United States v. Battle

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
January 10, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 06-20466
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT M. BATTLE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:05-MC-00520)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
For this pro se appeal from the district court’s enforcement
of two Internal Revenue Service summonses, Dr. Robert M. Battle
asserts they were invalid and unenforceable. He also contends the
district court exceeded its authority by holding him in civil
contempt for not complying with the enforcement order.
Dr. Battle, a licensed physician, practices in Houston, Texas.
In July 2005, the IRS served him summonses alleging: (1) for the
taxable years 1994 through 1998, Dr. Battle filed invalid returns,

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as a result of which the IRS determined and assessed liabilities
exceeding $600,000; and (2) for the taxable years 1999 through
2004, Dr. Battle failed to file any returns. Dr. Battle appeared
in response to these summonses but failed to produce the required
information.
The IRS petitioned the district court for enforcement of the
summonses. A hearing was scheduled for 6 January 2006. Prior to
the hearing, Dr. Battle filed a number of challenges to the
validity of the summonses. At the hearing, Dr. Battle: (1)
disputed the IRS’ calculation of the assessed amounts for 1994
through 1998 and claimed he was in the process of preparing returns
in support of that dispute; and (2) stated he was in the process of
preparing returns for the years 1999 through 2004.
The district court ordered Dr. Battle to return on 20 January
2006 with an accountant or attorney to articulate his challenges to
the summonses and provide the requested information. The court
suggested that, as a good-faith measure, Dr. Battle pay 70% of the
liabilities assessed against him. (Dr. Battle challenged the
voluntary payment aspect of the order with a petition for writ of
mandamus, asking our court to prohibit the district court from
enforcing the order; the order was improperly filed and was not
received by our court.)
On 20 January 2006, Dr. Battle appeared in district court with
an accountant, but without any documentation related to the 1994-

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1998 assessment. The district court entered an enforcement order
and required Dr. Battle to appear later that day with the required
documentation.
Upon returning that afternoon, Dr. Battle answered some
questions regarding his tax status but still refused to produce any
evidence responsive to the summonses. Instead, he asserted his
rights under the Fifth Amendment, claiming he should not be forced
to produce incriminating documents. The district court, in ruling
the document production would not be incriminating, determined that
Dr. Battle did not have a valid Fifth Amendment claim. The court
held Dr. Battle in contempt of the enforcement order and ordered
him in custody, until he produced documents responsive to the
summons. On 23 January, Dr. Battle’s associate produced the
necessary documentation. As a result, the civil contempt order was
vacated, and Dr. Battle was released.
The first issue to address is whether Dr. Battle’s notice of
appeal sufficiently shows he is appealing from the contempt and the
enforcement orders. The somewhat erroneous notice of appeal
indicates he is appealing both. Smith v. Barry, 502 U.S. 244, 248
(“While the requirements of Rule 3(c) are jurisdictional ...
court’s construe a notice of appeal liberally to avoid technical
barriers to review); see FED. R. APP. P. 3(c)(4). Additionally, any
technical error in the notice of appeal does not bar review of the
claim because the Government has not shown it was “prejudiced or

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misled by the mistake”. Morin v. Moore, 309 F.3d 316, 321 (5th
Cir. 2002) (internal citations omitted).
Section 7602 of the Internal Revenue Code authorizes the IRS
to summon an individual or third party to testify and produce
documents relevant to an inquiry regarding tax liability. 26
U.S.C. § 7602. Should the taxpayer or third party refuse to
produce the required information, the IRS may petition the district
court to compel compliance with the summons. 26 U.S.C. § 7402(a)
& (b). In order to obtain enforcement of an administrative
summons, the IRS must satisfy the requirements in United States v.
Powell, 379 U.S. 48, 57-58 (1964): (1) the investigation is being
conducted for a legitimate purpose; (2) the inquiry is relevant to
that purpose; (3) the requested information is not within the IRS’
possession; and (4) the administrative steps required by the
Internal Revenue Code have been followed. Based on our review of
the record, the IRS has done so. Accordingly, the burden shifts to
Dr. Battle: (1) to show the Government has failed to meet its
burden under Powell; (2) to assert and prove that enforcement would
constitute an abuse of the court’s process; or (3) to show any
other appropriate ground under which the summons should not be
enforced. See United States v. Huckaby, 776 F.2d 564, 567 (5th
Cir.) (internal citations and quotations omitted), cert. denied,
475 U.S. 1085 (1986).

