United States District Court, D. Arizona
Joseph D. Meyer, Petitioner,
United States of America; Internal Revenue Service; and Nancy Phipps, Revenue Agent, Respondents.
G. Campbell United States District Judge
Joseph D. Meyer filed a motion to quash a third party summons
issued by the Internal Revenue Service and Revenue Agent
Nancy J. Phipps. Doc. 1. Respondents - the IRS, Phipps, and
the United States of America - replied, seeking denial of
Petitioner's motion, and filed their own motion to
dismiss the IRS and Phipps as parties. Doc. 5. The issues are
fully briefed. Docs. 1, 5, 11, 12. No party has requested
oral argument. For the reasons set forth below, the Court
will deny Petitioner's motion to quash and grant
Respondents' motion to dismiss.
has not filed income tax returns for the years 2013, 2014,
and 2015. Doc. 6, ¶ 3. Phipps, a Revenue Agent for the
IRS, was assigned to determine if Petitioner had tax
liability for those years. Id., ¶ 2. Phipps
contacted Petitioner on August 26, 2016, and provided him
with letters and publications about the IRS audit process.
Id., ¶¶ 4-6. One of these publications,
“Publication 1, Your Rights as a Taxpayer, ”
stated: “we sometimes talk with other persons if we
need information that you have been unable to provide, or to
verify information we have received.” Id.,
¶¶ 7, 10. Petitioner did not attend a scheduled
meeting with Phipps on September 7, 2016, and by September
18, 2016, Petitioner had not rescheduled the meeting,
responded to Phipps' correspondence, or provided
requested documents. Id., ¶¶ 11-13.
September 19, 2016, Phipps issued a third-party summons to
Wells Fargo Bank, N.A., seeking Petitioner's bank records
from 2013, 2014, and 2015. Id., ¶¶ 14, 20.
Phipps also sent Petitioner a copy of the summons and a
notice informing him of his right to file a petition to
quash, which he received on September 21, 2016. Id.,
¶¶ 17-19. Phipps received electronic access to the
responsive documents from Wells Fargo on October 6, 2016, but
she has not accessed them pending resolution of
Petitioner's motion. Id., ¶¶ 21-22.
the Court addresses the merits of Petitioner's motion,
the Court will first decide whether the IRS and Phipps are
Agent Phipps and the Internal Revenue Service.
argue that Petitioner fails to state a claim against the IRS
and Phipps because the United States is the only proper party
to this petition. Doc. 5 at 8. Petitioner asserts various
claims under 26 U.S.C. § 7602 against the IRS and Phipps
in her official capacity as Revenue Agent, and contends that the
Court has jurisdiction pursuant to §§ 7609(b)(2)(A)
and (h)(1). Doc. 1 at 1, 3-6. But Petitioner's
“basis for jurisdiction, 26 U.S.C. § 7609(b), does
not authorize a suit against the IRS in its own name.”
Kasian v. IRS, No. CV10-1462-PHX-JAT, 2010 WL
5103099, at *1 (D. Ariz. Dec. 9, 2010). And “[a] suit
against IRS employees in their official capacity is
essentially a suit against the United States.”
Id. (quoting Gilbert v. DaGrossa, 756 F.2d
1455, 1460 (9th Cir. 1985)). See also Luke v.
Abbott, No. SA CV96-176 GLT (EEX), 1996 WL 33518028, at
*8 (C. D. Cal. Dec. 4, 1996) (citing Kentucky v.
Graham, 473 U.S. 159, 165-66 (1985), and dismissing
government employee sued in official capacity as a
“redundant party” when government entity was also
does not state why the IRS is a proper party in light of this
authority, and asserts that Phipps is properly named only
because she issued the summons and allegedly failed to follow
proper procedures. Doc. 11 at 4. The IRS is an improper
respondent and Phipps is a redundant party. See
Kasian, 2010 WL 5103099, at *1; Luke, 1996 WL
3351802, at *8. The Court will dismiss Petitioner's
motion to quash as to the IRS and Phipps.
The Summons is Sufficient and Was Properly Issued.
argues that the summons was not issued in good faith (Doc 1.,
¶¶ 7-9); that it violates state and federal laws
(id., ¶ 10); and that the summons is deficient.
The Court disagrees.
the propriety of a summons is at issue, “[t]he IRS has
the initial burden of proving that the summons: (1) is issued
for a legitimate purpose; (2) seeks information relevant to
the purpose; (3) seeks information not already within the
IRS's possession; and (4) satisfies all of the
administrative steps required by the Internal Revenue
Code.” United States v. Dynavac, Inc., 6 F.3d
1407, 1414 (9th Cir. 1993) (citing United States v.
Powell, 379 U.S. 48, 57-58 (1964)). “The
government's burden is a slight one, and may be satisfied
by a declaration from the investigating agent that the
Powell requirements have been met. Once the prima
facie case is made, a ‘heavy' burden falls upon the
taxpayer to show an abuse of process, or the lack of
institutional good faith.” Id. (citations
has made a prima facie case that the summons was proper.
Phipps stated that she issued the summons for
Petitioner's banking records as part of her investigation
into Petitioner's income and potential tax liability.
Doc. 5 at 11; Doc. 6-2, ¶¶ 2, 9-10. Phipps stated
that the IRS does not have these records. Doc. 5 at 12; Doc.
6-2, ¶¶ 9-10. And Phipps stated that she complied
with all administrative steps required by the Internal
Revenue Code in issuing the summons. Doc. ...