# Petition — Kleinman v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0809%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 983

## Text

— ee —— iz ——_———
NO. 83: age
in the
Supreme Court
of the

United States

October Term, 1983

HARVEY S. KLEINMAN AND
BONNIE M. KLEINMAN,
Petitioners,
VS.
UNITED STATES OF AMERICA
AND INTERNAL REVENUE SERVICE

SPECIAL AGENT EUGENE BROZEN,
Respondents.

On Petition for Writ of Certiorari
To the United States Court of Appeals,
For the Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES SUPREME COURT

ROBERT 4. SHUPACK, PA.
ROBERT A. SHUPACK

Attorney for Petitioners
2434 Hollywood Blvd.
Hollywood, Florida 33020
(305) 922-2889

QUESTIONS PRESENTED
I,

IN AN INTERNAL REVENUE SERVICE
SUMMONS ENFORCEMENT PROCEEDING
BROUGHT PURSUANT TO SECTIONS 7602
AND 7609 OF THE INTERNAL REVENUE
CODE OF 1954, AS AMENDED, HERE-
INAFTER THE CODE, IS THE TAXPAYER
(INTERVENOR) ENTITLED TO AN
ADVERSARY (EVIDENTIARY) HEARING
WHEN THE TAXPAYER FILES RESPONSES
ALLEGING WITH PARTICULARITY,
SUPPORTED BY AFFIDAVITS, THAT SUCH
SUMMONS WAS ISSUED IN “BAD FAITH”
FOR A PURPOSE NOT AUTHORIZED BY
SECTIONS 7602 AND 7609 OF THE CODE.

{I.

IS SUCH A TAXPAYER WHO IS DENIED
AN ADVERSARY (EVIDENTIARY)
HEARING DENIED DUE PROCESS OF LAW
AS REQUIRED BY THE FIFTH AMEND-
MENT TO THE UNITED STATES
CONSTITUTION.

III.

IS SUCH A TAXPAYER’S APPEAL TO A
UNITED STATES COURT OF APPEALS
RENDERED MOOT WHEN THE INTERNAL
REVENUE SERVICE OBTAINS THE
SUMMONED RECORDS.

TABLE OF CONTENTS

I ass on cc secs e su oie d mo i
a8 oka pe a bleldecervoes iii-v
Opinions Below and Court's Jurisdiction ......... 1
Constitutional and Statutory ProvisionsInvolved. 1
Se 2
Reasons for Granting the Writ................. 6
ee ea hk veo nies ccae nevis 7
er cs cece cs cecscvceeecss 20
I A-E

TABLE OF AUTHORITIES
Case Pages
Armstrong v. Monzo,
Ft RED oi vy 8 8g 00s bare eens 13

Donaldson v. United States,
a ee te oo os oe oe he eae 14

Genser v. United States,
pA oT ) ee ee rrr 7

Goldberg v. Kelley,
og eR Tears ae eee 13

Grannis v. Ordean,
SG EA EEE ssc eos onc ech oe eke 13

Greene v. McElroy,
Pe UE vec case esas cease ches e ee 14

Gumbel v. Pitkin,
ay a os cco clve aces einwabun 19

Marbury v. Madison,
5 U.S. (1 Cranch) 137, 163 (1803) ............. 12

North Carolina v. Rice,
Se aa NEED, oo dacs y bw awe ste eke tees 19

Ownbey v. Morgan,
Se IIE 556s cee oad wd cee aes 19

Reisman v. Caplin,
375 U.S. 440 (1964) ....... 6, 7, 8, 9, 10, 11, 12, 13,
14, 15, 16, 19, 20

iii

TABLE OF AUTHORITIES (Continued)
Case Pages

Roadway Express, Inc. v. Piper,
po ef ee rer eae 19

Sibron v. New York,
er RE oc ck bie eas Bika cae 19

Southern Pacific Terminal Co. v.
Interstate Commerce Commission,
Oe MD hoc Soe yo v6 vivo biel echo 17

United States v. Harris,
628 F.2d 875 (Sth Cir. 1975) ................ 7,10

United States v. LaSalle,
437 U.S. 313 (1978) ........ 6, 7, 10, 12, 18,
14, 15, 16, 19, 20

United States v. Morgan Guaranty Trust Co.,
G7 Fe OO UNE Ut ABTS) . ccc ee 7,10

United States v. Powell,
$79 U.S. 48 (1964) ............. 6, 7, 8, 10, 12, 13,
14, 15, 16, 19, 20

United States v. Rylander,
US. 103 S.Ct. 1548 (1983) .......... 8

United States v. Salter,
432 F.2d G07 (ist Cir. 1976) ............-.5.. 7

TABLE OF AUTHORITIES (Continued)
Case Pages

United States v. Samuels, Kramer & Co.,

Tin oe tees wee Car. 1968)... .. «2. 7, a
United States u Southeast First National Bank
of Miami Springs,

655 F.2d 661 (5th Cir. 1981)............ 7,10, 14

Wilner v. Committee on Character & Fitness,
Re 13,14

Weinstein v. Bradford,
a er 17, 18

CONSTITUTION AND STATUTES

Amendment V, United States Constitution... 1,6, 13
Title 26 United States Code §6103 ............... il
Title 26 United States Code §7213 ............... 11
Title 26 United States Code §7602....... 1, 3, 5, 9, 12
Title 26 United States Code §7603 ............... 5
Title 26 United States Code §7609....... 1, 2, 3, 4, 6,

9,12, 14
Title 28 United States Code §1254(1)............. 1

OPINIONS BELOW

The opinion of the United States Court of Appeals
for the Eleventh Circuit (App. A, infra, P A-1) is
unreported. The Court dismissed the appeal determining
that the Appeal was moot on August 17, 1983 (App. A,
infra, P A-1). The decision of the United States District
Court enforcing the summonses was entered on April
23, 1983 (App. B infra, P B-1-3). The Orders of the
United States District Court for the Southern District
of Florida and the United States Court of Appeals for
the Eleventh Circuit denying Petitioners’ Motion To
Stay were entered on April 23 and April 25, 1983,
respectively. (App. D-1-3; App. E-1)

The opinion of the United States Court of Appeals
was entered on August 17, 1983. The jurisdiction of
this Court is invoked under 28 U.S.C. Section 1254(1)
and Amendment V of the United States Constitution.