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Dr. Battle makes a number of challenges to the enforcement
order. First, Dr. Battle asserts the issuance of the summonses
were not for a legitimate purpose because they were issued solely
for the purpose of gathering evidence for a criminal prosecution.
“The burden of proving that the IRS, as an institution, has
abandoned any pursuit of [a] taxpayer’s civil tax liability, is a
heavy one, requiring the taxpayer to prove an extraordinary
departure from IRS’ established procedure.” Miami Springs, 655
F.2d at 665. (internal citations and quotations omitted). Dr.
Battle offers no evidence in support of his claim; instead, he was
told repeatedly throughout the proceedings that he was not the
target of any criminal investigation. His bald assertions, without
more, are not sufficient.
Second, Dr. Battle challenges the validity of the assessments
the Government is attempting to collect. Specifically he claims
the summonses are void because the Government: (1) has not
produced evidence of any income tax due; (2) has failed to produce
evidence of an existing tax liability; and (3) did not adequately
notify him of the assessments for years 1994 through 1998. A
summons-enforcement action is not the appropriate forum for
challenging the validity of an assessment. See United States v.
Harper, 662 F.2d 335, 336 (5th Cir. 1981). Instead, in an
enforcement proceeding, the Government need only show that the
Powell factors have been met. Id. As noted, the Government has

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satisfied that burden. Therefore, Dr. Battle’s challenges to the
assessments underlying the summonses fail.
Third, Dr. Battle claims that he was not afforded an
administrative hearing before the summonses were issued, rendering
them premature. Though appropriate in some circumstances, a
taxpayers right to such a hearing is not absolute. See United
States v. Harris, 628 F.2d 875, 879 (5th Cir. 1980). To obtain the
hearing, a taxpayer must show “in a substantial way the existence
of substantial deficiencies in the summons proceedings.” Id.
(internal citations omitted). Dr. Battle failed to do so.
Fourth, Dr. Battle asserts that the IRS did not follow proper
internal procedures. Specifically, he complains the IRS: (1) did
not to comply with the Privacy Act of 1974; (2) engaged in taxpayer
harassment, in contravention of 26 U.S.C. § 6304, the fair tax
collection practices section of the Internal Revenue Code; and (3)
failed to respond to his numerous correspondences. None of Dr.
Battle’s claims bar the enforcement action. Contrary to his
assertions, compliance with the Privacy Act is not a prerequisite
to issuance of an IRS summons. See United States v. McAnlis, 721
F.2d 334, 336 (11th Cir.), cert. denied, 467 U.S. 1227 (1984). In
addition, a review of the record shows the Government did not
engage in any harassment or abusive behavior. Finally, Dr. Battle
does not provide any details about correspondences to which the
Government allegedly failed to respond, nor does he provide any

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legal basis why such actions should bar his enforcement action. See
generally, Powell, 379 U.S. at 55-57 (detailing the requirements
for an enforcement action).
Next, Dr. Battle asserts the Government failed to allow a
collection due-process hearing regarding the assessed liabilities,
as required by 26 U.S.C. §§ 6330(b) and 6320(b). As the Government
notes, however, Dr. Battle told the district court a due-process
hearing was already set for February 2006. The fact that the
hearing had yet to have taken place at the time the district court
ordered the enforcement action does not bar the order.
Finally, Dr. Battle asserts the order holding him in civil
contempt and serving a subpoena duces tecum on Jane Clifford was in
violation of his Fifth Amendment rights protecting against the
compelled production of records. Dr. Battle failed to brief this
claim, and therefore, has effectively abandoned it. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
AFFIRMED

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