Government Brief Filed in Clarke Summons Enforcement Case

After obtaining a one-month extension, the government has now filed its response brief in the Eleventh Circuit in the Clarke summons enforcement case. See our prior reports here.  The brief raises three points in response to the appellants’ argument that the IRS had an improper purpose in seeking to enforce the summonses after Tax Court litigation had begun.

First, the government argues that the appellants are essentially arguing for a blanket rule that a summons cannot be enforced once litigation has commenced in the Tax Court. Such a restriction is not found in the statute, and accordingly the government argues that the appellants’ position violates the Supreme Court’s instruction that “restrictions upon the IRS summons power should be avoided absent unambiguous directions from Congress.” Tiffany Fine Arts v. Commissioner, 469 U.S. 310, 318 (1985).  Second, the government argues that, in any event, the appellants are misguided in arguing that the enforcement decision was an improper evasion of the Tax Court’s discovery rules.  The government contends that Ash v. Commissioner, 96 T.C. 459, 472 (1991), establishes to the contrary that “the Tax Court has categorically ruled that summonses issued prior to the commencement of litigation . . . do not threaten the integrity of its discovery rules.”  The government adds that, if summons enforcement is judged to be an evasion of the Tax Court’s discovery rules, the proper remedy would be for the Tax Court itself to issue a protective order limiting the use of evidence obtained through the summons, not for the district court to quash the summons.  Third, the government argues that, as a matter of law, the enforceability of a summons must be judged as of the time it is issued.  If the summons was issued for a valid investigative purpose, that is enough, and it is irrelevant what the motivation may have been for deciding to bring an enforcement action months later.

With respect to the appellants’ objection to the district court’s failure to allow introduction of new evidence on remand, the government argues that the appellants did not make an offer of proof and hence they failed to preserve their objection. In any event, the government continues, the court acted well within its discretion in declining to delay the enforcement action further when there was no apparent need for further evidentiary proceedings.

The appellants’ reply brief is due December 14.

Clarke – U.S. Answering Brief in CA11