M. CASEY RODGERS, Magistrate Judge
At a hearing held December 9, 2004, the Court by oral order granted the Government's Petition to Enforce Internal Revenue Service Summonses (doc. 1) against Respondents Donald P. Brown and Panama Don's Marketing Company (hereafter, "Brown"). The Court nevertheless directed that its order would be held in abeyance pending review of the parties' supplemental briefs on the following jurisdictional argument asserted by Brown, which is summarized by the Court as follows:
The Court's oral order further directed Brown to request the release of copies of certain grand jury proceedings to the Internal Revenue Service ("IRS"). Brown's counsel, William E. Frantz, has forward to chambers a copy of his letter dated December 31, 2004, in which this request was made. The clerk shall be directed to file Mr. Frantz' letter, under seal.
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26 U.S.C. § 7602(a) does not authorize the IRS to issue summonses for the purpose of investigating erroneous tax refunds. Accordingly, in this case in which the IRS seeks to investigate erroneous tax refunds for the tax years 1997, 1998, and 1999, the Court lacks subject matter jurisdiction to enforce the IRS' summonses as to those years.
Upon review of the parties' briefs on this issue (docs. 12, 14) and for the reasons that follow, the Court rejects Brown's argument. The oral order entered December 9, 2004, shall therefore no longer be held in abeyance and may be enforced in full.
Section 7601 of the Internal Revenue Code directs the Secretary of the Treasury, to the extent he deems practicable, "to proceed, from time, to time, through each internal revenue district and inquire after and concerning all persons therein who may be liable to pay any internal revenue tax. . . ." 26 U.S.C. § 7601. The Supreme Court has stated that "section [7601] thus flatly imposes upon the Secretary the duty to canvas and to inquire."Donaldson v. United States, 400 U.S. 517, 523, 91 S.Ct. 534, 27 L.Ed.2d 580 (1971).
Section 7602 provides the means by which the IRS fulfills the duties imposed by § 7601. Section 7602(a) provides in part that a summons may be issued "[f]or the purpose of ascertaining the correctness of any return . . . [or] determining the liability of any person for any internal revenue tax. . . ." 26 U.S.C. § 7602(a). The Eleventh Circuit has noted that the purpose of a summons issued pursuant to § 7602(a) is "`not to accuse, but to inquire.'" United States v. Bichara, 826 F.2d 1037, 1038 (11th Cir. 1987) (quoting United States v. Bisceglia, 420 U.S. 141, 146, 95 S.Ct. 915, 919, 43 L.Ed.2d 88 (1975)). Further, it is well-settled that, absent unambiguous directions to the contrary from the Congress, the summons authority of the IRS pursuant to § 7602(a) should be upheld to effect the broad inquiry demanded by § 7601. See Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310, 318, 105 S.Ct. 725, 83 L.Ed.2d 678 (1985). The Supreme Court has also observed that "[a]s a tool of discovery, the § 7602 summons is critical to the investigative and enforcement functions of the IRS. . . ." United States v. Arthur Young Co., 465 U.S. 805, 814, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984).
The district court is granted jurisdiction to enforce a § 7602(a) administrative summons by 26 U.S.C. §§ 7402(b) and 7604(a). See Donaldson, 400 U.S. at 523-25. To obtain judicial enforcement of a summons, the IRS must establish that the investigation is being conducted for a legitimate purpose; the inquiry may be relevant to that purpose; the information sought is not already in the IRS's possession; and the administrative steps required by the Internal Revenue Code have been followed. See United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-55, 13 L.Ed.2d 112 (1964); United States v. Medlin, 986 F.2d 463, 466 (11th Cir. 1993). These requirements, which impose only a "minimal burden" upon the IRS, may be satisfied by merely presenting a sworn affidavit of the agent who issued the summons attesting to these facts. Id. at 466. Once the IRS has made such a showing, the burden shifts to the party contesting the summons to disprove at least one of the four elements of the Government's prima facie showing or to convince the court that enforcement would constitute an abuse of its process. Id.;LaMura v. United States, 765 F.2d 974, 979-80 (11th Cir. 1985). At the December 9, 2004, hearing the Court found that the IRS had successfully established its prima facie showing underPowell and that Brown had not met his burden of disproving at least one of the four elements or convincing the Court that enforcement would constitute an abuse of its process. The Court need not and will not revisit those findings now.
Section 7402(b) provides:
If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data.
The language of section 7604(a) is virtually identical.
With respect to the threshold jurisdictional issue raised by Brown, the Court concludes that little discussion is required. As noted by the Eleventh Circuit in the case Brown cites in in his memorandum, the proper procedure by which the IRS can " collect an erroneous refund is a refund suit under section 7405 or a new assessment, including a new notice of deficiency." Bilzerian v. United States, 86 F.3d 1067, 1069 (11th Cir. 1996) (emphasis added). In the instant case, however, the IRS is not presently seeking to collect an erroneous refund nor, to the Court's knowledge, has it made any formal accusations against him. Rather, the record reflects that at this time the IRS is merely conducting an inquiry in order to ascertain the correctness of Brown's returns and/or to determine his tax liability. (See doc. 1, IRS Agent Dorothy Sharpe's Declaration in support of the summonses, at ¶¶ 2 and 3: "I am conducting an investigation for the purpose of ascertaining the income tax liability and tax refunds of previously paid income taxes. . . ."). Both are proper purposes under § 7602(a). Brown argues that a close reading ofDonaldson, supra, as well as § 7602(a) and other sections of the Internal Revenue Code, necessarily yields the conclusion that § 7602(a) does not authorize the issuance of summonses for the purpose of examining prior erroneous tax refunds. This argument, however, is strained and wholly unsupported by reference to any relevant case law or other authority. Moreover, the conclusion that Brown's argument should be rejected seems compelled in light of the Supreme Court's instruction that, unless the Congress unambiguously directs otherwise, courts are obliged to uphold the IRS' summons authority pursuant to § 7602(a). See Tiffany Fine Arts, Inc., 469 U.S. at 318. Brown has not shown, and the Court has not located any authority which suggests, that the Congress has so spoken with respect to investigations into erroneous tax refunds.
In sum, the Court finds that § 7602(a) authorizes the IRS to issue summonses for the purpose of investigating erroneous tax refunds, which administrative summons this Court has jurisdiction to enforce pursuant to 26 U.S.C. §§ 7402(b) and 7604(a). The Court therefore directs that its oral order granting the petition to enforce the two IRS summonses at issue in this case shall no longer be held in abeyance and may be fully enforced.
Accordingly, it is ORDERED:
1. The Court's oral order entered December 9, 2004, which granted without restriction the Government's Petition to Enforce Internal Revenue Service Summonses (doc. 1), shall no longer be held in abeyance and may be fully enforced.
2. The clerk shall file, under seal, the letter dated December 31, 2004, from Brown's attorney, William E. Frantz.
DONE AND ORDERED.