here - Fuerst Ittleman David & Joseph, PL

Case: 11-1612 Document: 003110561288 Page: 26 Date Filed: 06/13/2011
that an ‗appropriate ground‘ for challenging the summons exists
when the taxpayer disproves one of the four elements of the
government‘s Powell showing, or otherwise demonstrates that
enforcement of the summons will result in an abuse of the court‘s
process.‖ [United States v.] Rockwell, 897 F.2d [1255] at 1262 [3d
Cir. 1990] (citations omitted).
(emphasis added). Mem. Op. at 3-4; Doc. # 25; A-000011-12.
Examples of an abuse of the court's process include, but the Appellant
submits are not limited to, when IRS third-party summons are issued ―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
(emphasis added).‖ Pickel v. United States, 746 F.2d 176, 184 fn. 11 (3d Cir. 1984)
citing to Powell, supra at 58. In order to succeed on an abuse of process claim, a
taxpayer must show bad faith by the IRS as an institution, not just an individual
agent. United States v. LaSalle National Bank, 437 U.S. 298, 316 (1978).
In what appears to be a matter of first impression is the question of whether
unconstitutional conduct on the part of the IRS, when demonstrated by a taxpayer,
qualifies as demonstrating that the enforcement of an IRS summons would be an
abuse of the District Court‘s process. Appellant submits that it would be, and the
District Court erred in enforcing the subject IRS summonses. Appellant also
submits that institutional bad faith exists in the instant case, and it was error for the
District Court to refuse to quash said IRS summonses.
FUERST ITTLEMAN, PL
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