DENNIS L. BECK, U.S. Magistrate Judge.
On April 23, 2001, plaintiff filed a motion to quash summons under 26 U.S.C. § 7602 and 7609, and on June 26, 2001, defendant United States filed a motion for summary enforcement of Internal Revenue Service (hereinafter "IRS") summonses. The motions were heard on July 27, 2001, before the undersigned. John Phillips appeared for plaintiff and Traci Patterson appeared for defendant.
Plaintiff incorrectly named as a defendant the IRS revenue agent, Rosyln Brooks. The United States of America is the proper defendant. Therefore, all references to the defendant is to the United States of America.
DISCUSSION
Section 1345 of Title 28 provides that the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof which is expressly authorized to sue by an Act of Congress. Section 7602 of Title 26 confers authority on the Secretary of Treasury to examine records, to issue summonses to any individual or their representative or to any person having possession of relevant material, and to take such testimony of a person concerned for the purpose of determining the tax liability of the person.
In the present action, defendant seeks to determine the income tax liability of plaintiff for the taxable year 1998. Section 7602 of Title 26 authorizes defendant to issue summon to any individual for the purpose of determining the tax liability of any person. Section 7604(b) of Title 26 authorizes the IRS to seek enforcement of the summonses in a district court when individuals fail to comply with a summons.
I. Motion to Quash
Plaintiff makes several contentions in arguing that this court should quash the IRS "summonses. First plaintiff contends that Rosyln Brooks, an IRS revenue agent, unlawful. issued the summonses to harass him. Plaintiff asserts that for the IRS to issue a summons. there must be a tax liability and there has been no determination that he has a tax liability. "Next, plaintiff contends that the summonses are defective and unenforceable because (1) they are overly broad and constitutes an unreasonable search under the Fourth Amendment; (2) they are denying him the exercise of his rights to refuse to produce personal papers as guaranteed by the Fourth Amendment; (3) the information obtained by the summonses could be used to gather evidence for a criminal prosecution; (4) the summonses are being used to circumvent the administrative remedies available to plaintiff (5) the summonses were improperly signed by an revenue agent; (6) the summonses had not been properly attested by an authorized officer; (7) all books, papers, and other records that are required by law are already in the possession of the IRS; (8) the summonses improperly state that there is a tax liability when there has been none declared; (9) the summonses do not conform to the Federal Rules of Civil Procedure; (10) plaintiff was previously audited for the tax years 1996 and 1997 and the trust accounts that form the subject of this action were not audited for those years; and (11) plaintiff has already established that each trust is independent of each other and from him. In his reply brief, plaintiff also contends that service of the subpoena upon trustee is defective pursuant to Internal Revenue Code sections 7602 and 7603, in that it was not personally served on the trustee. Lastly, plaintiff contends that the Brooks declaration fails to set forth admissible facts establishing a prime facie case for enforcement of the subpoena.
He appears to claim that he has no ownership in the trust at issue and the trust assets were not used in calculating his tax liability.
At the outset, the court rejects plaintiff's Fourth Amendment arguments. As defendant correctly points out, a summons is not overly broad as long as the documents requested are described with sufficient particularity. See Oklahoma Press Publishing Co. Walling, 327 U.S. 186, 209 (1946). Moreover, insofar as the records sought are a bank's records, there is no Fourth Amendment violation if the Bank produces them. See United States v. Vallance, 793 F.2d 1003 (9th Cir. 1986). Additionally, as previously discussed, Congress has authorized the IRS to examine records and issue summonses for the purpose of determining tax liability of individuals. See 26 U.S.C. § 7602 .
Plaintiff's Fifth Amendment argument also fails. It is well-settled that a taxpayer has no Fifth Amendment rights in the disclosure of third-party records. See Harris v. United States, 758 F.2d 456, 457 (9th Cir. 1985); United States v. Miller, 425 U.S. 435, 443 (1976); United States it Centennial Builders, Inc., 747 F.2d 678, 683 (11th 1984); Couch v. United States, 409 U.S. 322, 93 S.Ct. 611 (1973); Doe v. United States, 253 F.3d 256 (6th Cir. 2001). Additionally, defendant has represented that no criminal referral has been made. See Kerr United States, 801 F.2d 1162, 1164 (1986).
