Cases We've Won!

John L. CHEEK, Petitioner,
V.
UNITED STATES.

No. 89-658.
Argued Oct. 3, 1990.

Decided , Jan. 8, 1991.

Defendant was convicted in the United States District Court for the Northern District of Illinois, Paul E. Plunkett, J., of attempting to evade income taxes and failing to file income tax returns, and he appealed. The Court of Appeals for the Seventh Circuit affirmed, 882 F.2d 1263. The United States Supreme Court, ,Justice White, held that:

(1) defendant was not entitled to acquittal based on good-faith belief that income tax law was unconstitutional as applied to him and thus did not legally impose any duty on him, but

(2) defendants good-faith belief that the tax laws did not impose any duty on him did not have to be objectively reasonable in order to be considered by the jury.

Vacated and remanded.

.Justice Scalia, filed an opinion concurring in the judgment.

Justice Blackmun filed a dissenting opinion in which Justice Marshall joined.

Justice Souter did not participate.

Opinion on remand, 931 F.2d 1206.

1. Criminal Law ~313

Based on the notion that the law is definite and knowable, common law presumed that every person knew the law.

2. Internal Revenue ~5263.35

"Willfulneos" for purposes of criminal tax laws requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of the duty, and that he voluntarily anti intentionally violated that dutty. 26 U.S.C.A. §~ 7201, 7208. Sec publication Words and Phrases [or other judicial constructions and definitions].

3. Criminal Law ~20

Where issue is whether defendant knew of duty purportedly imposed by statute or regulation he is accused of violating, if Government proves actual knowledge of the pertinent legal duty, the prosecution without more, has satisfied the knowledge component of the willfulness requirement.

4. Internal Revenue 5300

Government has not proved that defendant was aware of the duty imposed by the tax law which he is accused of willfully disobeying if the jury credits a good-faith misunderstanding and belief submission, whether or not the claimed belief or misunderstanding is objectively reasonable. 21; U.S.C.A.§~ 7201, 7203.

5. Internal Revenue 5263.35

Defendant's good-faith belief need not be objectively reasonable in order for it to negate Government's evidence purporting to show defendant's awareness of his duties under the tax laws. 26 U.S.C.A. 7201, 7203.

6. Constitutional Law 38

Where possible, court interprets congressional enactments so as to avoid raising serious constitutional questions.

7. Internal Revenue 5317

It was error to instruct the jury to disregard evidence of defendant's understanding that, within meaning of the tax laws, he was not person required to file a return or to pay income taxes and that wages are not taxable income, as incredible as those misunderstandings of and beliefs about the tax law might be. 26 U.S.C.A. §~ 7201, 7203.

8. Internal Revenue 5263.35

Defendant's good-faith belief that income tax law was unconstitutional as applied to him did not provide defense to charges of willfully attempting to evade income taxes and failing to file income tax returns, not- withstanding claim that, because of his belief in the unconstitutionality of the tax laws as applied to him, the income tax laws could not legally impose any duty upon him of which he should have been aware. 26 U.S.C.A. 7201, 7203. 605

Syllabus

Petitioner Cheek was charged with six counts of willfully failing to file a federal income tax return in violation of 7203 of the Internal Revenue code (code) and three counts of willfully attempting to evade his income taxes in violation of 7201.

Although admitting that he had not filed his returns, he testified that he had not acted willfully because he sincerely believed, based on his indoctrination by a group believing that the Federal Tax system is unconstitutional and his own study, that the tax laws were being unconstitutionally enforced and that his actions were lawful.

In instructing the jury, the court stated that an honest but unreasonable belief is not a defense and does  not negate willfulness, and that Check's beliefs that Wages are not income and that he was not a taxpayer within the meaning of the Code were not objectively reasonable. It also instructed the jury that a person's opinion that the tax laws violate his constitutional rights does not constitute a good-faith misunderstanding of the law. Cheek was convicted, and the Court of Appeals affirmed.

Held:

1. A good-faith understanding of the law or a good-faith belief that one is not violating the law negates willfulness, whether or not the claimed belief or misunderstanding is objectively reasonable. Statutory willfulness, which protects the average citizen from prosecution for innocent mistakes made due to the complexity of the tax laws.  United States Vs. Murdock 290 U.S 389, 54 S. Ct. 223, 78 L. Ed. 381, is the voluntary intentional violation of a known legal duty. United States VS. Pomponio, 429 U.S 10 97 S.Ct 22, 50 L.Ed.2d 12.  Thus, if the jury credited Cheek's assertion that he truly believed that the Code did not treat wages as income, the Government would not have carried its burden to prove willfulness, however unreasonable a court might deem such a belief. Characterizing a belief as objectively unreasonable transforms what is normally a factual inquiry into a legal one, thus preventing a jury from considering it.

And forbidding a jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment's jury trial provision, which this interpretation of the statute avoids. Of course, in deciding whether to credit Cheek's claim, the jury is free to consider any admissible evidence showing that he had knowledge of his legal duties. Pp. 609-612.

It was proper for the trial court to instruct the jury not to consider Cheek's claim that the tax laws are unconstitutional, since a defendant's views about the tax statutes' validity are irrelevant to the issue of willfulness and should not be heard by a jury. Unlike the claims in the Murdock—Pomponio line of cases, claims that Code provisions are unconstitutional do not arise from innocent mistakes caused by the Code's complexity. Rather, they reveal full knowledge of the provisions at issue and a studied conclusion that those provisions are invalid and unenforceable. Congress could not have contemplated that a taxpayer, without risking criminal prosecution, could ignore his duties under the Code and refuse to utilize the mechanisms Congress provided to present his invalidity claims to the courts anti to abide by their decisions. Cheek was free to pay the tax, file for a refund and, if, denied present his claims to the courts. Also, without paying the tax, he could have challenged claims of tax deficiencies in the Tax Court. Pp. 612-613.

Justice WHITE delivered the opinion of the Court.

Title 26, § 7201 of the United States Code provides that any person "who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof" shall be guilty of a felony. Under 26 1T.SC. § 7203, [a]ny person required under this title... or by regulations made under authority thereof to make a return…who willfully fails to make such return" shall be guilty of a misdemeanor.  This case turns on the meaning of the word "willfully" as used in

Petitioner John L. Cheek has been a pilot for American Airlines since 1973. He filed federal income tax returns through 1979 but thereafter ceased to file returns." He also claimed an increasing number of withholding allowances eventually claiming 60 allowances by mid-1980-and for the years 1981 to 1984  indicated on his W-4 forms that he was exempt from federal income taxes. In 1983, petitioner unsuccessfully sought a refund of all tax withheld by his employer in 1982. Petitioner's income during this period at all times far exceeded the minimum necessary to trigger the statutory filing requirement.

As a result of his activities, petitioner was for 10 violations of federal law. He was charged with six counts of willfully failing to file a federal income tax return for the years 1980, 1981, and 1983 through 1986, in violation of § 7203. He was further charged with three counts of willfully attempting to evade his income taxes for the years 1980, 1981, and 1983 in violation of 26 U.S.C. § 7201. In those years, American Airlines withheld substantially less than the amount of tax petitioner owed because of the numerous allowances and exempt status he claimed on his W-4 forms.  The tax offenses with which petitioner was charged are specific
intent crimes that require the defendant to have acted willfully.

At trial, the evidence established that between 1982 and 1986, petitioner was involved in at least four civil cases that challenged various aspects of the federal income tax system. In all four of those cases, the plaintiffs were informed by the courts that many of their arguments, including that they were not taxpayers within the meaning of the tax laws, that wages are not income, that the Sixteenth Amendment does not authorize the imposition of an income tax on individuals, and that the Sixteenth Amendment is unenforceable, were frivolous or had been repeatedly rejected by the courts. During this time period, petitioner also attended at least two criminal trials of persons charged with tax offenses. In addition, there was evidence that in 1980 or 1981 an attorney had advised Cheek that the courts had rejected as frivolous the claim that wages are not income."

Cheek represented himself at trial and testified in his defense. He admitted that he had not filed personal income tax returns during the years in question. He testified that as early as 1978, he had begun attending seminars sponsored by, and following the advice of, a group that believes, among other things, that the federal tax system is unconstitutional. Some of the speakers-at these meetings were lawyers who purported to give professional opinions about the invalidity of the federal income tax laws. Cheek produce a letter from an attorney stating that the Sixteenth Amendment did not authorize a tax on wages and salaries but only on gain or profit. Petitioner's defense was that, based on the indoctrination he received from this group and from his own study, he sincerely believed that the tax laws were being unconstitutionally enforced and that his actions during the 1980-1986 period were lawful. He therefore argued that he had acted without the willfulness required for conviction of the various offenses with which he was charged.

In the course of its instruction, the trial court advised the jury that to prove "willfulness" the government must prove the voluntary and intentional violation of a known legal duty, a burden that could not be proved by showing mistake, ignorance, or negligence.

The court further advised the jury that an objectively reasonable good-faith misunderstanding of the law would negate willfulness. But mere disagreement with the law would not.

After several hours of deliberation, the jury sent a note to the judge that stated in part:

We have a basic disagreement between some of us as to if Mr. Cheek "honestly and reasonably believed that he was not required to pay income taxes or to file tax returns," Page 32 [the relevant jury instruction] discusses good faith misunderstanding & disagreement. Is there any additional clarification you can give us on this point?'" Id., at 85.

