U.S. v. Southern Tanks, Inc., No. 79-2214
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
| Writing for the Court | Before McWILLIAMS, DOYLE and McKAY; PER CURIAM |
| Citation | 619 F.2d 54 |
| Parties | 80-1 USTC P 9317 UNITED STATES of America and Robert F. Kelso, Jr., Special Agent, Internal Revenue Service, Petitioners-Appellees, v. SOUTHERN TANKS, INC., and Billy D. Murray, President, Respondents-Appellants. |
| Docket Number | No. 79-2214 |
| Decision Date | 28 April 1980 |
Page 54
Agent, Internal Revenue Service, Petitioners-Appellees,
v.
SOUTHERN TANKS, INC., and Billy D. Murray, President,
Respondents-Appellants.
Tenth Circuit.
Decided March 21, 1980.
Rehearing Denied April 28, 1980.
William A. Whitledge, Atty., Tax Div., Dept. of Justice, Washington, D. C. (M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews and Donald B. Susswein, Attys., Tax Div., Dept. of Justice, Washington, D. C.; Larry Patton, U. S. Atty., Oklahoma City, Okl., of counsel), for petitioners-appellees.
John C. Moran, Oklahoma City, Okl., for respondents-appellants.
Before McWILLIAMS, DOYLE and McKAY, Circuit Judges.
Page 55
PER CURIAM.
This is an appeal from a judgment of the district court which adopted and approved an order of the United States Magistrate enforcing an Internal Revenue Service (IRS) summons. A brief factual recitation will help to put the issues in perspective.
In late 1977, Revenue Agent DeShazo of the IRS was conducting an audit of Southern Tanks' income tax liability for certain fiscal years. Subsequently, DeShazo extended his inquiry to the income tax liability of Billy D. Murray, who is president of Southern Tanks. Approximately one year later, the case was referred to Special Agent Kelso for the purpose of conducting an investigation of possible criminal violations of the tax laws. At the time of the referral, DeShazo had not yet completed his audit as to either taxpayer for the tax year of 1976. During the course of his examination of Murray's individual tax liability, Kelso issued an administrative summons to Murray in his representative capacity as president of Southern Tanks and to Southern Tanks, Inc. The summons, as we understand, sought production of various business and financial records of the corporation. When the summons went unheeded, the underlying action for judicial enforcement was commenced.
Immediately upon the filing of the petition for enforcement, the district court, by a pro forma minute order, referred the matter to the United States Magistrate with instructions "to hear and determine all matters." At the evidentiary hearing before the magistrate, the IRS established that it had met the prerequisites for enforcement. The magistrate filed a report consisting of extensive findings of fact, conclusions of law and an order directing the respondents to comply with the summons. That order was, however, expressly "subject to the approval and final judgment of the United States District Judge."
Respondents promptly sought review of the magistrate's tentative action. After briefing and oral argument, the district court indicated its concurrence with the magistrate's determination and directed the entry of a final judgment in accordance with it. This appeal followed.
The pivotal question raised here by appellants concerns the district court's order referring the matter to the United States Magistrate for preliminary proceedings. Appellants argue that because the district court had no authority to make the order of reference, all acts of the magistrate were ultra vires. Continuing, they insist that even if the order of reference was correct, they were denied due process of law because the district judge did not consider the matter "de novo" prior to the entry of the final judgment. Both arguments are meritless and are rejected.
Under the Federal Magistrate's Act, a district court may designate a magistrate to perform enumerated duties and "such additional duties as are not inconsistent with the Constitution and laws of...
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U.S. v. Stuckey, No. 79-4691
...we held that the district court has great discretion to restrict or deny discovery. See also United States v. Southern Tanks, Inc., 619 F.2d 54 (10th Cir. 1980); and United States v. Ladd, 471 F.Supp. 1150 (N.D.Tex.1979). Discovery in a summary enforcement proceeding is the exception rather......
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U.S. v. Balanced Financial Management, Inc., Nos. 84-2210
...discovery is available in summons enforcement proceedings only in extraordinary situations." United States v. Southern Tanks, Inc., 619 F.2d 54, 56 (10th Cir.1980) (per curiam). In United States v. Security Bank and Trust Co., 661 F.2d 847, 850 (10th Cir.1981), we listed those defenses......
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Godwin v. United States, Misc. No. 83-4.
...at that time whether facts sufficient to justify post-hearing discovery have been adduced. See United States v. Southern Tanks, Inc., 619 F.2d 54, 56 (10th In the instant case, the taxpayer has not produced any justification warranting either limited discovery or an evidentiary hearing. Acc......
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Gioiosa v. U.S., No. 82-1077
...... amenable to disposition (by the district court) by appellate type briefing and argument." United States v. Southern Tanks, Inc., 619 F.2d 54, 56 (10th Cir. 1980). So, too, can they be decided by us if properly raised Turning to the question posed, we learn first that Fenstermaker v......
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U.S. v. Stuckey, No. 79-4691
...we held that the district court has great discretion to restrict or deny discovery. See also United States v. Southern Tanks, Inc., 619 F.2d 54 (10th Cir. 1980); and United States v. Ladd, 471 F.Supp. 1150 (N.D.Tex.1979). Discovery in a summary enforcement proceeding is the exception rather......
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U.S. v. Balanced Financial Management, Inc., Nos. 84-2210
...rule, discovery is available in summons enforcement proceedings only in extraordinary situations." United States v. Southern Tanks, Inc., 619 F.2d 54, 56 (10th Cir.1980) (per curiam). In United States v. Security Bank and Trust Co., 661 F.2d 847, 850 (10th Cir.1981), we listed those defense......
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Godwin v. United States, Misc. No. 83-4.
...at that time whether facts sufficient to justify post-hearing discovery have been adduced. See United States v. Southern Tanks, Inc., 619 F.2d 54, 56 (10th In the instant case, the taxpayer has not produced any justification warranting either limited discovery or an evidentiary hearing. Acc......
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US v. Zygarowski, Crim. No. 88-0224-F.
...by the district court by appellate type briefing and argument.'" Gioiosa, 684 F.2d at 179, quoting United States v. Southern Tanks, Inc., 619 F.2d 54, 56 (10th Cir.1980). Accordingly, where the parties have disputed legal issues, the Court will weigh and evaluate the arguments of the partie......