Before LUMBARD, Chief Judge, and SWAN and MOORE, Circuit Judges.
LEONARD P. MOORE, Circuit Judge.
This is an appeal from an order denying the quashing of Internal Revenue Service summonses issued on June 19, 1961, under Section 7602 of the 1954 Internal Revenue Code, directed to Magnus, Mabee & Reynard, Inc. (the corporation) and to Hurdman & Cranstoun (the accountants), requiring them to produce certain records relating to Percy C. Magnus and Margaret A. Magnus (the taxpayers) whose tax liabilities are under investigation. This is the second time these summonses have been before this court on a motion to quash. The first attack on the summonses was made by the taxpayers who moved to quash the summonses on June 29, 1961. Their application was denied by Judge Dimock on July 14, 1961, and reargument was denied (D.C., 196 F. Supp. 127). The taxpayers appealed. The decision below was affirmed in an opinion by this Court on February 13, 1962. (2 Cir., 299 F.2d 335). Petitions for rehearing and rehearing in banc were denied. A stay was granted on April 4, 1962, by Mr. Justice Harlan pending application for a writ of certiorari. On April 10, 1962, ten months after the summonses were originally issued, an indictment was filed charging Percy Magnus with tax evasion and failure to file returns. Thereafter, certiorari was denied by the Supreme Court on June 11, 1962 (370 U.S. 918, 82 S. Ct. 1556, 8 L. Ed. 2d 499). The corporation then sought on July 17, 1962, to stay enforcement and quash the summons directed to it, and the taxpayer Percy C. Magnus sought similar relief against the summons directed to the accountants. Both applications were denied in an opinion by Judge Dimock on September 19, 1962, and it is this ruling that is the subject of this appeal.
The appellant corporation is not the taxpayer. The records specified in the summons are the corporation's, not the taxpayer's. From a procedural viewpoint, the petition to quash the summons directed to the corporation was made only by the corporation. The accountants to whom the other summons was directed made no motion to quash. The petition, in effect on behalf of the accountants, was made by the taxpayer himself. The appeals are taken by the corporation as to the summons directed to it and by Percy C. Magnus as to the summons directed to the accountants.
The background facts reveal that the taxpayer Percy C. Magnus who owns 80% of the stock of the corporation did not file income tax returns for the years 1948 through 1957 or pay any income taxes during this period. After investigation had been commenced, Percy C. and Margaret A. Magnus, his wife, filed delinquent returns for these years which disclosed a gross income for these years in excess of $1,280,000. The primary source of this income was derived from the corporation; the accountants, using the corporation's books, prepared the delinquent returns. Through the issuance of the summons, the revenue agents sought to obtain access to the corporation's books to ascertain what taxes, if any, should have been reported by the taxpayers for the years in question and to relevant papers, records or documents used by the accountants in preparing the returns. The summonses were issued some ten months before the indictment was returned. They were issued by a Special Agent just beginning his investigation of the taxpayers' returns, at a time when no final conclusion had, or even could have, been made as to whether criminal action was indicated. However, due to delays resulting from appellant's efforts to prevent compliance, the government was forced to secure an indictment against the taxpayers before the summonses could be enforced in order to prevent the statute of limitations on criminal prosecutions from running. The question before us is whether the right to enforcement under those circumstances is thereby nullified and the government forced to resort solely to Rule 17 of the Federal Rules of Criminal Procedure.
Section 7602 authorizes the Secretary of the Treasury or his delegate to issue a summons for the examination of books, papers and other documents and records
"For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, * * *."
The taxpayer, Percy C. Magnus, claims that, since he has been indicted, albeit some ten months subsequent to the issuance of the summonses, the investigative power of the government must be limited exclusively to the discovery and inspection provisions of Rule 17 of the Federal Rules of Criminal Procedure and that once an indictment has been returned, service or enforcement of such summonses is absolutely foreclosed. For this proposition appellant relies heavily on United States v. O(Connor, 118 F. Supp. 248 (D. Mass. 1953) and Application of Myers, 202 F. Supp. 212 (E.D. Pa. 1962). O'Connor involved a summons directed to an accountant of the taxpayer under investigation. A Special Agent had completed his investigation, turned his report over to higher authorities and an indictment had already been returned when the Special Agent issued a summons against the accountant. The Special Agent there admitted that the summons was for the purpose of criminal prosecution and that he had no matter involving the taxpayer presently pending before him when the summons was issued. In denying a government petition to enforce the summons, Judge Wyzanski was of the view that the pre-trial discovery powers of the government in criminal cases was severely limited and that the primary body for the compulsory disclosure of documents before trial is the Grand Jury. He further stated that:
"To encourage the use of administrative subpoenas as a device for compulsory disclosure of testimony to be used in presentments of criminal cases would diminish one of the fundamental guarantees of liberty. Moreover, it would sanction the perversion of a statutory power. The power under § 3614 [now Section 7602] was granted for one purpose, and is now sought to be used in a direction entirely uncontemplated by the lawgivers." (118 F. Supp. 248, 251).
The Myers case, which involved a summons issued several days before the criminal prosecution was set for trial, is of a similar effect.
Under the Federal Rules, discovery by the government is quite limited. Rule 16,*fn1 the general discovery provision, applies only to defendants. Rule 17(c)*fn2 was not intended to provide an additional means of discovery, but rather was meant to establish a liberal policy for the production, inspection and use of materials at the trial. Bowman Dairy Co. v. United States, 341 U.S. 214, 220-221, 71 S. Ct. 675, 95 L. Ed. 879 (1951).
As the Ninth Circuit in Boren v. Tucker, 239 F.2d 767 (1956) made clear, where there is a possibility of tax fraud, the taxpayer is faced with either a 50% penalty or a criminal prosecution or both. In investigating whether a fraudulent return changes the taxpayer's liability, the Internal Revenue Service must weigh the possibility of criminal prosecution.
The mere securing of an indictment does not conclude the task of the examining revenue agents. The Secretary or his delegate is charged with the responsibility of "making a return where none has been made" and verifying such returns as have been filed. The necessity of determining the correct tax liability and whether a 50% penalty for fraud should be imposed does not cease when an indictment is obtained because regardless of the outcome of any criminal trial, the tax and the penalty may still be payable (Helvering v. Mitchell, 303 U.S. 391, 58 S. Ct. 630, 82 L. Ed. 917). If a taxpayer were permitted to challenge every summons issued to a third person who might have books, records or information relating to the ascertainment of tax liability, the government's search for data to establish the truth or falsity of returns or the proper tax if no returns were filed would be completely blocked.*fn3 Adequate protection against violation of taxpayers' constitutional rights is afforded by safeguarding their own records against illegal search and seizure and by enforcement of the law against self-incrimination. However, to hold that information cannot be obtained under Section 7602 merely because it may be used in criminal proceedings would virtually write that Section out of the statute. Nor is there any conflict here between Rule 17 and Section 7602. They are not mutually exclusive. Each was designed to serve its own purpose. If the question of abuse of legal process arises, as the court may have believed to have been present in the O'Connor case, the courts can deal with such situations. Certainly such facts are not present here.
To prevent enforcement of such summonses because compliance was resisted for such a lengthy period that the government was forced to return an indictment to prevent the criminal statute of limitations from running would encourage litigants to resist such summonses wholly for the purpose of delay. Without questioning the reasons for appellants' tactial efforts in this case, the fact remains that to quash the summonses under these facts would lead to that result. The appellants here failed to file any returns until September, 1959, for the years 1947 through 1957, subsequent to the commencement of an examination into their affairs by the Internal Revenue Service. The summonses as originally issued came well ...