[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
FEB 1, 2008
No. 07-11029 THOMAS K. KAHN
D. C. Docket No. 06-60501-CV-DLG
TIMOTHY J. ELMES,
UNITED STATES OF AMERICA,
through Internal Revenue Service,
through Kim Keelan, Revenue Agent,
Appeal from the United States District Court for the Southern District of Florida
(February 1, 2008)
Before TJOFLAT, MARCUS and WILSON, Circuit Judges.
At issue in this appeal is whether the United States District Court for the
Southern District of Florida properly enforced two summonses served on
American Express and Northern Trust Bank, respectively, by the Internal Revenue
Service ("IRS"). After thorough review, we affirm.
In 2002, Timothy J. Elmes claimed to be a resident of the Virgin Islands and
ceased filing his U.S. tax returns. On March 22, 2006, IRS Agent Jim Keelan
issued summonses to the South Florida custodians of American Express and
Northern Trust Bank requesting bank account and credit card statements,
correspondence, and billing address information to determine whether Elmes was a
resident of the United States during the years 2002 through 2004.
Elmes petitioned to quash the summonses, and the Government thereafter
moved to dismiss his petition and to enforce the summonses. Along with that
motion, the Government included an affidavit signed by Agent Keelan declaring
that the summonses complied with the four factors laid out by the Supreme Court
in United States v. Powell, 379 U.S. 48
, 57-58 (1964). On January 26, 2007, the
district court denied Elmes' petition and ordered the enforcement of both
summonses. This timely appeal followed.
"An order enforcing an IRS summons will not be reversed unless clearly
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erroneous." United States v. Medlin, 986 F.2d 463
, 466 (11th Cir. 1993).
Pursuant to 26 U.S.C. § 7602, "the Secretary of the Treasury, or the IRS as
his designee, may examine any books, papers, records, or other data which may be
relevant or material to . . . ascertaining the correctness of any return and may issue
summonses to those in possession, custody, or care thereof to appear and produce
them to the IRS." La Mura v. United States, 765 F.2d 974
, 979 (11th Cir. 1985)
(citation and internal quotation marks omitted).1 The "IRS' power to investigate"
under 26 U.S.C. § 7602 is "broad and expansive." Id. (citation and internal
quotation marks omitted). "This authority, however, is not unbounded. The subject
of an IRS investigation may petition to quash a third-party summons pursuant to 26
In pertinent part, 26 U.S.C. § 7602(a) provides:
For the purpose of ascertaining the correctness of any return, making a
return where none has been made, determining the liability of any person
for any internal revenue tax or the liability at law or in equity of any
transferee or fiduciary of any person in respect of any internal revenue tax,
or collecting any such liability, the Secretary is authorized --
(1) To examine any books, papers, records, or other data which may
be relevant or material to such inquiry;
(2) To summon the person liable for tax or required to perform the
act, or any officer or employee of such person, or any person having
possession, custody, or care of books of account containing entries
relating to the business of the person liable for tax or required to
perform the act, or any other person the Secretary may deem proper,
to appear before the Secretary at a time and place named in the
summons and to produce such books, papers, records, or other data,
and to give such testimony, under oath, as may be relevant or
material to such inquiry[.]
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U.S.C. § 7609(b)," and a "now-familiar scheme of shifting burdens, designed to
ensure only the basic propriety of the investigation, applies to such petitions."
Mollison v. United States, 481 F.3d 119
, 122 (2d Cir. 2007) (per curiam).
First, the Government must establish a prima facie case for enforcement of
the summons by satisfying each of the four factors laid out by the Supreme Court
in Powell. Medlin, 986 F.2d at 466. Specifically, the Government must
demonstrate " that the investigation will be conducted pursuant to a legitimate
purpose,  that the inquiry may be relevant to the purpose,  that the
information sought is not already within the IRS' possession, [and 4] that the
administrative steps required by the Code have been followed." Id. (citation and
internal quotation marks omitted). In addition, the Government must show that no
"Justice Department referral is in effect with respect to such person." 26 U.S.C. §
7602(d)(1). "The IRS may satisfy its minimal burden merely by presenting the
sworn affidavit of the agent who issued the summons attesting to these facts."
Medlin, 986 F.2d at 466 (citation and internal quotation marks omitted).
"Thereafter, the burden shifts to the party contesting the summons to disprove one
of the four elements of the government's prima facie showing or convince the
court that enforcement of the summons would constitute an abuse of the court's
process." La Mura, 765 F.2d at 979-80. "The taxpayer's burden is a heavy one,
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which he must meet by disproving the actual existence of a valid civil tax
determination or collection purpose by the IRS." Mollison, 481 F.3d at 123
(citation and internal quotation marks omitted).
Here, Agent Keelan's affidavit establishes the requisite elements for
enforcement of the summonses. First, Keelan stated that he was conducting an
investigation to determine Elmes' tax liabilities for the years 2002 through 2004, a
purpose expressly authorized by Section 7602. See 26 U.S.C. § 7602(a) ("For the
purpose of . . . determining the liability of any person for any internal revenue
tax[.]"). Second, Keelan declared that he expected the records requested by the
summonses to reveal information necessary to a determination of Elmes' tax
liability by providing insight into Elmes' residency. Third, Keelan confirmed that,
as of the date of the investigation, the IRS was not already in possession of the
summoned information. Fourth, Keelan described how the summonses complied
with the Code's procedures. Lastly, Keelan declared that no "Justice Department
referral was in effect" with respect to Elmes. 26 U.S.C. § 7602(d).
