United States of America v. Barringer
OPINION (See Written Opinion): The United States Petition (d/e 1 ) is GRANTED and Respondent's Motion (d/e 4 )is DENIED. Respondent must comply with the IRS summons by February 7, 2013. This matter is set for a status conference on February 11, 2013, at 9:00 A.M. at which time the Parties will update the Court on Respondent's compliance with the summons and this Court's order that he comply with the summons. If Respondent complies with the summons and the Parties determine the February 11, 2013 hearing is no longer necessary, the Parties are instructed to inform the Court in writing and status conference will be canceled. Entered by Judge Sue E. Myerscough on 01/18/2013. (VM, ilcd)
Friday, 18 January, 2013 04:10:23 PM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
UNITED STATES OF AMERICA,
SUE E. MYERSCOUGH, U.S. District Judge:
Petitioner, the United States of America, filed a Petition to Enforce Internal
Revenue Service Summons (Petition) (d/e 1). This matter is now before the Court
on Respondent Jerold Barringer’s “Motion to Dismiss” (Motion) the Petition (d/e
4). The Motion is more akin to a Motion to quash the summons issued by the
Internal Revenue Service (IRS). Respondent maintains that because of the lack of
internal revenue districts and “district directors”, the United States is without
authority to issue the summons. Respondent’s Motion is DENIED.
In August 2011, Mark J Bettinger, an IRS officer, served Respondent with a
summons. The summons required Respondent to appear before Bettinger on
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September 6, 2011, and give testimony related to Respondent’s tax liability for tax
years 2001, 2002, 2003, 2004, 2005, 2006, and 2007. The summons also
instructed Respondent to bring all documents and records in his possession that
related to income Respondent received during those years. Respondent has refused
to comply with the summons.
On November 30, 2012, the United States filed the Petition. This Court
ordered Respondent to appear before the Court to show cause why he should not be
compelled to obey the IRS summons served upon him in August 2011. The Court
ordered Respondent to appear in court on January 14, 2013. In the meantime,
Respondent filed the Motion, in which he argues the United States does not have
the authority to issue the summons. In its response, the United States asserts that
the Motion should be denied because the bureaucratic restructuring of the IRS did
not eliminate the statutory requirement that United States citizens file tax returns
under the circumstances set forth in the tax statutes. The United States also noted
several cases in which Respondent’s argument has been rejected.
At the January 14, 2013 hearing, Respondent stated that if the Court rejected
the arguments contained in his Motion regarding the structure of the IRS, the Court
could compel him to comply with the summons. The Court orally denied the
Motion and ordered Respondent to comply with the summons.
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If an IRS summons is challenged, the United States must meet the
requirements for enforcement set out by the United States Supreme Court in United
States v. Powell, 379 U.S. 48, 57-58 (1964). Those factors have been applied by
the Seventh Circuit, which described the factors as follows:
[T]he government must make a prima facie case that the IRS issued
the summons in good faith . . . . The government must only show: the
investigation underlying the summons has a legitimate purpose; the
information sought may be relevant to that purpose; the information is
not already in the IRS's hands; and the IRS has followed the statutory
steps for issuing a summons. The government typically makes that
showing through the affidavit of the revenue agent conducting the audit.
2121 Arlington Heights Corp. v. IRS, 109 F.3d 1221, 1224 (7th Cir. 1997)
Instead of addressing these factors, Respondent challenges the authority of
the United States to seek enforcement of the summons. As stated, the crux of
Respondent’s Motion is that the Internal Revenue Service Restructuring and
Reform Act or 1998, Pub.L. No. 105-206, 112 Stat. 685 (1998) (Restructuring and
Reform Act) eliminated internal revenue districts and district directors.
Respondent cites 26 C.F.R. 301.6301-1, which states that “[t]he taxes imposed by
the internal revenue laws shall be collected by district directors of internal
revenue.” Because the position of district director no longer exists, “and no new
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delegation individual in a statutory or regulatory structure has been identified”, the
United States does not have the authority to proceed with enforcement of the
This argument has been rejected by the United States Tax Court in Grunsted
v. Commissioner, where the court stated as follows:
The IRS has been reorganized several times in recent history.
The district director position and responsibilities were assigned to
others after the Internal Revenue Service Restructuring and Reform
Act of 1998(RRA), Pub.L. 105–206, 112 Stat. 685, required the
Commissioner to eliminate or substantially modify the IRS' national,
regional and district structure. To ensure continuity of operations, the
RRA specifically included a savings provision. Id. sec. 1001(b). The
savings provision applies to keep in effect regulations that refer to
officers whose positions no longer exist. It also provides that nothing
in the reorganization plan would be considered to impair any right or
remedy to recover any penalty claimed to have been collected without
Furthermore, IRS Deleg. Order 1– 23 (formerly IRS Deleg.
Order 193, Rev. 6), Internal Revenue Manual pt. 188.8.131.52 (Nov. 8,
2000) allows directors, submission processing field, compliance
services field and accounts management field to appoint assessment
officers. This order further implemented Congress' intent that the IRS'
normal duties, including that of assessment, not be obstructed by the
136 T.C. 455, 461 (2011) (citations omitted). Moreover, as the United States
points out in its Reply to Respondent’s Motion, Respondent is an attorney and has
taken this position as an advocate for his clients in other courts and this position
has been rejected. See United States v. Sanders, 2012 WL 4088823, at *7 (S.D. Ill.
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2012) (calling Respondent’s argument “patently frivolous” and “meritless”);
United States v. Springer, No. 10-5037, Order (10th Cir. July 28, 2011) (ordering
the clerk of the Tenth Circuit to initiate a disciplinary case against Respondent
after stating that “these types of spurious delegation arguments have been
consistently rejected as patently frivolous”); United States v. Miller, 444 Fed.
Appx. 106 (8th Cir. 2011). The Court agrees with the reasoning set forth in
Grunsted, and repeated in Sanders, Springer, and Miller. Accordingly, the Court
finds that the United States has the authority to issue and proceed with enforcement
of the summons. Because the United States has satisfied the Powell factors,
Respondents Motion, which seeks to dismiss or quash the summons, is denied.
THEREFORE, the United States Petition (d/e 1) is GRANTED and
Respondent’s Motion (d/e 4)is DENIED. Respondent must comply with the IRS
summons by February 7, 2013. This matter is set for a status conference on
February 11, 2013, at 9:00 A.M. at which time the Parties will update the Court on
Respondent’s compliance with the summons and this Court’s order that he comply
with the summons. If Respondent complies with the summons and the Parties
determine the February 11, 2013 hearing is no longer necessary, the Parties are
instructed to inform the Court in writing and status conference will be canceled.
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IT IS SO ORDERED.
ENTER: January 18, 2013.
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
United States District Judge
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