CONSTITUTIONAL AND
STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the
United States and Sections 7602 and 7609 of the Internal
Revenue Code of 1954, as amended, 26 U.S.C. Sections
7602 and 7609 as set forth in the Appendix. (App. C,
infra, C-1 to C-9).

STATEMENT OF THE CASE

Harvey S. Kleinman and Bonnie M. Kleinman, his
wife, hereinafter the Petitioners, were noticed that
four Internal Revenue Service summonses were served
upon two banks in Broward County Florida (R. I-4;
III-4; IV-5; V-4).! Each of the summonses were served
upon the banks as third party record keepers, pursuant
to Section 7609 of the Code. Petitioners, through counsel,
pursuant to Section 7609(b\X2) of the Code, timely notified
each of the respective banks not to comply with the
summonses (R, I-73, 74; III-85, 86; IV-86, V-144, 145).

The United States of America and Special Agent,
Eugene Brozen, of the Internal Revenue Service,
hereinafter IRS, filed four Petitions to Enforce the
Summonses in the United States District Court for the
Southern District of Florida (R, I-1; III-1; IV-1; V-4).
The Court issued four Orders to Show Cause and further
issued an Order sua sponte consolidating the four cases
(R, I-7; III-10; IV-9; V-67). The Court in said Orders to
Show Cause ordered that Petitioners, if they opposed
the enforcement action, intervene and set forth reasons
supported by affidavits as to why enforcement should
not be granted (R, I-8; IJI-11, IV-10; V-68).

‘At the time this Petition was prepared counsel had possession
of the record prepared for the Appeai to the United States Court
of Appeals for the Eleventh Circuit to prepare Appellant's Brief.
Therefore, all references to the Record “R” are accurate references
though the record has not yet been certified to this Court. However,
since the Record is in five volumes which do not have consecutively
numbered pages, record references wil] be first to the Record
“R", next to the volume I, II, III, IV or V and last to the page, e.g.,
R, I-1.

Petitioners filed a Response, Supplemental Response
and Motion for Evidentiary Hearing and to Orally
Examine Special Agent, Brozen, supported by affidavits,
and a Motion to Strike the Petition and/or Quash the
Summons (R, I-12, 17, 19, 22, 26, 82; III-15, 17, 20, 24, 70,
79, 94; IV-14, 16, 19, 23, 80, 95; V-9, 72, 74, 77, 81, 138,
153). Petitioners contended in their Response,
Supplemental Response and Motion for Evidentiary
Hearing, supported by affidavits that the summonses
were issued in “bad faith” and for a purpose not authorized
by Sections 7602 and 7609 of the Code (R, I-17-18, 30-31,
42-44; III-28-30, 40-42, 70-76; IV-14, 15, 27-29, 39-41,69-
72; V-72-73, 85-87, 97-99, 127-130). Specifically, Petitioners
alleged that the purpose for the issuance of the summonses
was to obtain Petitioners’ records and deliver same to
a private third party to assist said third party in private
litigation with Petitioners (R, I-42-44; III-40-42, 70-76;
IV-39-41, 69-72; V-97-99, 127-130). Petitioners’ Response,
Supplemental Response and Motion for Evidentiary
Hearing and exhibits attached thereto, detailed that
Petitioner, Harvey S. Kleinman was the former sales
manager for American Permac, Inc., a New York
corporation, hereinafter ‘‘Permac’”’, had left his
employment and established a competitive business
enterprise (R, I-30-31; III, 40-42; IV-27-29; V-85-87). Permac
sued the Petitioners in a Florida state court alleging
events which occurred both before and after Petitioner
left Permac caused Permac damage (R, I-30-31; III-40-
42; IV-27-29; V-85-87). To obtain discovery not otherwise
available and with the avowed purpose of destroying
Petitioners’ business, Permac contacted the IRS (R,
1-30-31; III-40-42; IV-27-29; V-85-87).

The former comptroller of Permac was present
during meetings of the IRS and Permac at all pertinent

times. He executed an affidavit stating that he was
present at a meeting between agents of the IRS, including
Special Agent, Eugene Brozen, whereby Permac told
the IRS that Permac wanted the information obtained
from the income tax investigation of Petitioner, Harvey
S. Kleinman, delivered to it and Brozen acquiesced. (R,
III-70-73; IV-69-72; V-127-130).’

Appellees filed a Response to the Motion for
Evidentiary Hearing. Said Response, citing applicable
case law, acknowledged that Petitioners were entitled
to an evidentiary hearing (R, I-80; II? 92; IV-93; V-151).

The Lower Court denied any form of evidentiary
hearing. (II-R-1-24)

Petitioners further alleged Section 7609 Code defects
in the summonses and requested an evidentiary
(adversary) hearing on such defects. These allegations
may be briefly summarized as follows:

1. Though the Petitioners had received the notices
of the summonses, the notices contained the incorrect
address of Petitioners (R, I-35; III-33; IV-32; V-90);

2. Though records of the Petitioner, Bonnie M.
Kleinman, were sought to be produced by the summonses,
neither the summonses nor the Petitions for enforcement
stated that her tax liability was under investigation or
that her records were relevant or material (R, I-16-17;
ITI-39-40; IV-38-39; V-96-97);

"Bonnie Kleinman is not under investigation but her individual
records were summoned from the Third Party Recordkeepers.

3. Each of the summonses sought certain specific
records and then contained language requesting “.. .
including but not limited to...” and Petitioners
contended that the subject summonses lacked the
requirement that records be described with
“. . . reasonable certainty ...” required by Section
7602 and 7603 of the Code (R, I-16-17); III-39-40; IV-38-39;
V-96-97).