Plaintiff's other arguments also fail. As discussed, section 7602 of Title 26 authorizes defendant to issue summonses to any individual for the purpose of determining the tax liability of any person. Here, defendant is investigating whether plaintiff has a tax liability for 1998. Thus, obtaining the relevant information is necessary to make that determination.
Plaintiffs Fed.R.Civ.Proc. 4(b) argument is also without merit. Rule 4 of the Federal Rules of Civil Procedure applies to judicial summonses, i.e., a summons issued by a district court. Here, the summonses issued were administrative summonses. Thus, the Federal Rules of Civil Procedure do not apply. A revenue agent has had the authority conferred upon the to issue administrative summonses. See United States v. Derr, 968 F.2d 943, 947 (9th Cir. 1992).
Lastly, plaintiff's contention that the service of the subpoena upon the trustee is defective pursuant to Internal Revenue Code sections 7602 and 7603, in that it was not personally served by the trustee, is also rejected. 26 U.S.C. § 7603 (b) provides that a summons to a third-party records keeper may be served by certified or registered mail. Here, the summonses were served by certified mail. See Declaration of Roslyn Brooks, pp. 2, ¶ 5. This is proper under the code.
II. Summary Enforcement of Summonses
As discussed, defendant issued summonses to California Federal Bank pursuant to authority under 26 U.S.C. § 7602.
Congress has authorized the IRS to examine records and issue summonses for the purpose of determining tax liability of individuals. 26 U.S.C. § 7604. The government may seek judicial enforcement of the summonses if the summoned party refuses to produce the requested information. 26 U.S.C. § 7604. The government must show the following: (1) that the investigation is conducted pursuant to a legitimate purpose; (2) the inquiry is relevant to the purpose; (3) the information sought is not already within the Commissioners's possession; and (4) the administrative steps required by the Code have been followed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255 (1964). "To establish need for judicial enforcement, this showing need only be minimal. . . . [T]he statute must be read broadly in order to ensure that the enforcement powers of the IRS are not unduly restricted." Liberty Financial Services v. United States, 778 F.2d 1390, 1392 (9th Cir. 1985).
"[O]nce the government has established the Powell requirements, `those opposing enforcement of a summons . . . bear the burden to disprove the actual existence of a valid civil tax determination or collection purpose by the Service. . . . Without a doubt this burden is heavy one.'" United States v. Jose, 131 F.3d 1325, 1328 (9th Cir. 1997) (quoting United States v. LaSalle Nat'l Bank, 437 U.S. 298, 316, 98 S.Ct. 2357, 2367 (1978). "`The taxpayer must allege specific facts and evidence to support his allegations' of bad faith or improper purpose." Id. at 1329 (quoting Liberty, 778 F.2d at 1393).
The government has submitted a declaration of Revenue Agent, Rosyln Brooks. In her declaration, Ms. Brooks avers that she has been assigned the examination of plaintiff for the purpose of determining the correct income tax liability for him. Declaration of Rosyln Brooks, pp. 1, ¶ 3. She further indicates that the records are not already in the possession of the Internal Revenue Service. Declaration of Rosyln Brooks, pp. 2, ¶ 12. She outlines the administrative steps taken by the IRS. Declaration of Rosyln Brooks. pp. 2, ¶ 12. Thus, the declaration clearly satisfies Powell's requirements.
Insofar as defendant has filed the requisite declaration demonstrating that Powell's requirements have been established and plaintiff has failed to show an abuse of process or improper purpose by the IRS, the Court RECOMMENDS that defendant's motion for summary enforcement of service of summonses be GRANTED.
These findings and recommendations are submitted to the Honorable Oliver W. Wanger, United States District Judge, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fifteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and "Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).