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UNITED STATES v. HAMILTON FED. S&L ASSN.

June 28, 1983

UNITED STATES OF AMERICA, Petitioner,
v.
HAMILTON FEDERAL SAVINGS AND LOAN ASSOCIATION, ET AL., Respondents


McLaughlin, District Judge.


The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER

McLAUGHLIN, District Judge

 The United States of America, petitioner, seeks to enforce two sets of Internal Revenue Service ("IRS") third-party summonses. They were issued by the IRS pursuant to Section 7602 of the Internal Revenue Code, 26 U.S.C. § 7602 as part of its investigation of the income tax liability of Harvey Kleinman for the period of January 1, 1977 through December 31, 1980. Respondents are seven "third-party record keepers," as defined in 26 U.S.C. § 7609(a)(3). The taxpayer has instructed respondents not to comply with these summonses and has intervened in this proceeding pursuant to 26 U.S.C. § 7609(b). The Court has jurisdiction to enforce the summonses pursuant to 26 U.S.C. §§ 7402 and 7604.

 Taxpayer -- with a legion of procedural objections suggesting a Stalingrad defense -- argues that the summonses should not be enforced for the following reasons: (1) The IRS sent taxpayer's notice of the service of the summonses to 10346 N.E. 5th Ct. when taxpayer, in fact, resides at 10346 N.W. 5th Ct. (2) The thirteen summonses served upon respondents are unspecific and irrelevant. In addition, facial defects appear upon (a) the thirteen summonses; (b) the seven petitions to enforce those summonses; (c) the seven declarations of IRS Special Agent Brozen in support of those petitions to enforce; and (d) the orders to show cause issued by the court to respondents. (3) A conspiracy against taxpayer exists between Special Agent Brozen and taxpayer's former employer. (4) Special Agent Brozen failed to reveal to the Court in his declaration that respondent Maspeth Federal Savings and Loan Association had already produced documents requested in the original summonses issued to Maspeth.

 DISCUSSION

 (I) NOTICE TO TAXPAYER

 Taxpayer argues that the notification requirements of 26 U.S.C. § 7609 must be enforced strictissimi juris, or else the third-party summonses must be quashed and the Court's Orders to Show Cause vacated. Section 7609 provides in pertinent part:

 
Sufficiency of notice -- Such notice shall be sufficient if . . . such notice is served in the manner provided in Section 7603 (relating to service of summons) upon the person entitled to notice, or is mailed by certified or registered mail to the last known address of such person, or, in the absence of a last known address, is left with the person summoned. . . .

 26 U.S.C. § 7609(a)(2).

 Thus, under the statute, notification to the taxpayer that his records have been summoned from a third-party recordkeeper is sufficient if the notice is served: (1) in accordance with § 7603; or (2) by certified or registered mail to the taxpayer's last known address. In addition, the notice must be accompanied by a copy of the summons which has been served upon the third-party recordkeeper and must contain directions for staying compliance with the summons. 26 U.S.C. § 7609(a)(1).

 Section 7603 governs service of the underlying summons upon the third-party recordkeeper. Section 7609 governs service of notification upon the taxpayer that his records have been summoned from the third-party recordkeeper.

 The taxpayer alleges that the notice served upon him pursuant to § 7609 was defective because the notification was mailed to the wrong address. Contrary to taxpayer's assertion, however, strict compliance with § 7609 is not required. Taxpayer's reliance on United States v. Myslajek, 568 F.2d 55 (8th Cir. 1977), cert. denied, 438 U.S. 905, 57 L. Ed. 2d 1147, 98 S. Ct. 3123 (1978); and United States v. Payne, 491 F. Supp. 74 (N.D.Tex. 1980), aff'd 648 F.2d 361 (5th Cir.), cert. denied, 454 U.S. 1032, 102 S. Ct. 570, 70 L. Ed. 2d 476 (1981), is misplaced. Those cases held that the procedural requirements of § 7603 for serving the person named in the summons itself must be strictly observed. The cases do not deal with the distinct problem of serving the taxpayer (under § 7609) with notice that his records are being sought from a third party.

 The sufficiency of the notice to the taxpayer must be judged by different standards since its only purpose is to apprise the noticee *fn1" of an event that has already occurred. R. Fink, Tax Fraud -- Audits Investigations, Prosecutions, Vol. 1, § 7.05[2] at 7-53 (MB 1981). Here, the notice was mailed in a timely fashion by registered or certified mail, and it contained all the required additional documents. The only defect was that the notices were mailed to 10346 N.E. 5th Ct. when the taxpayer's last known address and residence was 10346 N.W. 5th Ct. Despite this clerical error, the taxpayer noticee received the necessary papers. *fn2" He was entitled to no more. See United States v. Bank of Moulton, 614 F.2d 1063 (5th Cir. 1980). *fn3"

 I note, in passing, that the error here is partially attributable to the taxpayer himself. The power of attorney, which was signed and filed with the IRS, indicated that the correct address was "10346 N.E. 5th Ct., Coral Springs, Florida 33065." Surely the IRS should not be penalized ...


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