On April 22, 1983, the Court held a non-evidentiary
hearing on the Orders to Show Cause (R, II-1-24). Special
Agent Brozen was present at this hearing as was Arthur
Giles. (R, II-17). No testimony or evidence was allowed
to be taken and all of the objections to the summonses
were denied (R, II-23). The Court refused t» grant
Petitioners an evidentiary hearing on the que.ttion of
“bad faith” as well as the other issues raised by the
Petitioners (R, II-23). The Court also denied Petitioners’
motion to Stay pending appeal (R, I-87, 88; III-90, 100;
IV-100, 101; V-158, 159).

Petitioners immediately filed a Motion to Stay
with the United States Court of Appeals for the Eleventh
Circuit. The Court of Appeals denied the Motion to
Stay and Petitioners filed a Notice of Appeal (R, 1-89;
III-101; IV-102; V-160).

After the filing of a Notice of Appeal and prior to
the time Petitioners’ brief was due to be filed, the
government and Special Agent Brozen filed a Motion
to Dismiss with the Court of Appeals contending that
since the records sought by the summons had been

produced, the Appeal was moot.’ Petitioners filed a
timely Memorandum in Opposition to the Motion to
Dismiss. The Court of Appeals without opinion entered
an Order Dismissing the Appeal as Moot on August 17,
1983 (App. A, infra, P A-1).

REASONS FOR GRANTING THE WRIT

This Court has consistently held that a taxpayer
in an IRS summons enforcement proceeding who alleges
that a summons was issued for a purpose not authorized
by Section 7602 of the Code or whose enforcement
would be an abuse of the Court’s process has a right to
an adversary hearing and has granted writs of certiorari
to establish that Right and reaffirm it. Reisman u. Caplin,
375 U.S. 440 (1964); United States v. Powell, 379 U.S. 48
(1969); United States v. LaSalle, 437 U.S. 313 (1978).

The reasons for granting the writ are even rnore
compelling where the taxpayers alleged with particularity
the “Bad Faith” and supported such allegations by
affidavits and still were denied an adversary hearing.
Further, this is a case of first impression inasmuch as
the facts fall within the setting of Section 7609 of the
Code wherein Congress allowed taxpayers to intervene
in a third party record keeper enforcement proceeding.

Amendment V to the United States Constitution
provides, inter alia, that ‘No person shall
be ... deprived of life, liberty or property, without
due process of law...” The right to an adversary

*The Record did not contain the Motion or Petitioners’
Memorandum in Opposition thereto because same were filed after
the Record was prepared for Appellants.

hearing in a summons enforcement proceeding is grounded
upon this basic constitutional right which Petitioners
were denied.

Conflict also exists among the United States Courts
of Appeai with respect to the right to such adversary
hearing. Compare, United States v. Southeast First
National Bank of Miami Springs, 655 F.2d 661 (5th Cir.
1981); United States v. Harris, 628 F.2d 875 (5th Cir.
1975); United States v. Salter, 432 F.2d 697 (1st Cir.
1976); United States v. Samuels, Kramer & Co., 52
AFTR 2d 83-5670 (9th Cir. 1983); Genser v. United
States, 602 F.2d 69 (3d Cir. i979) and United States v.
Morgan Guaranty Trust Co., 572 F.2d 36 (2d Cir. 1978)
where the Courts recognized the right to an adversary
(evidentiary) hearing contrary to the case at bar and
the District Court for the Southern District of Florida
denied an adversary hearing and the Eleventh Circuit
dismissed the appeal as moot.

ARGUMENT

A. Departure From Accepted And Usual Course
Of Judicial Proceedings.

It is well established that a taxpayer in an IRS
summons enforcement proceeding has a right to an
adversary hearing where that taxpayer alleges that
the summons was issued and served for purposes other
than those authorized by Section 7602 of the Code.
Reisman v. Caplin, 375 U.S. 440 (1964); United States v.
Powell, 379 U.S. 48 (1964); United States v. LaSalle, 437
US. 313 (1978). The right of a taxpayer to“. . . challenge
the summons on any appropriate ground . . .” established

by Reisman v. Caplin, was further explained in United
States v. Powell, where the Court stated the following:

“This does not make meaningless the adversary
hearing to which the taxpayer is entitled before
enforcement is ordered. At the hearing he
‘may challenge the summons on any appropriate
ground,’ Reisman v. Caplin, 375 U.S. 440, at
449. Nor does our reading of the statutes mean
that under no circumstances may the Court
inquire into the underlying reasons for the
examination. It is the court’s process which is
invoked to enforce the administrative summons
and a court may not permit its process to be
abused. Such an abuse would take place if the
summons had been issued for an improper
purpose, such as to harass the taxpayer or to
put pressure on him to settle a collateral dispute,
or for any other purpose reflecting on the
good faith of the particular investigation. The
burden of showing an abuse of the court's
process is on the taxpayer, and it is not met by
a mere showing, as was made in this case, that
the statute of limitations for ordinary deficiencies
has run or that the records in question have
already been once examined.

Recently this Court in United States uv. Rylander, 103
S.Ct. 1548, (1983), reaffirmed the right of a taxpayer to
contest the enforcement of an IRS summons on any
appropriate grounds in an adversary proceeding.

In the case at bar, Petitioners (Intervening
Taxpayers) met their burden of showing that enforcement
of the subject summonses would be an abuse of tie

court’s process and that the summonses were issued
for a purpose not authorized by Section 7602 of the
Code: Petitioners, in accordance with Reisman v. Caplin,
and its progeny and pursuant to Section 7609 of the
Code, timely intervened in the enforcement action filing
a Response, Supplemental Response and Motion for
Evidentiary Hearing. Said pleadings alleged, supported
by affidavits, that the purpose for the issuance of the
summonses was to obtain Petitioners’ records from
third party record keepers and disclose those records
to a private third party. Specifically, Petitioners alleged
that an agent or agents of the IRS had agreed to obtain
records of the Petitioners through use of the summonses
and turn those records over to American Permac, Inc.
(Permac), an existing litigant with Petitioners. The
affidavit of Permac’s former comptroller was submitted
to the Court in support of the Motion for Evidentiary
Hearing, and he, under oath, swore that he was present
when Special Agent, Eugene Brozen,met with
representatives of Permac and discussed the disclosure
of records obtained by the IRS to Permac.‘