The district Judge responded with a Supplemental instruction containing the following statements:

"[A]  person's opinion that the tax laws violate his constitutional rights does not constitute a good-faith misunderstanding of the law. Furthermore, a person's disagreement with the governments tax collection systems and policies does not constitute it good faith misunderstanding of the law." Id. at 86.

At the end of the first day of deliberation, the jury sent out another note saying that it still could not reach a verdict because "'[w]e are divided (in the issue as to if Mr. Cheek honestly & reasonably believed that he was not required to pay income tax.'" Id, at 87.

When the jury resumed its deliberations, the district Judge gave the jury an additional instruction. This instruction stated in part that "[a]n honest but unreasonable belief is not a defense and does not negate willfulness," Id., at 88, and that "advice or research resulting in the conclusion that wages of a privately employed person are not income or that the tax laws are unconstitutional is not objectively reasonable and cannot serve as the basis for a good-faith misunderstanding of the law. Ibid. The court also instructed the jury that "persistent refusal to acknowledge the law does not constitute a good-faith misunderstanding of the law." Ibid. Approximately two hours later, the jury returned a verdict finding petitioner guilty on all counts.

Petitioner appealed his convictions, arguing that the District Court erred by instructing the jury that only an objectively reasonable misunderstanding of the law negates the statutory willfulness requirement. The United States Court of Appeals for the Seventh Circuit rejected that contention and affirmed the convictions. 882 F.2d 1263 (1989). In prior-cases, the Seventh Circuit had made clear that good-faith misunderstanding of the law negates willfulness only if the defendant's beliefs are objectively reasonable; in the Seventh Circuit, even actual ignorance is not a defense unless the defendant's ignorance was itself objectively reasonable. See, e.g., United States v. Buckner, 830 F.2d 102 (1987).

In its opinion in this case, the court noted that several specified beliefs, including the beliefs that the tax laws are unconstitutional and that wages are not income, would not be objectively reasonable.  Because the Seventh Circuit's interpretation of "willfully" as used in these statutes conflicts with the decisions of several other Courts of Appeals, see, e.g., United States v. Whiteside, 810 F.2d 1306, 1310-1311 (CA5 1987); United States v. Phillips, 775 F.2d 262, 263-264 (CA1O 1985); United States v. Aitken, 755 F.2d 188, 191-193 (CAl 1985, we granted certiorari, 493 U.S. 1068, 110 S.Ct. 1108, 107 L.Ed.2d 1016 (1990).

II

The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system. See, e.g., United States v. Smith, 5 Wheat. 153, 182, 5 LEd. 57(1820) (Livingston, J., dissenting); Barlow vs. United States, 7 Pet. 404, 411, 8 L.Ed. 728 (1833); Reynolds v. United States, 98 U.S. 145, 167, 25 L.Ed. 244 (1879); Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68, 30 S.Ct. 663, 666, 54 L.Ed. 930 (1910); Lambert vs. California, 355 U.S. 225, 228, 78 S.Ct. 240, 242, 2 L.Ed.2d 228 (1957); Liparota v. United States, 471 U.S. 419, 441, 105 S.Ct. 2084, 2096, 85 L.Ed.2d 434 (1985) (WHITE, J., dissenting); 0. Holmes, The Common Law 47-48 (1881).

Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law.  This common-law rule has been applied by the Court in numerous cases construing criminal statutes. See, e.g., United States vs. International Minerals & Chemical Corp., 402 U.S. 558, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971); Hamling v. United States, 418 U.S. &, 119-124, 94 S.Ct. 2887, 2808-2911, 41 L.Ed.2d 590 (1974); Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 LEd. 367 (1952).

The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly soffened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term "willfully" as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws. In United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 LEd. 381 (1933), the Court recognizes that: "Congress did not intend that a person, by reason of a bona file misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct." 1(1., at 396, 54 S.Ct., at 226.

The Court held that the defendant was entitled to an instruction with respect to whether he acted in good faith based on his actual belief. In Murdock. the court interpreted the term "willfully" as used in the criminal tax statutes generally to mean "an act alone with a bad purpose," Id., at 394. 54 S.Ct., at 225, or with "an evil motive" Id., at 395, 54 S.Ct., at 225.

Subsequent decisions have refined this proposition. In United States vs. Bishop, 412, U.S 346, 93 S. Ct. 2008, 36 L.Ed.2d 941 (1973), we described the term "willfully" as connoting "a voluntary, intentional violation of a known legal duty," id., at 360, 93 S. Ct., at 2017, and did so with specific reference to the "bad faith or evil intent" language employed in Murdock. Still later, United States v. Pomponio, 429 U.S. 10, 97 S.Ct. 22, 50 LEd.2d 12 (1976) (per curiam), addressed a situation in which several defendants had been charged with willfully filing false yax returns. The jury was given an instruction on willfulness similar to the standard set forth in Bishop. In addition, it was instructed that "'glood motive alone is never a defense where the act done or omitted is a crime.'" Id, at 11, 97 S.Ct., at 23. The defendants were convicted but the Court of Appeals reversed, concluding that the latter instruction was improper because the statute required a finding of bad purpose or evil motive.Ibid.

We reversed the Court of Appeals, stating that "the Court of Appeals incorrectly assumed that the reference to an 'evil motive in United States vs. Bishop. supra and prior cases,' ibid., "requires proof of any motive other than an intentional violation of a known legal duty." Id.. at 12, 97 S.Ct., at 23. As "the other Courts of Appeals that have considered the question have recognized, willfulness in this context simply means a voluntary, intentional violation of a known legal duty." Ibid. We concluded that after instructing the jury on willfulness, "an additional instruction on good faith was unnecessary." Id, at 13, 97 S.Ct., at. 24. Taken together, Bishop and Pomponio conclusively establish that the standard for the statutory willfulness requirement is the "voluntary, intentional violation of a known legal duty."

III

Cheek accepts the Pomponio definition of willfulness, Brief for Petitioner 5, and n. 4, 13, 36; Reply Brief for Petitioner 4, 6-7, 11, 13, but asserts that the District Court's instruction and the Court of Appeals' opinion departed from that definition. In particular, he challenges the ruling that a good-faith misunderstanding of the law or a good-faith belief that one is not violating the law, if it is to negate willfulness, roust be objectively reasonable. We agree that the Court of Appeals and the District in this respect.

A

Willfulness, as construed by our prior decisions tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty. We deal first with the case where the issue is whether 'the defendant knew of the duty purportedly imposed by the provision of the statute or regulation he is accused of violating, a case in which there is no claim that the provision at issue is invalid. In such a case, if the Government proves actual knowledge of the pertinent legal duty, the prosecution, without more, has satisfied the knowledge component of the willfulness requirement. But carrying this burden requires negating a defendants claim of ignorance' of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws.

This is so because one cannot be aware that the law imposes a duty upon him and yet be ignorant of it, misunderstand the law, or believe that the duty does not exist. In the end, the issue is whether, based on all the evidence, the Government has proved that the defendant was aware of the duty at issue, which cannot be true if the jury credits a good-faith misunderstanding and belief submission, whether or not the claimed belief or misunderstanding is objectively reasonable.

In this case, if Cheek asserted that he truly believed that the Internal Revenue Code did not purport to treat wages as income, and the jury believed him, the Government would not have carried its burden to prove willfulness, however unreasonable a court might seem such a belief. Of course, in deciding whether to credit Cheek's good-faith belief claim, the jury would be free to consider any admissible evidence from any source showing that Cheek was aware of his duty to file a return and to treat wages as income, including evidence showing his awareness of the relevant provisions of the Code or regulations, of court decisions rejecting his interpretation of the tax law, of authoritative rulings of the Internal Revenue Service, or of any contents of the personal Income tax return forms and accompanying instructions that made it plain that wages should be returned as income.

We thus disagree with the Court of Appeals' requirement that a claimed good-faith belief must be objectively reasonable if it is to be considered as possibly negating the Government's evidence purporting to show a defendant's awareness of the legal duty at issue. Knowledge and belief are characteristically questions for the fact finder, in this case the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury from considering it. It would of course be proper to exclude evidence having no relevance or probative value with respect to willfulness; but it is not contrary to common sense, let alone impossible, for a defendant to be ignorant of his duty based on an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Six Ammendment's jury trial provisions. Cf. Francis vs. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed .2d 344 (1985); Sandstrom vs. Montana, 442 U.S. 510, 99 S.Ct 2450, 61 L.Ed.2d 39 (1979); Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 LEd. 288 (1952).

It is common ground that this court, where possible, interprets congressional enactments so as to avoid raising serious constitutional questions. See, e.g., Edward J. J. DeBartolo Corp. vs. Florida Gulf Coast Building & constructions Trade Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988); Crowell v. Benson, 285 U.S. 22, 62, and n. 30, 52 S.Ct. 285, 296, and n. 30, 76 L.Ed. 598 (1932); Public Citizen vs, Department of Justice, 491 U.S. 440, 465-466, 109 S.Ct. 2558, 2572-2573, 105 L.Ed.2d 377 (1989)

It was therefore error to instruct the Jury to disregard evidence of Cheek's understanding that, within the meaning of the tax laws, he was not a person required by law to file a return or to pay income taxes and that wages are not taxable income as incredible as such misunderstandings of and beliefs about the law might be. Of course, the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws and will find that the Government has carried its burden of proving knowledge.

