To
obtain enforcement of a summons, the IRS must first establish its "good faith" by showing that the summons: (1) is issued for a legitimate purpose; (2) seeks information relevant to that purpose; (3) seeks information that is not already within the IRS' possession; and (4) satisfies all administrative steps required by the United States Code. United States v. Powell, 379 U.S. 48, 57-58 (1964). The government's burden is "a slight one" and typically is satisfied by the introduction of the sworn declaration of the revenue agent who issued the summons that the Powell requirements have been met. United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir. 1993); United States v. Gilleran, 992 F.2d 232, 233 (9th Cir. 1993). Once a prima facie case is made a "heavy" burden is
placed on the taxpayer to show an "abuse of process" or "the lack of institutional good faith." Dynavac, 6 F.3d at 1414.
The Supreme Court, Justice Kagan, held that:
" a taxpayer challenging the validity of a summons in an enforcement proceeding is entitled to examine an IRS agent when the taxpayer can point to specific facts or circumstances plausibly raising an inference of bad faith, abrogating U.S. v. Southeast First Nat. Bank of Miami Springs, 655 F.2d 661, and Nero Trading, LLC v. U.S. Dept. of Treasury, 570 F.3d 1244, and [2] the Court of Appeals erred in applying a categorical rule holding that these associated individuals were entitled to examine
IRS officials based on a bare allegation of improper purpose, without assessing the plausibility of the evidence proffered by the individuals.
A taxpayer has a right to conduct an examination of IRS officials regarding their reasons for issuing a summons when he points to specific facts or circumstances plausibly raising an inference of bad faith.
(a) A person receiving a summons is entitled to contest it in an adversarial enforcement proceeding. Donaldson v. United States, 400 U.S. 517, 524, 91 S.Ct. 534, 27 L.Ed.2d 580. But these proceedings are “summary in nature,” United States v. Stuart, 489 U.S. 353, 369, 109 S.Ct. 1183, 103 L.Ed.2d 388, and the only relevant question is whether the summons was issued in good faith, United States v. Powell, 379 U.S. 48, 56, 85 S.Ct. 248, 13 L.Ed.2d 112. The balance struck in this Court’s prior cases
supports a requirement that a summons objector offer not just naked allegations, but some credible evidence to support his claim of improper motive. Circumstantial evidence can suffice to meet that burden, and a fleshed out case is not demanded: The taxpayer need only present a plausible basis for his charge.
EQUALITY BEFORE THE LAW IS PARAMOUNT AND MANDATORY BY LAW
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