The Trial Court refused to grant the adversary
(evidentiary) hearing despite the substantial showing
by the Petitioners of the abuse of the court’s process
and the prohibited purpose for the issuance of the

‘Petitioners also in the pleadings fully developed the background
surrounding this agreement with the IRS. Specifically, Petitioners
detailed the fact that Permac employed Harvey Kleinman for 20
years and that he left their employment and established a competitive
business enterprise; that Permac sued Petitioners in State Court
in Florida for alleged acts occurring when he was their sales
manager and after leaving their employment; that a vendetta was
being waged by Permac against Petitioners in an effort to destroy
both them and their fledgling competitive business enterprise.

summons. Even the government had acquiesced and
agreed in its Response to the Motion for Evidentiary
Hearing that Petitioners had a right to such evidentiary
hearing.°

Though the Courts of Appeal have disagreed on
whether a taxpayer may merely plead “bad faith” or
must support such allegations with affidavits,* all Courts
of Appeal, until the case at bar, have agreed that some
form of adversary (evidentiary) hearing is required.’
Petitioners were denied an adversary (evidentiary) hearing
and never had the opportunity to prove the bad faith
as alleged.

The present case is also highly distinguishable
from the cases where the taxpayer has alleged that the
“bad faith” purpose for the issuance and service of the
summons was to gather evidence to criminally prosecute
the taxpayer. See, e.g., United States v. LaSalle, supra.

‘The government relying upon the decision of United States
v. Harris, 628 F.2d 875 (5th Cir. 1975) agreed that an evidentiary
hearing was required. United States vu. Harris, supra, analyzed in
depth Reisman v. Caplin and United States v. Powell, concluding
that the right to an adversary (evidentiary) hearing to a taxpayer
who alleges an abuse of the court's process or a purpose not
authorized by Section 7602 of the Code, must be granted.

‘Compare, United States v. Southeast First National Bank of
Miami Springs, supra, 655 F.2d 661 (5th Cir. 1981), where the
Court determined an allegation of “bad faith” was sufficient with
United States v. Morgan Guaranty Trust Co., 572 F.2d 36 (2d Cir.
1978) where the Court required affidavits setting forth facts
supporting the allegations of bad faith.

"See cases cited at page 7, supra.

10

Petitioners do not allege such purpose but that the
purpose was to disclose taxpayers’ records to a third
party and therefore, was not authorized by Sections
7602 and 7609 of the Code. Under similar circumstances
where taxpayers alleged, supported by affidavits, that
the purpose for the issuance and service of the summonses
was to close down the taxpayer's business, who were
tax shelter promoters, the Court of Appeals relying
upon Reisman v. Caplin, and its progeny, held that the
adversary (evidentiary) hearing requested by taxpayers
should be granted. United States 1. Samuels, Kramer
& Co., 712 F.2d 1342, (9th Cir. 1983). The taxpayers in
the present case have similarly alleged that the records
to be disclosed to the third par.y, Permac, are to be
used by Permac in its state court litigation and to
destroy Petitioners, and their fledgling competitive
business enterprise. Congress has very clearly spoken
on the question of disclosing taxpayer records to
unauthorized persons and clearly prohibited such
disclosure.”

It would indeed be an anomaly in the law that the
Petitioners should have a right to an adversary
(evidentiary) hearing to prove the “bad faith” as alleged
and yet be denied that right because the summoned
records were turned over to the IRS and the Court of
Appeals dismiss the case as moot. The right to such a
hearing will indeed be meaningless because Petitioners
would be left without any remedy to prevent the alleged
abuse of the Court’s process or to prove the alleged

‘Section 7213 of the Code, Unauthorized disclosure of information,
26 U.S.C. §7213, and Section 6103 of the Code, Confidentiality and
disclosure of returns and return information, 26 U.S.C. §6103,
both prohibit disclosures of taxpayer records to any unauthorized
person.

11

abuse of the Court’s process or to prove the alleged
violation of Sections 7602 and 7609 of the Code. See
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

B. Conflict Existing Among The Courts Of
Appeal.

As pointed out above, all Courts of Appeal, save
the Eleventh Circuit, have consistently held that Reisman
v. Caplin and its progeny mandate that an adversary
hearing must be given to a taxpayer who properly
alleges in an IRS summons enforcement proceeding
“bad faith”, that the summons was issued for a purpose
not authorized by Section 7602 or whose enforcement
would be an abuse of the court’s process. (See, cases
cited at page 7, supra). Though the Courts of Appeal
have not uniformly agreed upon the extent and scope
of the Reisman-Powell-LaSalle mandated adversary
hearing, all have concurred that some form of adversary
hearing is required.

The conflict between the decisions of the First,
Second, Third, Fifth and Ninth Circuits with the decision
of the Court in the case at bar is patent. Petitioners
sought an adversary (evidentiary) hearing before the
United States District Court for the Southern District
of Florida properly pleading “bad faith” supported by
affidavits. Such adversary hearing was denied and
Petitioners never had an opportunity to present any
evidence, examine the investigating agent or any other
institutional representative of the IRS. Despite timely
Motions to Stay filed with the trial court and the Eleventh
Circuit, a stay pending appeal was denied. The eleventh
Circuit dismissed the appeal as “moot” upon a Motion
to Dismiss for mootness filed by the government, opposed

12

by Petitioners, after the IRS obtained the summoned
records.

Because of the clear conflict existing between the
Courts of Appeal granting to taxpayers a Reisman-
Powell-LaSalle adversary hearing and the case at bar
where such adversary hearing was denied, certiorari
should be granted. To do otherwise would render the
right to such adversary hearing illusory and forever
preclude Petitioners from having an opportunity to
prove the “bad faith” purpose for the service of the
summonses.