                       United States Court of Appeals,
                            Eleventh Circuit.

Robert B. CLARKSON,
          Plaintiff-Appellant,

              V.                                                    }

INTERNAL REVENUE SERVICE and
      John Henderson, District Director,
           Defendants-Appellant,.
                                                                                                 No. 80-7973.
United States Court of Appeals,
Eleventh Circuit.

June 21, 1982.

In cases arising under Freedom of Information Act and Privacy Act of 1974, the United States District Court for the Northern District of Georgia, at Atlanta, Richard C. Freeman, .J., granted summary judgment for the Internal Revenue Service and its director. Plaintiff appealed. The Court of Appeals, Tuttle, Circuit Judge, held that:

1. District Court should have considered whether, in its discretion, award of costs to Plaintiff would be justified;
2. to extent that IRS has engaged in practice of collecting information protected by Privacy Act, unconnected to any investigation in past, present or anticipated violations of statutes which it is authorized to enforce, Privacy Act has been violated;
3. though language of one paragraph of Privacy Act expressly limits its applicability to records contained within system of records, other paragraphs are not subject to such restrictions, and thus at least with respect to violations of section qualifiedly prohibiting agency from maintaining records describing how any individual exercises First Amendment right, plaintiff might be entitled to have offending records amended or expunged even if records were not maintained within agency's system of records; but
4. Privacy Act subsection providing general overall prohibition against collection and maintenance of information irrelevant to purposes of agency and subsection requiring maintenance of records do not apply to records not incorporated within agency's system of records.

Affirmed in part, and reversed and remanded in part. Tjoflat and Clark, Circuit Judges, filed specially concurring opinions.

1. Federal Civil Procedure 2659
   Where one motion was served within time period prescribed  by rule, appellate jurisdiction was properly invoked, and district court properly treated new trial motion and summary judgment motions as motions for reconsideration. Fed.Rules Civ. Proc. Rule 59, 28 U.S.C.A.; F.R.A.P. Rule 4(a)(4), 28 U.S.C.A.
2. Records 67
   In context of Freedom of Information Act litigation, award of attorney fees and costs is proper only where party seeking award has "substantially prevailed" in the litigation and where court, in its discretion, determines that such award is justified in particular case. 5 U.S.C.A. § 552(a)(4)(E).
3. Records 67
   Plaintiff was not entitled to award of attorney fees for his  pro se representation in Freedom of Information Act suits. 5 U.S.C.A. § 552a(a)(4)(E).
4. Records 67
   To find whether party has substantially prevailed in suit under Freedom of Information Act, court should consider whether prosecution of action could reasonably be regarded as necessary to obtain the information and whether the action had substantial causative effect on delivery of the information. 5 U.S.C.A. § 552(a)(4)(E).
5. Records 67
   In suits under Freedom of Information Act, record demonstrated that suits could reasonably be regarded as necessary and that they had substantial causative effect on delivery of information, and thus District Court should have considered whether discretionarv award if costs was justified. 5 U.S.C.A. § 552(a)(4)(E).
6. Records 3l
   Objective of law enforcement exception to Privacy Act subsection qualifiedly prohibiting agency from maintaining record describing how individual exercises First Amendment rights was to make certain that political and religious activities are not used as cover for illegal or subversive activities, and Congress by enacting exception did not intend to dilute First Amendment guarantees by authorizing maintenance of files on persons who are merely exercising their constitutional rights. 5 U.S.C.A. § 552a(e)(7); U.S.C.A.Const.Amend. 1; Privacy Act of 1974, § 6, 88 Stat. 1896.
7. Records 31
   To extent that Internal Revenue Service has engaged in practice of collecting information protected by Privacy Act, unconnected to any investigation of past, present or anticipated violations of statutes which it is authorized to enforce, Privacy Act has been violated. 5 U.S.C.A. § 552a(b)(7), (e)(7).
8. Records 31
   Though Privacy Act expressly provides for injunctive relief for two types of agency misconduct i e wrongful withholding of documents and wrongful refusal to amend record, remedy for violations and all other provisions of Act is limited to recovery of damages upon showing that agency acted in intentional or willful manner. 5 U.S.C.A. § 552a(d)(1 ~3), (e)(7), (g)(2-4).
9. Records 31
   Though language of one paragraph of Privacy Act expressly limits its applicability to records contained within system of records, other paragraphs are not subject tosuch restrictions, and thus at least with respect to violations of section qualifiedly prohibiting agency from maintaining record describing how any individual exercises First Amendment right, plaintiff may be entitled to have offending reeords amended or expunged even if records are not maintained within agency's system of records. 5U.S.C.A. §~ 552, 552a(d)(1- 3), (e)(7); U.S.C. A.Const.Amend. 1.
10. Records 31, 50
    Individual may utilize Privacy Act or Freedom of Information Act or both to seek access to information about himself in agency records, and is entitled to cumulative total of access rights under the two Acts. 5 U.S.C.A. §~ 552, 552a.
11. Records 3I
    Privacy Act subsection providing general overall prohibition against collection and maintenance of information irrelevant to purposes of agency and subsection requiring maintenance of records do not apply to records not incorporated within agency's system of records. 5 U.S.C.A. § 552a(e)(l, 35, 7); U.S.C.A.Const.Amend. 1.

_____________________
Robert B. Clarkson, pro se.

Myles F. Eastwood, Asst. U. S. Atty., Atlanta, Ga., John F. Murray, Acting Asst.
Atty. Gen., Michael L. Paup, Richard W. Perkins, Gayle P. Miller, Robert A. Bern-
stein, Tax Div., Dept. of Justice, Washington D.C., for defendants-appellees.

                              Appeal from the United States District
                              Court for the Northern District of Georgia.


Before TUTTLE, TJOFLAT and CLARK,
Circuit Judges.


TUTTLE, Circuit Judge:

This appeal involves several consolidated cases arising under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1976) and the Privacy Act of 1974 (Privacy Act or Act), 5 U.S.C. § 552a (1976). In each of these cases the Court below granted summary judgment in favor of the Internal Revenue Service (IRS) and Director Henderson.  Seeking to obtain attorney fees and costs relating to the FOIA actions and to have the judgment relating to the Privacy Act suit reversed, Carkson filed this appeal pursuant to 28 U.S.C. § 1291 (1976). We affirm in part and reverse in part for the reasons which follow.

I. BACKGROUND
Appellant Clarkson has for several years been active in various (organizations formed to protest the federal government's system of taxation. In February of 1979, Clarkson served as the principal speaker at a meeting held in Atlanta, Georgia for the purpose of planning the 1979 Tax Protest Day demonstration. Two Internal Revenue Agents, apparently claiming to be insurance agents, attended this meeting. Upon learning the true identity of these agents, Clarkson initiated a series of letters to the IRS requesting copies of various documents pursuant to the FOIA and the Privacy Act.' 1.

(1. Clarkson's first letter, dated February 20, 1979, requested copies of all documents pertaining to me or an organization known as "We the People" or the Georgia Patriots, especially the materials pertaining to the surveillance [sic] operation conducted on 6 Feb 79 at the Holiday Inn in Atlanta.)

The IRS refused these requests on the ground that it maintained no files on any of the entities named in Clarkson's letters. Dissatisfied with the IRS's responses to his requests, Clarkson filed his first FOIA suit in propria persona against the IRS and Director Henderson on April 18, 1979. After further correspondence between the parties concerning Clarkson's FOIA requests, the IRS provided Clarkson with 109 pages of documents on August 1, 1979, and informed him that other documents were being withheld based on certain exemptions from disclosure under the FOIA.

On August 31, 1979, Clarkson filed a second FOIA suit in propria persona against the IRS and Director Henderson. Clarkson also filed a Vaughn Rosen motion to compel the IRS to provide him with a detailed justification for the withholding of all documents claimed to be exempt from disclosure under the FOIA.

By order of December 28, 1979, the district court consolidated these two suits, granted Clarkson's Vaughn Rosen motion, and directed the IRS to respond to Clarkson's FOIA request within thirty days. Clarkson contends that it was primarily because of this order that he received a second group of documents from the Department of Justice on January 18, 1980. The district court then reviewed in camera the documents for which the IRS claimed specific exemptions.

By order of June 27, 1980, the district court granted the IRS's motion for summary judgment on the basis that the exemptions claimed as to this third set of documents were proper. The costs of the actions were taxed against Clarkson.

Meanwhile, on March 31, 1980, after exhausting his administrative remedies,

Clarkson filed a Privacy Act suit against the IRS and Henderson. In this suit Clarkson sought declaratory, injunctive and monetary relief against the defendants for alleged violations of subsections (e)(1), (5) and (7) of the Privacy Act. 5 USC. § 552a(e)(1), (5) and (7) (1976).

By order dated July 31, 1980, the district court granted summary judgment in favor of the defendants on the ground that the Privacy Act is not applicable to documents which are not contained in the agency's system of records as that phrase is defined by the Act.

