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UNITED STATES v. MERRELL

July 8, 1969

United States of America and Patrick C. Putney, Special Agent, Internal Revenue Service, Petitioners
v.
Edgar S. K. Merrell II, Respondent


Port, District Judge.


The opinion of the court was delivered by: PORT

Memorandum-Decision and Order

PORT, District Judge:

 The factual background in this case is relatively simple. The taxpayers, Raymond B. and Eleanor E. Lee, retained Edgar S. K. Merrell, II, an attorney, to prepare for them their federal tax returns for the years 1957-66 inclusive. In connection with this, the taxpayers provided Merrell with various documents, including records of income and expenses, and other papers necessary for the preparation of their returns.

 On October 17, 1968 Patrick C. Putney, a special agent with the Internal Revenue Service, served upon Merrell a summons issued pursuant to 26 U.S.C. § 7602, directing him to appear, produce, and testify concerning the following items:

 
(1) retained copies of the taxpayers' returns for the years 1957-62 inclusive, and
 
(2) summaries of income and expenses furnished to Merrell by the taxpayers, and used by Merrell in the preparation of their returns, for the years 1957-66 inclusive, and
 
(3) workpapers and schedules prepared and used by Merrell in the preparation of the returns for the years 1957-66 inclusive.

 Upon failure to secure voluntary compliance with the summons, a proceeding to judicially enforce the summons pursuant to 26 U.S.C. §§ 7402(b) and 7604(a) was instituted, and I signed an order on February 11, 1969 requiring Merrell to show cause why he should not be compelled to obey the summons that was directed to him. On the return of the show cause order at Syracuse on March 10, 1969, I signed an order requiring compliance with the summons and directed that Merrell produce the records and documents requested before Special Agent Putney on March 19, 1969. The enforcement of this order was stayed pending the determination of the instant motion.

 The motion herein was filed on March 19, 1969 by the taxpayers, and requests that this court issue an order that would:

 
(1) allow them to intervene in the above entitled proceeding, and
 
(2) deny the application for an order compelling compliance by Merrell with the Internal Revenue summons served upon him, and
 
(3) vacate said summons, and grant such other and further relief as the court deems proper.

 At the hearing on this motion, held at Utica on March 24, 1969, and in the papers presented to the court, the taxpayers have argued that they have a right to intervene, and that the attorney-client privilege and the privilege against self-incrimination protect the sought after documents. Finally, taxpayers claim that Merrell should not be required to produce these documents in a situation that is, in reality, the ...


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