United States v. O'CONNOR, 53-64-W.

• Decision Date: 21 October 1953
• Docket Number: No. 53-64-W.,53-64-W.
• Citation: 118 F. Supp. 248
• Parties: UNITED STATES v. O'CONNOR.
• Court: U.S. District Court — District of Massachusetts

118 F. Supp. 248

UNITED STATES v. O'CONNOR.

No. 53-64-W.

United States District Court D. Massachusetts.

October 21, 1953.

Anthony Julian, U. S. Atty., W. Langdon Powers, Asst. U. S. Atty., Boston, for plaintiff.

W. Arthur Garrity, Jr., Maguire & Roach & Garrity, Boston, Mass., J. J. Maloney, Jr., Boston, Mass., for defendant.

WYZANSKI, District Judge.

This is a petition under § 3633 to enforce a summons purportedly issued under § 3614 of the Internal Revenue Code, 26 U.S.C.A. §§ 3614 and 3633. The first of these sections reads as follows:

(a) "To Determine liability of the taxpayer. The Commissioner, for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made, is authorized, by any officer or employee of the Bureau of Internal Revenue, including the field service, designated by him for that purpose, to examine any books, papers, records, or memoranda bearing upon the matters required to be included in the return, and may require the attendance of the person rendering the return or of any officer or employee of such person, or the attendance of any other person having knowledge in the premises, and may take his testimony with reference to the matter required by law to be included in such return, with power to administer oaths to such person or persons."

John J. Cavanagh, Special Agent of the Internal Revenue Bureau, served upon John J. M. O'Connor a subpoena duces tecum directing the production of papers bearing upon the 1946 to 1950 income tax returns of Frank Iaconi. Since O'Connor refused to obey the subpoena, Cavanagh petitions this court to enforce it. On the filing of the petition an order to show cause was made returnable October 19, 1953.

The facts were agreed upon by counsel for the Special Agent, counsel for O'Connor, and counsel for Iaconi. Indeed Iaconi sought to intervene in the proceedings, but this Court denied him the right to do so, and limited him to having his views presented by counsel as amicus curiae.

Upon the agreed facts it appears that Iaconi engaged O'Connor as an accountant. In that capacity O'Connor used work sheets and other papers in preparing Iaconi's tax returns. Months ago, under specific directions from higher authority in the Bureau, Cavanagh conducted an investigation into Iaconi's tax returns. Thereafter he made a report upon such matters to his superior authorities. Cavanagh has not now pending before him any specific inquiry into Iaconi's affairs, and has not any outstanding directions with respect to Iaconi from superior authorities in the Internal Revenue Bureau or elsewhere in the Treasury Department. Nonetheless, under his general authority as Special Agent, Cavanagh is always authorized to issue subpoenas relative to tax matters in the case of anybody who seems to him deserving of his investigation, even though no superior authority has directed particular attention to the individual concerned.

In the meantime, on February 13, 1953 Iaconi was indicted by the Grand Jury. The indictment has been returned to Judge McCarthy for trial. On October 5, 1953 that jurist ordered the Government to file a bill of particulars stating the sources of the 1946 to 1950 income of Iaconi. The Department of Justice is endeavoring to comply. Representatives of that Department, without directing representatives of the Treasury to do anything, conferred with Cavanagh and other Treasury officers. Thereafter, Cavanagh issued the subpoena now in question. Cavanagh admits that in issuing the subpoena at least one of his purposes was to aid the Department of Justice in the prosecution of the criminal case against Iaconi.

Upon the foregoing agreed facts O'Connor does not suggest (nor indeed could he hope to succeed in persuading this Court) that he or Iaconi is entitled to any special privilege against testimonial disclosure on the ground that O'Connor was an accountant, and Iaconi was his client.

The only issue which is raised by O'Connor is that the power which Cavanagh has purported to exercise to compel the production of documents is a power granted under § 3614 of the Internal...