I. Clarkson also filed a series of motions in these cases. On July 24, 1980, he filed it motion for attorney fees in the two FOIA actions. On July 30, 1980, Clarkson filed a motion for a new trial in the FOIA suit. On August 11,1980, Clarkson filed a motion to consolidate all three cases, a motion for a new trial in the Privacy Act suit, and a cross-motion for summary judgment in the Privacy Act suit. On August 12, 1980, Clarkson filed a motion in opposition to defendants bill of costs in the FOIA suits. The court treated the new trial motions and the cross-motion for summary judgment as motions for reconsideration. •2

(2. We find no error in the district court's decision to treat these motions as motions for reconsideration Since one of these motions was served within the time period prescribed by Rule 59 by the Federal Rules of Civil Procedure, we find that appellate jurisdiction was properly invoked in this ease See Fed.Rules AppProc. 4(a)(4).)

On October 17, 1980), the court entered an order consolidating the three cases and denying Clarkson's other motions.

II. ATTORNEY FEES AND COSTS
[2] Awards of attorney fees and costs against the United States are allowable only to the extent that the government has waived its right of sovereign immunity.

E.g., Alaska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267 68 n.42, 95 S.Ct. 1612, 1626-4627 n.42, 44 L.Ed.2d 141 (1974); Barrett v. Bureau of Customs, 651 F.2d 1087 (5th Cir. 1981). The Freedom of Information Act contains a specific limited waiver of sovereign immunity by providing:

The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. 5 U.S.C. § 552(a)(4)(E) (1976). Thus, in the context of FOIA litigation, an award of attorney fees and costs is proper only where the party seeking the award has "substantially prevailed" in the litigation and where the court, in its discretion, determines that such an award is justified in a particular case. E.g., Cazalas v. United States Department of Justice, 660 F.2d 612 (5th Cir. 1981); Lovell v. Alderete, 630 F.2d 428 (5th Cir. 1980); Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978).

[3] Moreover, with respect to attorney fees, the Fifth Circuit Court of Appeals recently interpreted a similar provision of the Privacy Act to authorize such an award only to the extent that the "services of an attorney were utilized and fees incurred." Barrett v. Bureau of Customs, 65) F .2d 1087, 1089 (5th Cir. 1981). Thus, in Barrett, the Court held that pro se litigants who are not attorneys are not entitled to an award of attorney fees even if the other requirements of the Privacy Act are satisfied. 3

(3. In construing this portion of the Privacy Act, the Court in Barrett concluded that the phrase "reasonably incurred" modifies the phrase "reasonable attorney fees and other litigation costs." 651 F.2d 1087, 1089 (5th Cir. 1981). The court also found that the purpose of the Act, to encourage potential litigants to consult with attorneys, would not be furthered by an award of attorney fees to a pro se litigant who was not an attorney, Id. We note that this rationale does not necessarily preclude an award of attorney fees either to legal services corporations, Sellers v. Wollman, 510 F2d 119, 123 (5th Cir. 1975) or to a pro se litigant who is an attorney. Cazalas v. United States Department of Justice, 660 F.2d 612, 623 n.13 (5th Cir. 1981). Although Clarkson maintains that he is a law school graduate, we find the Cazalas decision to be inapposite since Clarkson concedes he is not licensed to practice law in any state. See  Hannon v. Security National Bank, 537 F.2d 327 (9th Cir. 1976).)

Since we find the attorney lees provisions of these acts to be virtually identical, both in terms of statutory language and congressional intent, we must conclude that the holding in Barrett precludes an award of attorney fees under the FOIA to a pro se litigant who is not an attorney. We therefore hold that Clarkson is not entitled to an award of attorney fees for his pro se representation in the two FOIA suits.

[4] Unlike attorney fees, however, costs of litigation can be reasonably incurred even by a pro se litigant who is not an attorney. Thus, the rationale of the Barrett decision would not preclude a pro se litigant from recovering his costs of litigation if the other requirements of the statute are satisfied. See, e.g., Crooker v. United States department of Justice, 632 F,2d 916, 921 22 (1st Cir. 1980); White v. Arlen Realty & Development Corp., 614 F.2d 387, 389 n.4 (4th Cir. 1980). In deciding whether a party has substantially prevailed, a court should consider whether the "prosecution of the action could reasonably regarded as necessary to obtain the in formation" and whether "the action had a substantial causative effect on the delivery of the information. Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980) (quoting Vermont Low Income Advocacy Council, Inc. v. Usery, 546 F.2d 51)9, 514 (241 Cir. 1976). If a party is found to have substantially prevailed in the litigation, then the court must exercise its discretion in determining whether an award is justified. 4

(4. Based on the legislative history of the FOIA, courts have identified four criteria to be evaluated in reaching the discretionary determination of whether the award is justified:

A.The benefit to the public deriving from the case;
B. The commercial benefit to the complainant;
C. The nature of plaintiff's interest in the records sought;
D. The basis for the government's withholding of the requested documents.)

Cazalas v. United States Department of Justice, Supra; Blue v. Bureau of Prisons, supra.

[5] In the instant case, the district court found, without discussion, that Clarkson had not substantially prevailed in his FOIA suits. As is often the case in FOIA suits brought to enforce an administrative request for documents, the record in this case is somewhat confusing as to when and to what extent the government provided Clarkson with the documents requested in his various letters. Yet it is undisputed that Clarkson received two sets of documents from the government at some point after suit had been filed. 5

(5. The government asserts, however, that until it received Clarkson's letter of June 25. 1979, it lacked adequate notice of the documents requested. Recognizing that the mere delivery of information after a suit has been filed does not in itself establish that a party has substantially prevailed," Cox v. United States dept. of Justice, 601 F.2d 1 (D.C.Cir.1979), we find the government's explanation unpersuasive. We note that Clarkson's original letter dated February 20. 1979. provided the government with the specific date, location and sponsor of the meeting which was the subject of surveillance by its agents. Thus, we are unable to find that the IRS lacked information sufficient to enable it to respond to Clarkson's request in a timely manner.)

More importantly, this second set of documents was released only after the Court entered an order requiring the IRS to provide Clarkson with a detailed justification of why additional documents were exempt from disclosure.  Under these circumstances, we must conclude that the lawsuits "could reasonably be regarded as necessary" and that they had a "substantial causative effect on the delivering of information." Lovell v. Alderete, 630 F.2d 428, 432 (5th Cir. 1980) (quoting Vermont Low Income Advocacy Council, Inc., 546 F.2d 509, 514 (2d Cir. 1976)). Since the district court did not reach the issue of whether a discretionary award of costs was justified in this case, we remand this issue to it for further proceedings consistent with this opinion. Cazalas v. United States Department of Justice. 660 F.2d 612, 619 (5th Cir. 1981): Blue v. Bureau of Prisons, 570 F.2d 529 (5th Cir. 1978); Nationwide Building Maintenance, Inc. v. Sampson, 559 F.2d 704 (D.C.Cir.l977).

III. PRIVACY ACT CLAIMS

Appellant Clarkson raises several statutory challenges to the IRS's practice of collecting and maintaining various documents, including surveillance reports, newsletters and press releases, pertaining to him individually. Specifically he asserts that the collection of documents describing his exercise of First Amendment rights violates subsection (e)(7) of the Privacy Act which provides:

(e)7hellip;Each agency that maintains a system of records shall (7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity. 5 U.S.C. § 552a(e)(7) (1976). Moreover, he asserts that by maintaining these documents, the IRS has violated two other provisions 6 of the Privacy Act which require:

(e) Each agency that maintains a system of records shall (1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President;

(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness and completeness as is reasonably necessary to assure fairness to the individual in the determination

(6. Clarkson also alleges that the IRS has violated 5 U.S.C. § 552a(e)(6) disseminating these documents without making reasonable efforts to insure their accuracy. We will not consider this issue since it was raised for the first time in this appeal)

5 U.S.C. § 552a(e)(1) and (5) (1976). In interpreting the scope of these agency requirements, it is necessary to refer to the pertinent definitions contained in the Act.
The term "maintain" is defined to include the terms "maintain, collect, use, or disseminate." 5 U.S.C. § 552a(a)(3) (1976). The term "record" is defined as:

any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph; 5 U.S.C. § 552a(a)(4) (1976). The phrase "system of records" is defined as: a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual; 5 U.S.C. § 552a(a)(5) (1976).

In the instant case, there is no dispute that the IRS is an agency which maintains a system of records. Similarly there can be no dispute that at least some of the surveillance reports or other documents identified by Clarkson are "records" since the IRS has admitted that these documents contain individual references to Clarkson. According to the IRS, these records are not, however, retrievable by Clarkson's name or other identifying particular. Rather these records are maintained only in a separate file entitled the "Tax Protest Project" file. Because these records have not been incorporated in the agency's "system of records," the district court held that the requirements of subsection (e)(1), (5) and (7) were not applicable and that the IRS was not required to comply with Clarkson's requests for amendment or expungement.

Asserting that the district court's interpretation of the Act is erroneous, Clarkson urges this Court to adopt the rationale espoused by the Circuit Court of Appeals for the District of Columbia in Albright v. United States, 631 F.2d 915 (D.C.Cir.1980). The factual situation in Albright is in many respects similar to the instant case. In Albright an agency of the federal government video taped a meeting between social security analysts and their personnel director regarding the recent demotions of the analysts. The videotape was not, and was never intended to be, made a part of the agency's "system of records." Focusingon the plain meaning of the statutory language, the Albright court held that 5 U.S.C. § 552a(e)(7) prohibits an agency from even collecting records which describe how an individual exercises his First Amendment rights. The Albright court found this interpretation of the Act to be consistent with both the legislative history of the Act, 7 which reflects Congress' "special concern for the protection of First Amendment rights," id. at 919, and the guidelines promulgateol by the Office of Management and Budget (0MB).8 Id. at 919-20 n.5.