C. The Denial Of The Right To An Adversary
Hearing To Petitioners Is A Denial Of Due
Process Of Law As Required By The Fifth
Amendment To The United States
Constitution

The right of a taxpayer to an adversary hearing in
an IRS summons enforcement proceeding recognized
by Reisman v. Caplin and consistently adhered to by
this Court is a recognition of the basic right of an
opportunity to be heard. The right to be heard is a
fundamental] requirement of due process of law. Grannis
v. Ordean, 234 U.S. 385, 394 (1914); Goldberg vu. Kelley,
397 U.S. 254, 268 (1970). Any such hearing in order to
comport with due process must be “at a meaningful
time and in a meaningful manner”. Armstrong v. Monzo,
380 U.S. 545, 552 (1965). This right, in the context of an
adversary hearing where questions of fact are to be
determined by the trier of fact, must also include an
opportunity to confront and cross-examine witnesses.
Wilner v. Committee on Character & Fitness, 373 U.S.

13

96, 103-104 (1963); Greene vu. McElroy, 360 U.S. 474, 496
(1959).

Congress, in furtherance of the Reisman-Powell-
LaSalle trilogy reserved to Taxpayers an adversary
hearing, by enacting Section 7609 of the Code which
grants to taxpayers the right to intervene in summons
enforcement proceedings and step into the shoes of a
third-party recordkeeper. Disturbed by the Court’s
decision in United States v. Donaldson, 400 U.S. 517
(1971) wherein the Court held that the right to intervene
required that the taxpayer have a proprietary interest
in the books and records summoned, Congress eliminated
such requirement granting automatic intervention.’
Congress therefore engrafted automatic standing upon
an already existing right to an adversary hearing
mandated by this Court in Reisman, Powell and LaSalle.

In United States v. Southeast First National Bank
of Miami Springs, 655 F.2d 661, 665 (5th Cir. 1981) the
Court discussed at length the right to the Reisman-
Powell-LuSalle mandated adversary hearing. Te Court
refused to accede to the government's challenge to
that right where a taxpayer had only generally alleged
“bad faith”. The Court recognized that it would be
impossible for a taxpayer to allege precise facts or
support such allegations with an affidavit because in
most cases a taxpayer could only obtain those facts
through an adversary hearing. The taxpayer would not
be saddled with a “Catch 22” requirement of having to

*See, 4 U.S. Code Cong. & Admin. News, 3302-3308, 3205,
wherein the Joint Committee specifically stated Section 7609 was
designed to permit taxpayers as intervenors to stand in the shoes
of third party record keepers and assert any defense available to
them.

14

plead facts where the only forum the taxpayer had to
obtain those facts was an adversary hearing before the
Court. Stated differently, the Court simply recognized
that fundamental fairness and due process of law required
that a taxpayer be granted an adversary hearing.

The words “adversary hearing” mandated by
Reisman, Powell and LaSalle at a minimum means at
least an opportunity to examine the agent who issued
the summonses and determine his motives.” It is obvious
to any lawyer who has ever tried a case that due
process requires more than trial by affidavits once any
dispute of material fact is in issue or such allegations
and affidavits infer a possibility that “bad faith” is an
issue. The Reisman-Powell-LaSalle mandated adversary
hearing requires at a minimum that a taxpayer be
given the opportunity to examine the investigating
agent of the IRS and present evidence and witnesses in
support of the taxpayer’s position.

LaSalle made clear that in order to enforce an IRS
summons, several requirements must be met. First,
the summons must be issued before the IRS recommends
criminal prosecution to the Department of Justice. Second,

“the Service at all times material must use
the summons authority in good faith pursuit
of the congressionally authorized purposes of

“United States v. LaSalle, 437 U.S. 313, 316-18 (1978). See,
notes 17, 18 and 19, wherein the Court acknowledged examination
of the investigating agent may be necessary and further opined
that Powell was not an exclusive pronouncement on the “bad
faith” purposes for which a Court would grant relief in an IRS
Summons Enforcement proceeding.

-

15

§7602. This second requirement requires the
Service to meet the Powell standards of good
faith”. 437 U.S. at 317.

Where taxpayers such as Petitioners place that
question of “good faith’ in issue with appropriate
responses supported by affidavits, an adversary hearing
and opportunity to be heard is a basic requirement of
due process of law.

The federal district court and the Eleventh Circuit
erred in refusing to grant Petitioners an evidentiary
hearing. It would be a pernicious precedent to permit
any court to deny to Petitioners an adversary hearing
to which they are entitled and permit a case such as
this to be dismissed as “moot”. Due process of law
requires that the Reisman-Powell-LaSalle mandated
adversary hearing be granted to the Petitioners.

D. This Case Is Not Rendered Moot Because
The IRS Obtained The Records Summoned
Where There Is A Reasonable Expectation
That The Wrong Will Be Repeated, The
Acts Alleged By Petitioners Are Capable
Of Repition Yet Will Evade Review And An
Abuse Of The Court’s Process Is Not Rendered
Moot Because The Summoned Records Are
Obtained.

Petitioners were entitled to a Reisman-Powell-LaSalle
mandated adversary hearing. Upon not being granted
such adversary hearing Petitioners sought a stay first
from the federal district court and then from the Eleventh
Circuit. Both Motions for Stay pending appeal were
denied.

16

There is currently pending in the United States
Court of Appeals for the Second Circuit a case concerning
the same parties arising out of an IRS summons
enforcement proceeding in the United States District
Court for the Eastern District of New York.” Petitioners
(Appellants) in that case have alleged the same facts as
were alleged in the case at bar; to wit, that the summonses
were issued for a “bad faith” purpose not authorized
by Sections 7602 and 7609 of the Code and the enforcement
of same would be an abuse of the Court’s process. The
district court in that case denied to Petitioners the
right to an adversary hearing, but the Court of Appeals
for the Second Circuit stayed enforcement pursuant to
a stipulation of the parties.”

This Court has held that where a case concerns
acts which are “capable of repetition, yet evading review”
the case will not be rendered moot because the act
sought to be reviewed has been consummated. Southern
Pacific Terminal Co. v. Interstate Commerce Commission,
219 U.S. 498, 515 (1911). In Weinstein v. Bradford, 423
US. 147, 149 (1975) the Court announced general principles
for application of the doctrine and stated:

“{I]n the absence of a class action, the ‘capable
of repetition, yet evading review’ doctrine was
limited to the situation where two elements

“Harvey and Bonnie Kleinman v. United States of America,
Case No. 83-6265.

