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United States v. Robert A. Leventhal, Personally and in His Representative Capacity As Partner/officer of Leventhal & Slaughter, P.A., 961 F.2d 936, 11th Cir. (1992)
United States v. Robert A. Leventhal, Personally and in His Representative Capacity As Partner/officer of Leventhal & Slaughter, P.A., 961 F.2d 936, 11th Cir. (1992)
2d 936
70 A.F.T.R.2d 92-5001, 60 USLW 2794,
92-1 USTC P 50,287
The Government appeals from an order of the United States District Court for
the Middle District of Florida instructing Robert A. Leventhal, an attorney, to
provide the Internal Revenue Service (IRS) with some, but not all, of the
information specified in an IRS summons. The IRS had issued the summons to
obtain certain information necessary for the completion and verification of two
(2) who, in the course of such trade or business, receives more than $10,000 in
cash in 1 transaction ...,
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shall
make the return described in subsection (b) with respect to such transaction ...
at such time as ... [IRS] regulations prescribe.
8(b) Form and manner of returns
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(2) contains--
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(A) the name, address, and [social security number or tax identification
number] of the person from whom the cash was received,
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Form 8300 is divided into three Parts. Part I requires disclosure of information
identifying the individual from whom the cash payment was received. Part II
requires disclosure, if applicable, of facts identifying an agent conducting the
cash transaction on behalf of the individual identified in Part I.2 Part III requires
disclosure of the nature of the transaction.3
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On May 13, 1988, Leventhal filed a Form 8300 listing a cash receipt of $20,000
on April 5, 1988. On May 5, 1989, Leventhal filed a second Form 8300 listing
a cash receipt of $10,000 on April 14, 1989. Neither form, however, disclosed
the information required in Parts I and II. In Part III of the first Form 8300,
Leventhal provided the following information:
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Monies
received for privileged legal advice rendered to clients for clients' past
activities. Clients are currently under indictment for violation of [21 U.S.C. 846
(1988) ]. Revealing the information called for in Parts I and II of this form is likely
to result in a violation of the attorney/client privilege.4
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In Part III of the second Form 8300, Leventhal recited the same paragraph,
except that this time around he referred to an indictment under Fla.Stat. ch.
893.135(1)(b)3. (1989) rather than under 21 U.S.C. 846.5
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On March 12, 1991, the district court issued an order directing Leventhal to
provide only the names of the parties making the cash payments listed in the
two Forms 8300. The court did not explain why Leventhal was not required to
release the rest of the information requested in the IRS summons, including,
On March 26, 1991, the Government moved the district court to amend its
order in two respects. In its motion, the Government sought full enforcement of
the summons and requested that the court delete from its prior order the
statement condoning Leventhal's refusal to comply with the summons absent a
court order. The district court denied the motion, and the Government
appealed.
II.
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27 IRS can satisfy [its] burden merely by presenting the sworn affidavit of the
[t]he
agent who issued the summons attesting to these facts[;] the burden [then] shifts to
the party contesting the summons to disprove one of the four elements of the
government's prima facie showing or convince the court that enforcement of the
summons would constitute an abuse of the court's process.
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La Mura v. United States, 765 F.2d 974, 979 (11th Cir.1985) (citations
omitted); see also Liberty Financial Services v. United States, 778 F.2d 1390,
1392 (9th Cir.1985). The burden on the contesting party is "a heavy one,"
United States v. Balanced Financial Management, Inc., 769 F.2d 1440, 1444
(10th Cir.1985), requiring allegation of specific facts and introduction of
evidence. Liberty Financial, 778 F.2d at 1392; United States v. Samuels,
Kramer & Co., 712 F.2d 1342, 1347-48 (9th Cir.1983).
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In the case before us, the IRS attached to its enforcement petition the affidavit
of Agent Bessent, who attested to the IRS' compliance with all four elements of
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confidential."10 Id. at 1043 (quoting Rabin v. United States, 896 F.2d 1267,
1273 (11th Cir.), vacated 896 F.2d 1283, dismissed on other grounds, 904 F.2d
1498 (1990)).
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Likewise, disclosure of the nature of the transactions under Part III would not
have thwarted a reasonable expectation of confidentiality on the part of
Leventhal's clients. As the Second Circuit noted in Goldberger, "Section
[6050I] does not preclude would-be clients from using their own funds to hire
whomever they choose. To avoid disclosure under section [6050I], they need
only pay counsel in some other manner than with cash. The choice is theirs."
Goldberger, 935 F.2d at 504.
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For the reasons stated above, we VACATE the district court's order and
REMAND this case with the instruction that the district court enter an order
enforcing the IRS summons in toto.13
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IT IS SO ORDERED.
Parts I and II require the recipient of the cash payment to disclose all of the
following facts, where applicable, pertaining to both the individual from whom
the cash is received and the individual's agent: the individual's full name, social
security number, passport number and country of issuance, and alien
registration number; the organization with which the individual is affiliated; the
organization's employer identification number; the organization's business or
occupation; and an address for either the individual or organization
Part III lists the following options for describing the nature of the transaction:
personal property purchased, real property purchased, personal services
provided, business services provided, intangible property purchased, debt
obligation paid, exchange of cash, escrow of trust funds, or other (specify)
The complete names, addresses and taxpayer identification numbers of any and
all individuals conducting the reported transactions, if different from the
information in item number 1
The passport numbers and countries of origin and/or alien registration numbers
and countries of origin for all foreign individuals or organizations who
conducted the transactions or for whom the transactions were completed
Any other identifying data for the individuals or organizations who conducted
the transactions or for whom the transactions were conducted
attempted to obtain the consent of both clients. One of the clients was dead,
however, and the other could not be reached
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See United States v. Bisceglia, 420 U.S. 141, 146, 95 S.Ct. 915, 919, 43
L.Ed.2d 88 (1975) ("The purpose of [the IRS's summons power] is not to
accuse, but to inquire.")
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Our conclusion that Leventhal was not in any danger of violating the attorneyclient privilege should leave no doubt that we disagree with the district court's
approval of Leventhal's refusal to comply with the IRS summons absent a court
order