(7. This Senate Report makes special note of "the preferred status which the Committee intends managers of information technology to accord to information touching areas protected by the First Amendment to the Constitution" S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in [19741 U.S.Code Cong. & Admin.News 6916, 6971)

(8. See 40 Fed, Reg. 28949 (1975). The OMB's authority to promulgate guidelines to the Privacy Act is contained in § 6 of the Act, Pub.L. No. 93-579, 88 Stat. 1896 (1974).<

Conceding that the Albright court's literal interpretation (if the Act is "grammatically possible the IRS nevertheless contends that this interpretation is erroneous. It asserts that the district court's decision in this case ascribes the correct meaning to the requirements imposed on the agency by the Act. Thus, the IRS would have us interpret subsection (e)(7), for example, as requiring that an agency shall "maintain no record [which is incorporated into a system of records] descriliing how any individual exercises rights guaranteed by the First Amendment…Since most of the arguments presented by the IRS are directed toward subsection (e)(7), we find it appropriate to discuss this provision separately.

A. Subsection (e)(7)

The IRS raises numerous arguments in support of its assertion that the Albright interpretation of subsection (e)(7) is erroneous. Many of these arguments were discussed in detail by the court in Albright and we see no reason to repeat them here. In this case, however, the IRS presents two additional arguments which merit  individual consideration by this Court.

[6, 7] The IRS first asserts that if this Court adopts the rationale (If the Albright decision, every piece of paper collected by a government agency will subject it to a claim for a subsection (e)(7)  violation. We believe the IRS has seriously overstated its case for several reasons. In order for the prohibition of subsection (e)(7) to apply, the documents involved must constitute "records" which implicate an individuals First Amendment rights. As we have previously noted, at least some of the documents involved in this case clearly fall within the definition of records provided by the Act. 5 U.S.C. § .552a(a)(4)(1976). And, it can not be disputed that memoranda reflecting the contents of Clarkson's political speech would be subject to First Amendment protections. Even where records implicating an individuals First Amendment rights are involved, however, the prohibition against collection of such records is not absolute. Thus, Congress has provided that an agency may collect such records if expressly authorized by statute or by the individual about whom the record is maintained or {if the collection is) pertinent to and within the scope of an authorized law enforcement activity

5 USC. § 552a(e)(7) (1976). Indeed, while the first two exceptions are not applicable in this case, the IRS asserted during oral argument that the surveillance of tax protest meetings is an authorized law enforcement activity. The Privacy Act does not specifically define the term "authorized law enforcement activity." Some guidance is provided, however, by the legislative history and the 0MB Guidelines. The objective of the law enforcement exception to subsection (c)(7) was "to make certain that political and religious activities are not used as a cover for illegal or subversive activities." 120 Cong. Rec. H10,892 (daily ed. Nov. 20, 1974). By enacting this exception, however, Congress did not intend to dilute the guarantees of the First Amendment by authorizing the maintenance of files on "persons who are merely exercising their constitutional rights." 0MB Guidelines, 40 Fed. Reg. 28965 (1975) (quoting 120 Cong.Rec. H10892) (daily ed. Nov. 20, 1974) and H10,952 (daily ed. Nov. 21, 1974)). In determining the scope of the FBI's authorized law enforcement activities, one court has held:

Merely because [an agency] may act within its authority by monitoring the public or private speeches of a person in the course of a legitimate security investigation does not give it the right to maintain records relating to the contents of these speeches where the investigation does not focus on a past or anticipated specific criminal act. Jabara v. Kelly, 476 F.Supp. 561, 581 (ED. Mich. 1979) (emphasis in original). 10

Support for this proposition can be found in the Senate Report which states that the restraint imposed upon an agency by subsection (e)(7) is aimed at "preventing collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future." S.Rep.No. 1183, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Admin.News 6916, 6971.

Although the scope of authorized activities must necessarily vary depending upon the particular agency involved, we find the balance struck by the court in Jabara to be appropriate in this case. Thus, we hold that to the extent that the IRS has engagedin the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce, subsection (e)(7) of the Act has been violated. Since the record in this case does not reveal either the purpose of the surveillance activities or the extent to which records of political speeches are maintained by the IRS, we must remand this issue to the district court for further proceedings Consistent with this opinion.

[8] The IRS next asserts that even if subsection (e)(7) applies to records not contained within a system of records, Clarkson would be unable to obtain any effective relief under the Act. Although subsections (d)(2) and (d)(3) of the Act require the IRS to amend or expunge its records under certain circumstances, the IRS asserts that the applicability of these subsections is limited to records contained within a system of records" See Grachow v. United States Custom Service, 504 F.Supp. 632 (D.D.C. 1980); Lynch v. IRS, Civ.No. 77-4219 (D.D.C., May 10, 1978).

Thus, according to the IRS, since the Act does not authorize the amendment or, expungement of offending documents which are not contained within an agency's system of records, the Albright interpretation of subsection (e)(7) does not fit within the comprehensive statutory scheme enacted by Congress.

[9, 1O] We find unpersuasive the government's argument that the Act provides no effective relief for a violation of subsection (e) (7) as interpreted by the Court in Albright v. United States, Supra. Section (d) of the Act provides in pertinentpart:

(d) Access to records—Each agency that maintains a system of records shall—

(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him,…,

(2) permit the individual to request amendment of a record pertaining to
him and…

(B) promptly, either—

(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or Complete; or

(ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;

(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and notify the individual of the provisions for judicial review of the reviewing official's determination under subsection (g)(1)(A) of this section;…

9. Criticizing the breadth of this exception one commentator has noted that it "opens a loop-hole that threatens to swallow the rule" and "may well perpetrate those fishing expeditions that subsection (e)(7) is designed to preclude" Guidebook to the Freedom of Information and Privacy Acts 46, 71 75 n70 (R. Botchard & J. Franklin ed. 1980).

10. Subsection (e)(7) of the Act has rarely been construed by the courts. A similar reference to "law enforcement activities" is, however, contained in subsection (b)(7) of the FOIA. See 5 USC. § 552(b)(7) Examples of properly authorized law enforcement activities in an analogous context may thus be found from a review (if FO]A cases involving subsection (b)(7) exemptions from disclosure. See. eg, NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978) (witness statements relating to NLRB investigation); Moore field v. United States Secret Service, Gil F.2d 1021 (5th Cir. 1980) (background records relating to surveillance of specific person twice
convicted for threatening the life of the President); Williams v. IRS, 479 F.2d 317 (3d Cir. 1978) (data compiled in connection with an audit of an individual's income tax liability).

11. The Privacy Act expressly provides for injunctive relief for only two types of agency misconduct, that is, wrongful withholding of documents under subsection (d)(l) and wrongful refusal to amend an individual's record under subsection (d)(3). See 5 U.S.C. § 552a(g)(2) & (3). The remedy for violations of all other provisions of the Act is limited to recovery of damages upon a showing that the agency acted in an intentional or willful manner. See 5 U.S.C. § 552a(g)(4) (1976); Edison v. Department of the Army, 672 F.2d 840 (11th Cir. 1982); Parks v. IRS, 618 F2d 677 (10th Cir. 1980); Cell Associates, Inc. v. National Institute, 579 F.2d 1155 (9th Cir. 1978).

Section (g) of the Act also contains a detailed provision for establishing jurisdiction. The jurisdictional requirements vary depending on which provision of the Act has been violated. Since Clarkson may fall within at least one of these provisions by establishing a violation of subsection (e)(7) alone, we find it more appropriate to discuss the question of the scope of paragraphs (d)(2) and (d)(3) in terms of anavailable remedy rather than as a separate basis for jurisdiction. We do not intend to restrict the district court's ability to reexamine the question of jurisdiction on remand after the appropriate jurisdictional facts have been developed.

5 U.S.C. § 552a(d)(1) (3) (1976). The language of paragraph (d)(1) expressly limits its applicability to records contained within a system of records. See Hanley v. United States Department of  Justice, 623 F.2d 1138 (6th Cir. 1980); Smiertka v. United States Department of the "Treasury,". 447 F.Supp. 221 (D.D.C.1978). remanded on other grounds, 604 F.2d 698 (D.C.Ci r. 1979). paragraphs (d)(2) and (d)(3), however, contain no such restrictions. Moreover, neither of these paragraphs refers back to the restrictive language concerning records in paragraph (d)( 1). Rather, paragraph (d)(2) refers only to "a record.

The IRS asserts that the application of paragraphs (d)(2) and (d)(3) must be implicitly limited by the language in paragraph (d)(1) because the former paragraphs apply only to records obtained under paragraph (d)( 1). This argument, however, ignores not only the plain language of the statute, but also the reality that the Privacy Act is not the exclusive means for obtaining access to records maintained by an agency.

