NORTHERN DISTRICT OF GEORGIA
Harry Freeman ) CIVIL # __________________
Plaintiff )
V. ) OPPOSITION TO MOTION
) FOR ENFORCEMENT
) OF SUMMONSES
United States, et al. ) (7609)
Respondents )
Petitioner Harry Freeman hereby files this Opposition to the
1. The United States Supreme Court ruled in United States v. LaSalle National Bank, 437 U.S. 298 (1978), “… the summons must be issued before the Service recommends to the Department of Justice that a criminal prosecution, which reasonably would relate to the subject matter of the summons, be undertaken.”
2. The IRS has requested signature cards and numerous documents that have no use in a civil investigation. Such should be separated and omitted from the final order of this Court.
3. The IRS has made an institutional commitment to prosecute all classified by the IRS as “non-filers” such as Harry Freeman. Also, the IRS only uses the 7609 Summons in cases where they have made a decision to prosecute. This is well known. See United States v. Genser, 582 F.2d 292 (1978), “… the IRS, in issuing administrative summonses under § 7602, may not act outside its statutory authority by garnering evidence in furtherance of a solely criminal investigation. If a court determines in the context of enforcement proceedings that a summons was illegally issued, it will deny enforcement of the summons. 400
and
“In sum, although § 7602 does not expressly restrict the power to issue a summons thereunder as long as the purpose is to ascertain the correctness of any return and the material sought is relevant to such inquiry, LaSalle, Donaldson, Friedman, and the other cited decisions have promulgated a judicial policy, binding on the IRS, to protect a taxpayer from any attempt on the
part of the IRS to obtain evidence by use of § 7602 summonses after the IRS recommends prosecution to the Department of Justice or after the IRS has abandoned, in an institutional sense, the pursuit of civil tax determination or collection. The only effective remedy for violation of that policy is to require suppression of the evidence obtained as the evidentiary fruits of an illegal summons.
4. Petitioner has no objection to a court order allowing access to his bank records if the court order limits their use to a civil investigation. See United States v. Genser, 602 F.2d 69 (3rd Cir. 1979), “During the course of most investigations where significant amounts of civil liability are involved the IRS agents conducting and reviewing the inquiry will recognize that a recommendation for criminal prosecution might eventually be forthcoming. Nevertheless, a valid summons still may be issued under § 7602 so long as the IRS uses that summons to pursue civil penalties and interest.
I hereby certify that on or about this date, I mailed properly a copy of this pleading to all parties at their proper addresses(es), postage pre-paid.
Date: ______________ ________________________________________
Petitioner, pro se
Harry Freeman
103 Patriot Way
Freetown, USA 30533