"In that case, 83-6265, pending before the Second Circuit,
enforcement of some thirteen summonses served upon banks,
savings and loans and one stock brokerage firm are stayed.

17

combined: (1) the challenged action was in its
duration too short to be fully litigated prior to
its cessation or expiration, and (2) there was a
reasonable expectation that the same
complaining party would be subjected to the
same action again.”

Because a stay was denied by both the federal district
court and the Eleventh Circuit and no adversary hearing
granted, the action challenged (enforcement of the
summonses) was never litigated. Moreover, because
there is now pending in the Second Circuit an appeal
which has for the present been stayed and in which the
Petitioners as the complaining party have alleged the
identical “bad faith” motive for the issuance of the IRS
summonses, there is a reasonable expectation that
Petitioner would be subjected to the same action again,
to wit, enforcement of the summonses without an
adversary hearing."

There are also “collateral consequences” in the
case at bar to the Petitioners so that they have a
personal stake in the outcome of the case. If Petitioners’
contentions are true, that a private third party will
obtain taxpayer's records, the injury to Petitioners
extends beyond the IRS obtaining such records. The
disclosure of such records to a private third party is a

“Oral argument under an expedited appeal procedure is now
scheduled before the Second Circuit on October 14, 1983.

18

real and immediate injury so that Petitioners have a
personal stake in the outcome of the case.”

Finally, Reisman, Powell and LaSalle made it
abundantly clear that the enforcement of an IRS summons
for a purpose not authorized by Section 7602 of the
Code or where said summons was served in “bad faith”
would be an abuse of the court’s process. Even though
the IRS has obtained records summoned, this would
not ameliorate nor render moot such an abuse of the
court's process. If, as alleged and supported by affidavits,
the IRS has entered into an unholy alliance with Permac
agreeing to disclose those records to Permac, the use
of a federal district court and United States Court of
Appeals for such purpose would clearly abuse the process
of both Courts. Federal courts have a broad and inherent
power “over their own process, to prevent abuses,
oppression and injustice”. Gumbel v. Pitkin, 124 US.
131, 144 (1888); Ownbey vu. Morgan, 256 U.S. 94, 110
(1921); See, also, Roadway Express, v. Piper, 100 S.Ct.
2455 (1980).

The case at bar is clearly not one in which the “no
harm, no foul” cliche may be applied. The harm both to
the court and the Petitioners is real, immediate and of
a continuing nature. An abuse of the court’s process as
alleged by Petitioners is not rendered moot merely
because the IRS obtained the summoned records.

“See, e.g., Sibron v. New York, 392 U.S. 40, 50-58 (1968) and
North Carolina v. Rice, 404 U.S. 244 (1971) where a criminal
conviction was not rendered moot because a prison term had been
served where the conviction affected the person's ability to vote,
hold public office or be a juror. Similarly, enforcement of the
summonses means to Petitioners that records in which they have
a proprietory interest will be disclosed to a private third party
without their consent or approval.

19

CONCLUSION

The right to an adversary hearing in an IRS summons
enforcement proceeding, where a taxpayer properly
alleges “bad faith” is mandated by this Court’s decisions
in Reisman, Powell and LaSalle. The right to such
hearing is simply the right to be heard, a fundamental
requirement of due process of law.

Therefore, the Petition for Writ of Certiorari to
the United States Court of Appeals, Eleventh Circuit
should be granted.

Respectfully submitted,

ROBERT A. SHUPACK
ROBERT A. SHUPACK, P.A.
Attorney for Petitioners

2434 Hollywood Boulevard
Hollywood, F lorida 33020
(305) 922-2889

20

Appendix

[FILED AUG 17 1983}

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 83-5357

UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent, IRS,
Plaintiffs-A ppellees,

VveTsSus

BANK OF CORAL SPRINGS,
Defendant,

HARVEY S. KLEINMAN and
BONNIE M. KLEINMAN,
Intervenors-A ppellants.

Appeal from the United States District Court
for the Southern District of Florida

Before HILL, KRAVITCH and CLARK, Circuit
Judges.

BY THE COURT:

The Motion of appellee(s) to dismiss the appeal as
moot is granted.

A-l

[FILED 1983 APR 25]

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

CIVIL NO. 83-6020-CIV-NCR

UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent
INTERNAL REVENUE SERVICE,

Petitioners,

Vv.

BANK OF CORAL SPRINGS,
Respondent.

CIVIL NO. 83-6021-CIV-NCR
UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent
INTERNAL REVENUE SERVICE,

Vv.

BANK OF CORAL SPRINGS,
Respondent.

B-1

CIVIL NO. 83-6022-CIV-NCR

UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent
INTERNAL REVENUE SERVICE

Vv.

BROWARD FEDERAL SAVINGS AND LOAN,
Respondent.

CIVIL NO. 83-6023-CIV-NCR

UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent,
INTERNAL REVENUE SERVICE,

Vv.

BROWARD FEDERAL SAVINGS AND LOAN,
Respondent.

In the Matter of the
Tax Liability of
HARVEY S. KLEINMAN.

ENFORCEMENT ORDER AND JUDGMENT

This consolidated matter having come on for hearing
before the undersigned on April 22, 1983, pursuant to
the Court's Order to show cause, the parties having
appeared and been heard, the Court having reviewed
the submissions of the parties and being fully aware in
the premises and it appearing that each of the summonses
issued by the petitioner, Special Agent Eugene Brozen,

B-2

to the respondent, Bank of Coral Springs, on January
8, 1982 and April 12, 1982, and to the respondent,
Broward Federal Savings and Loan, on January 8, 1982
and April 12, 1982, (1) was issued for a legitimate purpose,
that is, the investigation of the correct federal income
tax liabilities and returns of Harvey S. Kleinman for
the years 1977, 1978, 1979 and 1980, (2) that the summoned
testimony and date may be relevant to that determination,
(3) that the books, records, papers and other data sought
are not already in the possession of the Internal Revenue
Service, and (4) that the administrative steps required
by the Internal Revenue Code have been followed, it is
therefore

