here - Fuerst Ittleman David & Joseph, PL

Case: 11-1612 Document: 003110561288 Page: 36 Date Filed: 06/13/2011
in good faith pursuant to one of the powers granted under 26 U.S.C. § 7602.‖
Memo. Op. at 9 (Doc. # 25; A-000017) quoting United States v. Rockwell Int'l, 897
F.2d 1255, 1262 (3d Cir. 1990).
However, the District Court erred in concluding that there is no evidence of
institutional bad faith when it misinterpreted this Court‘s holding in Pickel, supra.
As the District Court stated:
In considering bad faith under Powell, the Third Circuit has instructed
that ‗where the taxpayer can prove that the summons is issued solely
to harass him, or to force him to settle a collateral dispute, or that the
IRS is acting solely as an information-gathering agency for other
departments, such as the Department of Justice, or the FBI, the
summons will be unenforceable because of the IRS‘s bad faith.‘
Memo. Op. at 8-9, (Doc. # 25; A-000016-17) quoting Pickel, supra.
While this quote is not incorrect, it is incomplete. The full quote from this
Court‘s decision in Pickel is:
We do not doubt that portions of the Powell and LaSalle discussions
of bad faith retain vitality and that where the taxpayer can prove that
the summons is issued solely to harass him, or to force him to settle a
collateral dispute, Powell, 379 U.S. at 58, or that the IRS is acting
solely as an information-gathering agency for other departments, such
as the Department of Justice, LaSalle, 437 U.S. at 317, or the FBI, the
summons will be unenforceable because of the IRS's bad faith.
Pickel, supra at 185.
The District Court‘s memorandum opinion fails to include the citation to
both Powell and LaSalle. By reading the passage from the Pickel decision without
FUERST ITTLEMAN, PL
1001 BRICKELL BAY DRIVE, 32 ND FLOOR, MIAMI, FL 33131 • T: 305.350.5690 • F: 305.371.8989 • WWW.FUERSTLAW.COM
28 | P a g e