Without tidying into the complex interrelationship between the FOIA and the Privacy Act, we note that the FOIA is, of course, in no way limited to records contained within a system of records. See 5 U.S.C. § 552 (1976). As one commentator has explained: "An individual may utilize the Privacy Act or the FOIA or both to seek access to information about hinself in agency records and is entitled to the cumulative total of access rights under the two Acts."

12. Guidebook to the Freedom of Information and Privacy Acts 21-22 (R. Bouchard & J.Franklin ed. 1980). Thus, we find it both necessary anti appropriate to construe the plain meaning of the language of subsections (d)(2) and (d)(3) to authorize the amendment or expungement of all records which are maintained in violation of subsection (e)(7). Moreover, we believe that this construction is consistent with Congress purpose in enacting provisions to safeguard First Amendment rights. Just as Congress must have been aware of the special treatment accorded First Amendment rights by the judiciary, it must also be credited with an awareness of the typical remedies afforded to vindicate violations of those rights. Prior to the enactment of the Privacy Act, courts have often recognized actions arising under the Constitution for expungement of agency records collected and maintained in violation of the First Amendment. 13 See, e.g., Paton v. La Prade, 524 F.2d 862 (3d Cir. 1975) (FBI surveillance and interception of lawful correspondence with the Socialist Workers Party); Chastin v. Kelly. 510 F.2d 1232 (D.C.Cir.1973) (retention of documents relating to proposed dismissal of FBI agent after charges had been withdrawn). Thus, we hold that, at least with respect to violations of subsection (e)( 7), a plaintiff may be entitled to have the offending records amended or expunged even if the records are not maintained within the agency's system of records. B. Subsections (e)(1) and (e)(5).

12. Indeed, the correctness of this explanation is amply illustrated by the ability of the plaintiffs in Albright to obtain a copy of the videotape. see 631 F.2d 915, 917 n.3, and the ability of Clarkson to receive a substantial number of documents maintained in the "Tax Protest Project" file.

13. In making this comparison, we of course do not intend to suggest that the enactment of the Privacy Act in any way precludes a plaintiff from asserting a constitutional claim for violation of his privacy or First Amendment rights. Indeed, several courts have recognized that a plaintiff is free to assert both Privacy Act and constitutional claims See, e.g., Metadure Corp. v. United States, 490 F.Supp. 1368 (S.D. N.Y. 1980): Jabara  v. Kelly, 476 FSupp. 561 (E.D.Mich. 1979).

(II) The language of subsections (e)(1) and (e)(5) compels a different analysis. Unlike subsection (e)(7), these subsections do not address the protections afforded to individuals by the First Amendment. Indeed, subsection (e)(1) merely provides a general overall prohibition against the collection and maintenance of information which is irrelevant to the purposes of an agency. By definition the language of this subsection imposes a much less rigorous standard upon the agency than that required by subsection (e)(7). See OMB Guidelines, 40 Fed. Reg. at 28965 (1975). In light of the limited function of subsection (e)(1), we decline to extend the Albright rationale to this provision of the Act.

Similarly, the language of subsection (e)(5) cannot be read to apply to records not incorporated within an agency's system of records. The objective of this provision is to require an agency to take reasonable steps to insure the informational quality of the records which it relies upon in making determinations about an individual. See, e.g., Edison v. Department of the Army, 672 F.2d 840 (11th Cir. 1982); Savarese v. United States Department of Health, Education and Welfare, 479 F.Supp. 304 (N.D.Ga.1979), aff'd w/o opinion, 620 F.2d 298 (5th Cir. 1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981); Zeller v. United States, 467 F.Supp. 487 (E.D.N.Y. 1979); OMB Guidelines, 40 Fed.Reg. at 28964.

Thus, unlike subsection (e)(7), the requirements of subsection (e)(5) are specifiecally directed toward the agency's use of the records in making "decisions affecting the rights, benefits, entitlements, or opportunities (including employment) of the individual." 14 OMB Guidelines, 40 Fed.Reg. at 28964. Indeed this Court has held that subsection (c)(5) requires a plaintiff to prove a causal relationship between the allegedly erroneous record and an adverse determination based on that record. See, Department of The Army supra at 845. The record in the instant case in no way indicates that the IRS has made or intends to make any 'determinations
about Clarkson based on these records.' 15

Thus, we find it unnecessary to extend the rationale of the Albright decision to subsection (e)(5) of the Act.

Accordingly, we affirm the district courts decision insofar as it holds that Clarkson is not entitled to an award of attorney fees under the FOIA and that subsections (e)(l) and (e)(5) of the Privacy Act are not applicable to the instant case.

With respect to issue of costs under the FOIA and the alleged violation of (c)(7) of the Privacy Act, we REVERSE and REMAND to the district court for further proceedings consistent with the views expressed in this opinion.

14. The Senate Report confirms this difference in the scope of protections afforded by the various provisions of section (e) by noting that only certain subsections, including subsection (e)(7), reflect 'another dimension of the privacy issue [which prevails] whether or not the information is intended to be used to make decisions about specific individuals. S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in (1974] U.S.Code Cong. & Admin.News 6916, 6960.

15. Indeed, it is apparent that if the IRS had intended to rely on these records to make individual determinations, the Act would require these records to be indexed by the name or other identifying particular of the individuals involved. As the 0MB Guidelines make clean Systems, however, should not be subdivided or reorganized so that information which would otherwise have been subject to the act is no longer subject to the act~ For example, if an agency maintains a series of records not arranged by name or personal identifier but uses a separate index file to retrieve records by name or personal identifier it should riot treat these files as separate systems. 40 Fed.Reg. at 28963 (1975).

TJOFLAT, Circuit Judge, specially concurring:

I agree that the Privacy Act claims in this case should be remanded to the district
court for further consideration; 1 write separately to emphasize my understanding of the court's decision. In addressing the breadth of the exception in subsection (e)(7) of the Privacy Act 2 for records "pertinent to and within the scope of an authorized law enforcement activity," the court holds that to the extent that the IRS has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce, subsection (e)(7) of the Act has been violated Ante, p. 1375.

I agree; subsection (e)(7)'s prohibition against collecting records that describe how an individual exercises his first amendment rights should not be circumvented by fishing expeditions disguised as "law enforcement activity." I wish to emphasize, however, that the District court must have broad discretion in determining whether an agency's record collection is part of a law enforcement activity; in actually reviewing the records and the circumstances surrounding their collection, the district court is in the best position to determine the applicability of the (e)(7) law enforcement exception. Thus, while the nation of the applicability of the exception is a in question of law and fact, its factual character predominates and our review of a district court's finding on this issue should so recognize.

The inquiry into the law enforcement exception's relevance in a given case must, of course, depend on the facts and circumstances. In the case before us, the defendant is a tax protester. Tax protesters often set out to violate the law, see, e.g., United States v. Douglass, 476 F.2d 260 (5th Cir. 1973), and the IRS may therefore be entitled to greater leeway in maintaining records on their activities. In my view, Clarkson's status as a tax protester is a factor

1. I do not address the issue of costs in the FOIA case or the applicability of subsections (e)(1) and (e)(5) of the Privacy Act.

2. 5 U.S.C. &ect; 552a(e)(7) (1976) provides: (e)…Each agency that maintains a system of records shall—the district court may consider in determining the exception's applicability. As the court notes, the law enforcement exception
was designed "to make certain that political and religious activities are not used as a cover for illegal or subversive activities," ante, p. 1374, citing 120 Cong.Rec. H10,892 (daily ed. Nov. 20, 1974). This concern seems especially relevant when the record collection involves tax protesters.

I also add a comment to the court's holding that a plaintiff who proves a subsection (e)(7) violation "may be entitled to have the offending records amended or expunged even if the records are not maintained within the agencies system of records. Ante, pp 1376 1377. On the facts of this case, where the IRS has admitted the existence of (e)(7) material outside of its records system, I agree that Clarkson may be entitled to relief if the law enforcement exception is found not to apply. I express no view, however, as to whether a plaintiff's bare allegation that an agency is maintaining records in violation of subsection (e)(7) is sufficient to require the agency to search its system of records for potentially offensive material.

For each Privacy Act request, a staff would have to screen the countless, potentially millions of pages of documents, regardless of how labeled, indexed, or stored, in order to discover materials pertaining to the requester. Such a ruling would be contrary to the purpose of the statute and to the public policy.<

Thus, while on the facts of this case Clarkson may be entitled to relief, this does not necessarily mean that every Plaintiff who alleges agency maintenance of first amendment material will be entitled to a judicially enforced scavenger hunt through that agency's records.

(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within tile scope of an authorized law enforcement activity.

CLARK, Circuit Judge, specially concurring.

I enthusiastically concur in Judge Tuttle's opinion which admirably and painstakingly analyzes a citizen's First Amendment protection of his freedom of speech rights as amplified by the Privacy Act. However, once again I take issue with the holding that a pro se litigant who substantially prevails cannot recover attorney fees, as I did in Lovell v. Alderete, 630 F.2d 428, 431 (5th Cir. 1980). I recognize that preeminent binds us as a panel and therefore under the law the instant opinion is correct.