ORDERED, ADJUDGED AND DECREED that
the intervening taxpayer’s Motions to Dismiss or for
Judgment on the Pleadings, to Strike, for Evidentiary
Hearing and to Take Oral Examination at Trial of Special
Agent Brozen, and to Strike Petition to Enforce Summons
or, in the alternative, to Quash Summons are each
denied, and it is further

ORDERED, ADJUDGED and DECREED that the
respondent, Bank of Coral Springs, appear before Special
Agent Eugene Brozen, or any other proper official of
the Internal Revenue Service at a time, date and place
as shall be specified by Special Agent Brozen or other
proper official of the Internal Revenue Service, then
and there to be sworn, to give testimony, and to produce
for examination and copying the books, records, papers
and other data demanded by the summonses served
upon it on January 8, 1982 and April 12, 1982, the
examination to continue from day to day until completed,
and it is further

B-3

ORDER, ADJUDGED and DECREED that the
respondent, Broward Federal Savings and Loan, appear
before Special Agent Eugen Broze, or any other proper
official of the Internal Revenue Service at a time, date
and place as shall be specified by Special Agent Brozen
or other proper official of the Internal Revenue Service,
then and there to be sworn, to give testimony, and to
produce for examination and copying the books, records,
papers and other data demanded by the summonses
served upon it on January 8, 1982 and April 12, 1982,
the examination to continue from day to day until
completed.

DATED this 23 day of April, 1983, at Fort
Lauderdale, Florida.

Norman C. Roettger
UNITED STATES DISTRICT JUDGE

ce: United States Attorney
Attn: Lloyd G. Bates
Assistant U.S. Attorney

Alvarez L. LeCesne, Jr.
Trial Attorney, Dept. of Justice

Robert A. Shupack
Counsel for Harvey S. Kleinman

Bank of Coral Gables

Broward Federal Savings and Loan

B-4

AMENDMENT V,
CONSTITUTION OF THE UNITED STATES

“No person shall be held to answer for a capital or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in
the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor
be deprived of life, liberty or property, without due
process of law; nor shall private property be taken for
public use without just compensation.”

TITLE 26, UNITED STATES CODE
§7602. Examination of books and witnesses.

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 o. any
transferee or fiduciary of any person in respect of any
internal revenue tax, or collecting any such liability,
the Secretary is authorized —

(1) To examine any books, papers, records, or other
data which may be relevant or material to such inquiry;

(2) Tosummon the person liable for tax or required to
perform the act, or any officer or employee of such
person, or any person having possession, custody, or
care of books of account containing entries relating to
the business of the person liable for tax or required to

C-i

perform the act, or any other person the Secretary
may deem proper, to appear before the Secretary at a
time and place named in the summons and to produce
such books, papers, records, or other data, and to give
such testimony, under oath, as may be relevant or
material to such inquiry; and

(3) To take such testimony of the person concerned,
under oath, as may be relevant or material to such
inquiry.

TITLE 26, UNITED STATES CODE
§7609. Special procedures for third-party summonses.
(a) Notice.
(1) In general, If—

(A) any summons described in subsection (c) is
served on any person who is a third-party
recordkeeper, and (B) the summons requires
the production of any portion of records made
or kept of the business transactions or affairs
of any person (other than the person summoned)
who is identified in the description of the records
contained in the summons,

then notice of the summons shall be given to any
person so identified within 3 days of the day on which
such service is made, but no later than the 14th day
before the day fixed in the summons as the day upon
which such records are to be examined. Such notice
shall be accompanied by a copy of the summons which

C-2

has been served and shall contain directions for staying
compliance with the summons under subsection (b})(2).

(2) Sufficiency of notice. Such notice shall be
sufficient if, on or before such third day, 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.
If such notice is mailed, it shall be sufficient if mailed to
the last known address of the person entitled to notice
or, in the case of notice to the Secretary under section
6903 of the existence of a fiduciary relationship, to the
last known address of the fiduciary of such person,
even if such person or fiduciary is then deceased, under a
legal disability, or no longer in existence.

(3) Third-party recordkeeper defined. For
purposes of this subsection the term “third-party
recordkeeper” means —

(A) any mutual savings bank, cooperative bank,
domestic building and loan association, or other
savings institution chartered and supervised
as a savings and loan or similar association
under Federal or State law, any bank (as defined
in section 581), or any credit union (within the
meaning of section 501(¢c14)(A);

(B) any consumer reporting agency (as defined

under section 602(d) of the Fair Credit Reporting
Act (15 U.S.C. 1681a(f);

C-3

(C) any person extending credit through the
use of credit cards or similar devices;

(D) any broker (as defined in section 3(a)(4) of
the Securities Exchange Act of 1934 (15 U.S.C.
78C(a\4)

(E) any attorney; and
(F) any accountant.

(4) Exceptions. Paragraph (1) shall not apply to
any summons —

(A) served on the person with respect to whose
liability the summons is issued, or any officer
or employer of such person.

(B) to determine whether or not records of
the business transactions or affairs of an
identified person have been made or kept, or

(C) described in subsection (f).

(5) Nature of summons. Any summons to which
this subsection applies (and any summons in aid of
collection described in subsection (c\2\B) shall identify
the taxpayer to whom the summons relates or the
other person to whom the records pertain and shall
provide such other information as will enable the person
summoned to locate the records required under the
summons.

(b) Right to intervene; right to stay compliance.

C-4

(1) Intervention. Notwithstanding any other law
or rule of law, any person who is entitled to notice of a
summons under subsection (a) shall have the right to
intervene in any proceeding with respect to the
enforcement of such summons under section 7604.

(2) Right to stay compliance. Notwithstanding
any other law or rule of law, any person who is entitled
to notice of a summons under subsection (a) shall have
the right to stay compliance with the summons if, not
later than the 14th day after the day such notice is
given in the manner provided in subsection (a\(2)—

(A) notice in writing is given to the person
summoned not to comply with the summons,
and

(B) a copy of such notice not to comply with
the summons is mailed by registered or certified
mail to such person and to such office as the
Secretary may direct in the notice referred to
in subsection (a)(1).

(ec) Summons to which section applies.