The burden therefore shifts to Elmes either "to disprove one of the four
elements of the government's prima facie showing or convince the court that
enforcement of the summons would constitute an abuse of the court's process." La
Mura, 765 F.2d at 979-80. Elmes does not dispute the Government's assertion that
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no referral to the Department of Justice has been made, nor does he argue that
enforcement of the summonses would constitute an abuse of the court's process.
Instead, he alleges that he is a bona fide resident of the Virgin Islands, and that, for
reasons flowing from this status, the Government has failed to satisfy three of the
four Powell factors.2 We disagree.
Elmes contends, first, that the Government's investigation was not
conducted for a legitimate purpose. Specifically, Elmes argues that, because he is a
bona fide resident of the Virgin Islands, the United States has no authority either to
tax him or to investigate the possibility of taxing him. But a motion to enforce a
summons does not require us to determine whether Elmes is or is not a resident of
the Virgin Islands. The question we must address, rather, is whether an
investigation into Elmes' residency -- and, therefore, his taxability -- is a legitimate
purpose of the summons power. The plain language of Section 7602 indicates that
it is. See 26 U.S.C. § 7602(a) . Moreover, even assuming that Elmes is a resident of
the Virgin Islands, the IRS would still have the authority to investigate his tax
liabilities because the IRS is allowed to tax residents of the Virgin Islands to the
extent they have not paid their Virgin Islands taxes in full. See 26 U.S.C. §
932(c)(4); see also Mollison, 481 F.3d at 123. Accordingly, Elmes has not met his
Elmes does not argue that the IRS was already in possession of the requested
information when it issued the summonses "" the third Powell factor.
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"heavy" burden of refuting the Government's prima facie showing that the
summonses were issued for a "legitimate purpose."
Elmes next argues that the information sought was irrelevant to the
Government's investigation. The Internal Revenue Code authorizes the
Government to examine "any books, papers, records, or other data which may be
relevant or material" to its inquiry. 26 U.S.C. § 7602(a)(1). "The government's
burden of showing relevance in this context is slight. If the information sought by
an IRS summons might throw light upon the correctness of the taxpayer's return,
then it is deemed to be relevant." La Mura, 765 F.2d at 981 (internal quotation
We agree with the Government that the bank records and financial
statements it seeks from American Express and Northern Trust Bank "might throw
light upon" the question of Elmes' residency and, therefore, his tax liabilities. For
example, Elmes' financial records may demonstrate that he conducts all, or a great
majority of, his banking in Florida, rather than in the Virgin Islands. Similarly, his
credit card statements may highlight the restaurants he frequents, the dry cleaners
he uses, and a host of other transactions relevant to where he actually resides.
Accordingly, Elmes has not met his "heavy" burden of refuting the Government's
prima facie showing that the summonses were relevant to a determination of his
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Lastly, Elmes cites four cases -- United States v. Stuart, 489 U.S. 353
(1989), Barquero v. United States, 18 F.3d 1311
(5th Cir. 1994), Mazurek v.
United States, 271 F.3d 226
(5th Cir. 2001), and Lidas Inc. v. United States, 238 F.3d 1076
(9th Cir. 2001) -- for the proposition that the IRS must comply with the
procedures set forth in the Tax Implementation Agreement ("TIA") between the
United States and the Virgin Islands before issuing a summons regarding a resident
of the Virgin Islands.3 But these cases all involve summonses to American
institutions issued by the IRS at the request of foreign treaty partners and pursuant
to foreign investigations. It is certainly the case, as Elmes suggests, that when the
taxing authorities of Canada, Mexico, France, or the Virgin Islands seek financial
information from an American entity -- as was the case in Stuart, Barquero,
Mazurek and Lidas, respectively -- they should submit their requests to the IRS, as
provided in the various tax agreements and treaties between those countries and the
United States. But where, as here, the IRS summons an American bank pursuant to
its own investigation, the Government need only follow the Code's procedures.
See Mollison, 481 F.3d at 125 (quoting Powell, 379 U.S. at 58) ("[A] literal
reading of Powell requires compliance with only the Code's procedures, "˜in
The TIA was signed by the Secretary of the Treasury and a representative of the Virgin
Islands on February 24, 1987.
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particular, that the Secretary or his delegate, after investigation, has determined the
further investigation to be necessary and has notified the taxpayer in writing to that
Elmes concedes that he received proper notice, and the Government has said
it needs the summoned information for the purpose of determining Elmes' tax
liabilities. See Powell, 379 U.S. at 53-54 ("If, in order to determine the existence
or nonexistence of fraud in the taxpayer's returns, information in the taxpayer's
records is needed which is not already in the Commissioner's possession, we think
the examination is not "˜unnecessary' within the meaning of § 7605(b).").
Therefore, Elmes has failed to demonstrate that the summonses were procedurally
Elmes argues, also, that Agent Keelan, who issued the summonses, was not the
Secretary's authorized "delegate." But Internal Revenue Agents may issue summonses to third-
party witnesses where "the issuing officer's manager, or any supervisory official above that
level, has authorized the issuance of the summons in advance (evidenced by the supervisor's signature on the summons)[.]" IRS Delegation Order No. 4 Rev. 22, 1997 WL 33479254 (1997).
Here, both summonses bear the signature of Agent Keelan's Group Manager, Larry Harris.
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