Nevertheless, I continue to speak out against an interpretation of the statute that permits reimbursement for money spent for attorney fees but denies it for time spent to accomplish the same result. Time is precious to everyone. "Taking time away from gainful employment or enjoyable leisure to enforce one's rights is a valuable consideration for which reimbursement should be obtainable, and is just as much "a stock in trade" as is an attorneys tinte. There is nothing in the Act or Congressional history to suggest that Congress intended to favor a person with money who could afford an attorney over a poorer person who could not, and who could not enlist free legal services.

Therefore, I register my disagreement with this holding, while recognizing that we as a panel are bound by Lovell.

       STATE of Georgia

               V.
                                                              }
        HIGGINS.
                                                                                           No. 11782.

Supreme Court of Georgia.

March 5, 1985.

Defendant demurred to accusations of failure to paying state income taxes and failure to timely file a state income tax return. The Fulton State Court, Charles Carnes, J., sustained demurrers, and the State appealed. The Supreme Court, Marshall, PJ., held that:

(1) statute making failure to pay any tax a misdemeanor offense violates constitutional provision prohibiting imprisonment for debts, and

(2) trial court did not err in sustaining demurrer to charge of failure to make timely return.

Affirmed.

Weltner, J., filed a concurring opinion.

1. Constitutional Law 83(3) Taxation 952
Income tax is a "debt"; therefore, statute making failure to pay any tax a misdemeanor offense violates constitutional provision prohibiting imprisonment for debts to the extent that statute authorizes imprisonment for mere nonpayment of income taxes. O.C.G.A. §~ 48-7-2, 48-7-2(a(l). See publication Words and Phrases For other judicial constructions and definitions.

2. Constitutional Law 82(6) Taxation 952, 1103
There is no constitutional inhibition against criminalizing failure to make in- come return and trial court should not have sustained demurrer to that accusation on constitutional grounds; however, accusation charged defendant with failure to make "timely return," and since statute made it unlawful merely to fail to make return, trial court did not err in sustaining demurrer on the basis of that variance. O.C.G.A. § 48-722.

Donald C. English. Asst. Sol. Gen., Atlanta. for State of Ga.

Michael J. Bowers, Atty. Gen., Jeffrey L.
Listeen, amicus cunae.
Denmark Groover, Macon, for Robert F. Higgins.

MARSHALL, Presiding Justice.

Two criminal accusations were returned against the appellee. One was for failure to pay state income taxes, and the other was for failure to timely file a state income tax return. The offenses were alleged in the accusations to have occurred in separate years from 1978 through 1983. Under OCGA § 48-7-2, the failure to pay any tax and the failure to make any return are made misdemeanor offenses. The appellee demurred to the accusations on various grounds, one of which being that the foregoing statute violates the provision of our state Constitution prohibiting imprisonment for debt. Art. I. Sec. I, Par. XXIII of the Georgia Constitution of 1983. The state court sustained the demurrers. The state appeals.

1. The Georgia Constitution's prohibition against imprisonment for debt has undergone gradual modification throughout our state's history.

This constitutional provision first appeared in the Georgia Constitution of 1798 as Art IV, Sec. VII. It provided as follows: "The person of a debtor, where there is not a strong presumption of fraud, shall not be detained in prison after delivering up, bona fide, all his estate, real and personal, for the use of his creditors, in such manner as shall be hereinafter regulated by law." See McElreath, Constitution of Georgia, § 408, p. 265. This provision was modified in the Georgia Constitution of 1861, Art. I, Sec. XXVI, to provide the following: "The person of a debtor shall not be detained in prison after delivering bona fide all his estate for the use of his creditors." McElreath, supra, at § 465, p. 283.

Four years later in the Georgia Constitution of 1865, Art. I, Sec. XIX, this constitutional provision was again changed to provide: "The person of a debtor shall not be detained in prison, after delivery, for the benefit of his creditors, of all his estate not expressly exempted by law from levy and sale." Id. at 567, p. 300. Three years after that, in the Georgia Constitution of 1868, Art. I, Sec. XVIII, this provision was once again changed to succinctly provide: "There shall be no imprisonment for debt." This language from the Georgia Constitution of 1868 has been carried forward in identical form in the Georgia Constitutions of 1877, 1945, 1976, and 1983.

As stated in Messenger v. State, 209 Ga. 340, 341, 72 S.E.2d 460 (1952), "The inhibition of the Constitution applies to any and all imprisonment for debt, irrespective of the period of its duration or the means whereby it is accomplished."

2. Most state constitutions contain provisions which, in one form or another, prohibit imprisonment for debt. 48 A.L.R.3d1324, Anno., Constitutional Provision Against Imprisonment for Debt as Applicable to Nonpayment of Tax. The parties dispute the interpretation of the cases contained in this ALR Annotation. The interpretation of these cases is summarized in 2 of the Annotation at pp. 1326-4327; and this summary, which we cite immediately below, sustains the interpretation advocated by the appellee:

Upon the theory that constitutional guaranties against imprisonment for debt have as their purpose the prevention of the useless and often cruel imprisonment of persons who, having honestly become indebted to another. are unable to pay as they undertook and promised, the courts in some cases have apparently taken the general view that unpaid taxes are not ordinarily debts' within the contemplation of the constitutional provision. A broader rationale has been relied upon in some cases in which it was said that debt under the provision refers only to contractual obligations. and where the prohibition expressly omits debts to those founded upon. or arising out of contract,  it has been held that taxes clearly are not included. And upon the view that the penalty of imprisonment for nonpayment of taxes or license fees upon occupations, privileges, and similar activities is imposed, not for refusal or inability to pay the tax but for violation of a duty imposed upon the taxpayer by the law, the courts in many cases have held that statutes, ordinances, and other regulations imposing such taxes or license fees may lawfully authorize the imprisonment of those who fail to pay. A distinction, however, has been drawn between those cases involving taxes on occupation or excise taxes and those dealing with income taxes, and it has been held that "debt" as used in the constitutional prohibition includes income taxes and other taxes not imposed for the pursuit of an occupation or the exercise of a privilege.

While the constitutional prohibition may sometimes be regarded as including taxes within the term "debt," some provisions allowing imprisonment in case of fraud have been interpreted to exempt from their general prohibition willful refusal to pay occupation and other taxes.

In summary, it must be emphasized that under all the various particular constitutional provisions applicable in certain circumstances stated, it has been held in the overwhelming majority of cases that imprisonment for nonpayment of taxes, or at least for the exercise of the occupation or privilege conditioned upon their payment, or for the nonpayment of penalties associated with the initial failure to pay, does not come within the prohibition of the constitutional provision against imprisonment for debt. The outstanding exception has been imprisonment for mere nonpayment of income taxes. (Emphasis supplied: footnotes omitted.)

3. OCGA § 48-7-2 provides, in full: '(a) It shall be unlawful for any person who is required under this chapter to pay any tax, make any return, keep any records, supply any information, or exhibit any books or records for the purpose of computation, assessment, or collection of any tax imposed by this chapter to fail to:

(1) Pay the tax;

(2) Make the return;

(3) Keep the records; or

(4) When requested to do so by the commissioner:

(A) Supply the information; or

(B) Exhibit the books or records.

(b) In addition to other penalties provided by law, any person who violates subsection (a) of this Code section shall be guilty of a misdemeanor." (Code 1933, § 92-3217, enacted by Ga.L.1937. p. 109, § 17; Code 1933, § 91A-9930, enacted by Ga.L.1978, p. 309, § 2.)

[1] 4. We hold that an income tax is a debt-albeit a public debt, as opposed to a private, contractual debt. It is, however, a debt nonetheless. Therefore, we agree that § 48-7-2(a){1) is unconstitutional on state law grounds to the extent that it authorizes imprisonment for mere nonpayment of income taxes. The state court did not err in sustaining the demurrer to the accusation for nonpayment of state income taxes on this ground.

[2] 5. However, we perceive no constitutional inhibition against criminalizing the failure to make an income tax return. Consequently, the trial court should not have sustained the demurrer to that accusation on constitutional grounds. But, that accusation charges the appellee with failure to make a "timely return," whereas the statute makes it unlawful merely to fail to make a return. We cannot say that the trial court erred in sustaining the demurrer because of that variance.

Judgment affirmed

All the Justices concur.

WELTNER, Justice, concurring.

I write only to suggest that, in my opinion, this case (and particularly Division 4) should not be considered as a proscription of all possible criminal sanctions for failure to pay taxes.

The provisions of OCGA § 48-7-2(a)(1) make criminal the failure to pay income taxes-for any reason. Thus, included within its gamut is the citizen trapped within the toils of honest poverty, who, even through the exertion of the greatest of effort and good faith is unable to pay the tax.

A criminal provision drawn in terms or a "willful failure" to pay tax would he an entirely different matter, as it would catch the intentional tax evader without at the same time ensnaring the hapless pauper.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION

Jane Doe Henderson and                           )
John Doe  Henderson,                               )
                                                                 )
          Plaintiffs,                                        )                CA NO. 91-805-20K
                                                                  )
                                 vs.                             )                           ORDER
                                                                  )
The United States and                                 )                          
The Palmetto Bank, Heritage                       )
Federal Savings and Loan                           )
Association, Citizens and                             )
Southern National Bank of South             
Carolina, Interstate Johnson Lane               
Corporation, and NCNB National             
Bank of South Carolina,                            
     
           Defendants.              
                                                                  

This matter is before the court on a petition to quash certain Internal Revenue summonses.

