Komessar et al v. United States of America et al

Filing 13

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 8/29/2013. Mailed notice by judge's staff. (srb,)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARK KOMESSAR, et al.,
Petitioners,
v.
UNITED STATES OF AMERICA,
et al.,
Respondents.

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Nos.

13 C 3152 and
13 C 3153

MEMORANDUM ORDER
These actions, initiated by Mark Komessar together with
related individuals and Komessar & Associates, LLC (all
collectively referred to in this memorandum order as “Komessars”)
by filing Petitions to Quash Third Party Summonses (“Petitions”)
issued by the Internal Revenue Service to American Chartered Bank
(the subject of Case No. 13 C 3152) and to J.P. Morgan Chase,
N.A. (the subject of Case No. 13 C 3153), were responded to by
the United States (one of the three named respondents) and were
noticed up for hearing on August 5, 2013.1

At that time

Komessars--acting through Mark Komessar, who is a
lawyer--requested, and this Court granted, time to file a reply
on or before August 19, with the next status hearing set for
August 28.
Despite that request, nothing was filed before that status

1

Each Petition appears as Dkt. No. 1 and each government
Response appears as Dkt. No. 6 on the respective case dockets.

hearing, when Mark Komessar appeared in Court and stated that
nothing would be filed and that this Court should decide the
matter based on the Dkt. No. 1 and Dkt. No. 6 filings.2

Because

jurisdiction is always a threshold consideration, it should be
said at the outset that Komessars have not properly served the
United States in either case as required by Fed. R. Civ. P.
(“Rule”) 4(i)(1)(B).3

That being so, these proceedings should be

and are dismissed for lack of jurisdiction--and hence the
Petitions are denied.
But because Komessars could avoid that jurisdictional flaw
by properly instituting new proceedings, this memorandum order
will go on to deal with the substance of Komessars’ effort.

Only

a brief discussion is required to show that they would fare no
better in substantive terms, so that any further pursuit of the
matters would be frivolous.
Nearly a half century ago, in United States v. Powell, 379
U.S. 48 (1964), the Supreme Court set out the light burden

2

It must be said that the just-described course of conduct
is puzzling. Whenever Mark Komessar changed his mind about
filing a reply, all he had to do was to telephone this Court’s
staff, which would have enabled this Court to stop watching for
the reply and go about the business of deciding the cases, while
at the same time sparing Mark Komessar a needless trip to the
courthouse.
3

As the United States also points out in each Response at
6 n.1, petitioners did not bother to obtain judicial summonses
from the Clerk as Rule 4 requires. Attorney Komessar surely had
to know better.
2

imposed on the IRS in connection with such summonses.

As our

Court of Appeals said on that score in 2121 Arlington Heights
Corp. v. IRS, 109 F.3d 1221, 1224 (7th Cir. 1997):
First, the government must make a prima facie case that
the IRS issued the summons in good faith. United
States v. Kis, 658 F.2d 526, 536 (7th Cir. 1981), cert.
denied, 455 U.S. 1018, 102 S.Ct. 1712, 72 L.Ed.2d 135
(1982); United States v. Gertner, 65 F.3d 963, 966
(1st Cir. 1995). That isn't much of a hurdle. 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. United States v. Powell, 379 U.S. 48, 57-58,
85 S.Ct. 248, 254-55, 13 L.Ed.2d 112 (1964). The
government typically makes that showing through the
affidavit of the revenue agent conducting the audit.
Just so here, where IRS Special Agent Gus Iqal (“Iqal”) has
amply supported the establishment of the four factors identified
in Powell, 379 U.S. at 57-58.

Simply reading the Iqal

declaration and matching its provisions with the four Powell
factors amply demonstrates that--and as stated earlier, Komessars
have offered nothing to counter that.

There is no need “to gild

refined gold, to paint the lily”4 by repeating the government’s
detailed exposition in Dkt. No. 6 of each case.
Conclusion
As taught three decades ago by United States v. Kis, 658

4

William Shakespeare, King John act 4, sc. 2, line 11.
Parenthetically, this Court has never understood how or why such
a felicitous turn of phrase became corrupted in common parlance
to the wholly inapropos mixed metaphor “to gild the lily.”
3

F.2d 526, 539 (7th Cir. 1981), under the circumstances presented
here “the District Court should dispose of the proceeding on the
papers before it and without any evidentiary hearing.”
Accordingly, even if Komessars had not failed for lack of
jurisdiction their requests for discovery and evidentiary
hearings would have to be denied and these actions would have to
be dismissed on substantive grounds.5

As stated earlier, both

Petitions are denied and these actions are dismissed in all
events.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

August 29, 2013

5

As an adjunct to such dismissal, individual respondents
Iqal and Steven Miller would have to be dismissed independently
because any suit against them in their official capacity is
essentially a suit against the United States, which has been
properly made a defendant here.
4