. April 22, 1982.

Page 419

Cecil A. Hartman, Englewood, Colo., for defendant-appellant.

Richard A. Stacy, U. S. Atty., and Tosh Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., for plaintiff-appellee.

Before BARRETT, McKAY and LOGAN, Circuit Judges.

PER CURIAM.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument

Page 420

would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.

Daryl Riewe seeks review of a district court order finding him in contempt of court for failing to appear at a hearing where he was to show cause why a summons issued by the Internal Revenue Service (IRS) should not be enforced. The district court ordered Riewe confined in the county jail for a period of thirty days with the provision that he could purge himself of the contempt sanction by providing the records sought by the IRS summons. When reviewing a district court's finding of contempt, we are limited to determining whether the court abused its discretion. V.T.A., Inc. v. Airco, Inc., 597 F.2d 220, 226 (10th Cir. 1979).

On August 22, 1979, an IRS summons was served on Riewe directing him to appear before the IRS to testify and to provide for inspection specifically delineated books, records, and other papers. He refused to comply with this summons, and the IRS sought enforcement in the district court pursuant to the provisions of I.R.C. §§ 7402(b) and 7604. On March 18, 1980, Riewe was served with a court order requiring him to appear before the United States magistrate and show cause why the summons should not be enforced. He did not appear at the summons enforcement proceeding. The magistrate proceeded with the case, heard the evidence of the IRS, and recommended to the district court that the summons be enforced and Riewe be held in contempt for failure to appear. The district court then ordered Riewe to show cause why he should not be held in contempt. Riewe appeared at the district court's hearing held on May 14, 1980. That court heard Riewe's testimony and considered the magistrate's recommendations; it concluded that the IRS summons was issued for a proper civil tax determination purpose and that Riewe had failed to show good cause for not appearing at the IRS summons enforcement proceeding. The court held Riewe in contempt and ordered him confined under the conditions noted above. However, the court did not order enforcement of the summons.

If the IRS has issued a summons to appear and produce documents, and the taxpayer then does not appear, the IRS has three options. It can seek an order of contempt from the district court, I.R.C. § 7604(b); Reisman v. Caplin, 375 U.S. 440, 448-49, 84 S.Ct. 508, 513, 11 L.Ed.2d 459 (1964); it can criminally prosecute the witness, I.R.C. § 7210 (nonappearing witness subject to fine of up to $1,000 and one year in prison); or it can ask the district court to enforce the summons, id. §§ 7402(b), 7604. If, as here, the IRS asks the district court to enforce the summons, the court will order the taxpayer to show cause why the summons should not be...