The internal Revenue Service ( IRS ) issued five (5) summonses between March 15, 1991 and June 7, 1991, in the course of an investigation of James M. Henderson and Mary Henderson (collectively the "Henderson's ). The IRS was attempting to determine the correct federal income tax liability of the Henderson's for the years of 1985, 1986, 1987, 1988 and1989, and to inquire into any offense connected with the administration or enforcement of the internal revenue laws. The summonses were directed to and served upon various financial institutions.' The Henderson were given proper notice of each of the summonses.

The Henderson's filed a petition' to quash the summonses. In this petition, the Henderson's assert that the summonses were not properly attested that they were true copies of the original when they were served. The United States has filed a motion to dismiss the petition to quash and a petition to enforce the summonses.

The court must first determine whether it has jurisdiction to decide the petition to quash or the petition to enforce the summonses. The IRS contends that this court lacks jurisdiction to decide the petition to quash as it relates to the summonses directed to Interstate Johnson Lane Corp. and C&S Bank. In general, the United States, and therefore the IRS, is immune to Suit except where the Congress has expressly waived immunity by statute. See United States v. Sherwood, 312 U.S. 584 (1941). In the Internal Revenue Code, Congress has waived sovereign immunity in certain instances. "The United States district court shall have jurisdiction to hear and determine any proceeding [properly brought to quash an IRS summons]…" 26 U.S.C. § 7609(h)(l). A person has the right to begin a proceeding

It is not disputed that the IRS has the authority to issue summonses for these purposes.

See 26 U.S.C. § 7602(a) & (b).
The summonses were to (1) Palmetto Bank, served March 15, 1991; (2) Heritage Federal S & L, served March 15, 1991; (3) C&S Bank, served March 21, 1991; (4) Interstate Johnson Lane Corp., served May 17, 1991; and (5) NCNB Bank, served June 7, 1991.

The petition to quash was originally filed on March 22, 1991 seeking to quash the summonses directed to Heritage Federal S & L and Palmetto Bank. An amended petition was filed on April 18, 1991 seeking in addition to quash the summons to C & S Bank. A second amended petition was filed on June 7, 1991 seeking in addition to quash the summons to Interstate Johnson Lane. A third amended petition was filed on June 25, 1991 seeking additionally to quash the summons to NCNB Bank.

to quash a summons not later than the 20th day after the day he is given notice of the summons in the manner required by the law. 26 U.S.C. § 7609(b)(2). Therefore, if a proceeding to quash is not begun within the twenty day period, the district court is without jurisdiction to quash the summons. In this case, the Henderson's were given notice sufficient under the law of the summons to c&s Bank on March 22, 1991. A proceeding must have been begun by April 11, 1991. The Henderson's did not amend the petition to quash to include this summons until April 18, 1991. The Henderson's were given notice sufficient under the law of the summons to Interstate Johnson Lane Corp. on May 17, 1991. A proceeding must have been begun by June 6, 1991. The Henderson's did not amend the petition to quash to include this summons until June 7, 1991. Therefore, the Henderson's did not meet the jurisdictional deadline to begin proceedings to quash these two summonses, and this court lacks jurisdiction to decide the petition to quash as it relates to the summonses to Interstates Johnson Lane Corp. and C&S Bank.'

The summonses were issued by agent Suzanne Bell. Agent Bell, in her affidavit, stated that the books, records, papers, and other data sought are either not in the possession of the IRS or are not readily accessible without undue administrative burden and expense. She further stated that the information sought is necessary and relevant to the investigation and that no referral to the Department of Justice for criminal proceedings has been made. Bell also stated that all administrative procedures had been followed.

This court does, however, have jurisdiction to decide the petition to enforce as it relates to all of the summonses. 26 U.S.C. § 7604(a). Jurisdiction to determine questions of enforcement is granted independently from jurisdiction to determine a petition to quash. S~ 26 U.S.C. § 7604(a) and 7609(h)(l)

To enforce the summonses, the United States need only show that the summonses were issued for a legitimate purpose, that the data sought may be relevant to that legitimate purpose, that the data is not already in the government's possession, and that the administrative steps required by the Internal Revenue Code were followed. United Stales v. Powell, 379 U.S. 48 (1964); United States v. LaSalle National Bank, 437 U.S. 298, 313-14 (1978); Alphin vs. United States 809 F 2d 236 (4th Cir. 1987). The IRS may establish its prima facie case by an affidavit of the investigating agent averring the four elements from Powell. Alphin v. United States, 809 F.2d 236 (4th Cir. 1987); In re Newton, 718 F.2d 1015, 1019 (11th Cir. 1983); United States v. Davis, 636 F.2d 1028 (5th Cir. 1981). The affidavit of agent Bell establishes a prima facie case for enforcement. Since a prima facie case is established, the burden shifts to the Henderson's to show that the summonses should not be enforced.

The Henderson's assert that all of the administrative steps required by the Internal Revenue Code were not followed. The I-Henderson's contend that the IRS did not serve "attested' copies of the original summonses. A summons issued by the IRS "shall be served by the Secretary, by an attested copy delivered in hand to the person to whom it is directed, or left at his last and usual place of abode…7 26 U.S.C. § 7603. Mimick v. United States, 91-1 USTC p. 50,070 (D.Neb. 1991)' appears to be the only reported case that has interpreted what is an "attested copy for purposes of 26 U.S.C. § 7603. As the district court in Nebraska did, this court looks to Black's Law Dictionary to define the term "attested

5 This case is not reported in the Federal Supplement. It also may be located at 1991 WL 34445 and 1991 U.S. Dist. Lexis 1329.

copy. "[A]n attested' copy of a document is one which has been examined and compared with the original, with a certification or memorandum of its correctness, signed by the person who examined it. Black's Law Dictionary 117 (5th ed. 1979). Therefore, an attested copy must have a written and signed certification that it is a correct copy.

The copies of the summonses that are part of the record in this case have no written and signed certification that they are true copies of the original on them or attached to them. The IRS does not contest the fact that the summonses that were served did not have such a written and signed certification The IRS contends that the statute does not require such a certification. This court disagrees. This court finds that to be an attested copy, the summons must have a written and signed certification or memorandum that the copy is a true and correct copy of the original. Therefore, the IRS failed to follow the administrative steps required by the Internal Revenue Cede.

The Henderson's have shown that the IRS failed to establish an element required under Powell for the enforcement of a summons. The district court can deny enforcement of a summons if it finds that the IRS has fallen short of establishing the four elements from Powell. United States v. Michaud, 907 F.2d 750, 752 (7th Cir. l990)(en banc); Cf. Hintze  v. Internal Revenue Service, 879 F.2d 121 (4th Cir. 1989); United States v. White, 853 F.2d 107 (2d Cir. 1988); United States v. John G. Mutschler & Assoc.. Inc., 734 F.2d 363, 367 (8th Cir. 1984).

The IRS contends that any failure to comply with the administrative procedures was a minor flaw which should not preclude enforcement of the summonses.' This court does not agree. Congress specifically provided that a summons issued by the IRS "shall be served by the Secretary, by an attested copy…" 26 U.S.C. ~7603 (emphasis added). The word shall in a statute is generally used to show that a certain action is mandatory.' Therefore, the service of an attested copy in mandated by the Internal Revenue Code.

It seems clear that a valid purpose for this mandate is to assure the person receiving the summons that what he received was in fact a true copy of the original summons. The failure to serve an "attested copy deprives the person receiving the summons of this assurance which Congress expressly granted. This court finds that under the facts of this case, the failure to follow the requirement of the Internal Revenue Code to serve an attested copy precludes the enforcement of the summonses.

This court finds that it lacks subject matter jurisdiction to decide the petition to quash as it relates to the summonses to Interstate Johnson Lane Corp. and C&S Bank. The petition must be dismissed in such parts as relate to these two summonses. This court further finds

The IRS cites three cases for the proposition that a minor flaw will not preclude enforcement: United States v. Bank of Moulton, 614 F.2d 1063 (5th Cir. 1980)(IRS's obtaining information prematurely did not preclude enforcement because the violation was minor, and there was no harm caused by the conduct); United States v. Texas Heart Institute, 755 F.2d 469 (5th Cir. 1985)(Even though notice requirement was not met, summons was enforceable because the taxpayer had actual notice and received every benefit of the administrative procedure), overruled on other .grounds by United States v. Barrett, 837 F.2d 1341 (5th Cir. 1988); and United States v. Gilbert C. Swanson Foundation. Inc., 772 F.2d

440 (8th Cir. 1985)(Failure to adhere to IRS internal operating order did not preclude enforcement of a summons).

Black's Law Dictionary 1233 (5th ed. 1979); and 39 Words and Phrases, "Shall-In Statutes 122-30 (1953).

That the remaining three summons should be quashed becasue the IRS failed to serve an attested copy of the summonses. For this same reason, the court finds that the IRS is not entitled to enforcement of any summones.

Based on the forgoing, it is

ORDERED that the motion of the IRS to dismiss the petition is granted in part and denied in part. It is further

ORDERED that the petition to quash the summonses is dismissed in part and granted in part. It is further

ORDERED that the petition for enforcement is denied.

IT IS SO ORDERED.

________________________
Henry M. Herlong, Jr.
United States District Judge

Greenville, South Carolina
November 27, 1991
__________________________