(1) In general. Except as provided in paragraph
(2), a summons is described in this subsection if it is
issued under paragraph (2) of section 7602 or under
section 6420(e\(2), 6421(f)

(2), 6424 (dX2) or 6427(fX2) [(6427(gX2)] and requires
the production of records.

(2) Exceptions. A summons shall not be treated
as described in this subsection if—

C-5

(A) it is solely to determine the identity of
any person having a numbered account (or
similar arrangement) with a bank or other
institution described in subsection (a\(3\A, or

(B) itis in aid of the collection of —

(i) the liability of any person against whom
an assessment has been made or judgment
rendered, or

(ii) the liability at law or in equity of any
transferee or fiduciary of any person referred
to in clause (i).

(3) Records; certain related testimony. For purposes
of this section—

(A) the term “records” includes books, papers
or other data, and

(B) a summons requiring the giving of
testimony relating to records shall] be treated
as a summons requiring the production of such
records.

(d) Restriction on examination of records. No
examination of any records required to be produced
under a summons as to which notice is required under
subsection(a) may be made —

(1) before the expiration of the 14 day period

allowed for the notice not to comply under subsection
(b\(2), or

C4

(2) when the requirements of subsection (bX2) have
been met, except in accordance with an order issued by
a court of competent jurisdiction authorizing examination
of such records or with the consent of the person staying
compliance.

(e) Suspension of statute of limitations. If any person
takes any action as provided in subsection (b) and such
person is the person with respect to whose liability the
summons is issued (or is the agent, nominee, or other
person acting under the direction or control of such
person) then the running of any period of limitations
under section 6501 (relating to the assessment and
collection of tax) or under section 6531 (relating to
criminal prosecutions) with respect to such person shall
be suspended for the period during which a proceeding,
and appeals therein, with respect to the enforcement
of such summons is pending.

(f) Additional requirement in the case of a John Doe
summons. Any summons described in subsection (c)
which does not identify the person with respect to
whose liability the summons is issued may be served,
only after a court proceeding in which the Secretary
establishes that —

(1) the summons relates to the investigation of a
particular person or ascertainable group or class of
persons,

(2) there is a reasonable basis for believing that
such person or group or class of persons may fail or
may have failed to comply with any provision of any
internal revenue law, and

C-7

(3) the information sought to be obtained from
the examination of the records (and the identity of the
person or persons with respect to whose liability the
summons is issued) is not readily available from other
sources.

(g) Special exception for certain summonses. In the
case of any summons described in subsection (c), the
provision of subsections (a) (1) and (b) shall not apply if,
upon petition by the Secretary, the Court determines,
on the basis of facts and circumstances alleged, that
there is reasonable cause to believe the giving of notice
may lead to attempts to conceal, destroy, or alter records
relevant to the examination, to prevent the communication
of information from other persons through intimidation,
bribery, or collusion or to flee to avoid prosecution,
testifying or production of records.

(h) Jurisdiction of district court.

(1) The United States District Court for the district
within which person to be summoned resides or is
found shall have jurisdiction to hear and determine
proceedings brought under subsections (f) or

(g) The determinations required to be made under
subsections (f) and (g) shall be made ex parte and shall
be made solely upon the petition and supporting affidavits.
An order denying the petition shall be deemed a final
order which may be appealed.

(2) Except as to cases the court considers of greater

importance a proceeding brought for the enforcement
of any summons, or a proceeding under this section,

C-8

and appeals, take precedence on the docket over all
cases and shal] be assigned for hearing and decided at
the earliest practicable date.

C-9

[FILED 1983 APR 25]

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA

CIVIE NO>83-6020-CIV-NCR

UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent
INTERNAL REVENUE SERVICE,

Petitioners,

v.

BANK OF CORAL SPRINGS,
Respondent.

CIVIL NO. 83-6021-CIV-NCR
UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent
INTERNAL REVENUE SERVICE,

Vv.

BANK OF CORAL SPRINGS,
Respondent.

D-1

CIVIL NO. 83-6022-CIV-NCR

UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent
INTERNAL REVENUE SERVICE,

Vv.

BROWARD FEDERAL SAVINGS AND LOAN,
Respondent.

CIVIL NO. 83-6023-CIV-NCR

UNITED STATES OF AMERICA and
EUGENE BROZEN, Special Agent
INTERNAL REVENUE SERVICE,

Vv.

BROWARD FEDERAL SAVINGS AND LOAN,
Respondent.

In the Matter of the

Tax Liability of
HARVEY S. KLEINMAN.

D-2

ORDER DENYING MOTION FOR STAY
PENDING APPEAL

Counsel for intervening taxpayers, at the hearing
before the undersigned on April 22, 1983, having orally
moved this Court for a stay of the order entered by
this Court enforcing each of the summonses issued in
the above consolidated matter, the parties having been
heard, the Court being fully aware in the premises, and
it appearing that there is no grounds justifying the
motion for stay pending appeal, it is therefore

ORDERED, ADJUDGED and DECREED that the
motion be and is denied.

DATED this 23 day of April, 1983, at Fort
Lauderdale, Florida.

[Illegible]
United States District Judge

cc: United States Attorney
Attn: Lloyd G. Bates
Assistant U.S. Attorney

Alvarez L. LeCesne, Jr.
Trial Attorney, Dept. of Justice

Robert A. Shupach
Counsel for Harvey S. Kleinman

Bank of Cora! Gables

Broward Federal Savings and Loan

D-3

[FILED APR 25 1983]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

83-6021-Civ-NCR
83-6020-Civ-NCR
§3-6022-Civ-NCR
83-5279 Civ-NCR
83-6023-Civ-NCR

UNITED STATES OF AMERICA,
Petitioner-A ppellee,

versus

BANK OF CORAL SPRINGS and
BROWARD FEDERAL SAVINGS & LOAN,
Respondents,

HARVEY S. KLEINMAN and
BONNIE M. KLEINMAN,
Intervenors-A ppellants.

Appeal from the United States District Court for the
Southern District of Florida

Before TJOFLAT, JOHNSON and HATCHETT, Circuit
Judges.

BY THE COURT:

The Motion of appellant(s) for stay pending appeal
is DENIED.

E-1

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0809%3A1. Public record. Not legal advice.