Mitchell v. Thomas, et al

* Pursuant to Fifth Circuit Rule 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in Fifth Circuit
Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 27, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 06-20887
(Summary Calendar)
_________________
ROYCE EUGENE MITCHELL, JR.,
Petitioner - Appellant,
versus
CHANDY THOMAS; UNITED STATES OF AMERICA,
Respondents - Appellees.
Appeal from the United States District Court
For the Southern District of Texas
No. 4:06-MC-357
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
The petitioner/taxpayer, Royce E. Mitchell, Jr. (“Mitchell”), was under investigation for
outstanding tax liabilities for 2001 and 2002. The investigation was conducted by Chandy Thomas

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(“Thomas”), a revenue agent for the Internal Revenue Service. On August 10, 2006, Thomas issued
an administrative summons to Bank of America requesting copies of “all records, including signature
cards, bank statements, deposit slips, checks deposited” between January 1, 2001 and December 31,
2005 pertaining to Mitchell. Notice of the summons was given to Mitchell. On August 25, 2006,
Mitchell filed a petition to quash the summons. The district court denied Mitchell’s petition and
Mitchell’s subsequent motion for reconsideration.
A review the denial of a petition to quash begins by determining whether the government has
established a prima facie case pursuant to the four factors articulated by the Supreme Court in United
States v. Powell, 379 U.S. 48 (1964). The Powell court stated that in order for the IRS to enforce
a summons, it must demonstrate that: (1) the basis for the underlying investigation is legitimate, (2)
the investigation’s relevancy causally relates to that basis, (3) the IRS does not already possess the
information being sought, and (4) the administrative procedures established by the Internal Revenue
Code have been adhered to. Id. at 57-58. “The government’s minimal burden at this stage can be
fulfilled by a ‘simple affidavit’ by the IRS agent issuing the summons.” Mazurek v. United States,
271 F.3d 226, 230 (5th Cir. 2001). The government has met this burden as Thomas has submitted
a declaration outlining the history of the case and asserting facts meeting the above factors.
Because the government has established a prima facie case “we assess whether the opponent
of the summons fulfills his ‘heavy’ burden of rebutting the proponent’s case by either undermining
the proponent’s contentions regarding anyof the Powell factors or bydemonstrating that enforcement
of the summons would result in an ‘abuse’ of the court’s process.” Id. Mitchell has provided nothing
beyond conclusory assertions that the Powell factors are not met and has provided no support for his

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1 “A summons is issued in bad faith if it is issued for an improper purpose such as to harass
the taxpayer, to force the taxpayer to settle a collateral suit or for the sole purpose of gathering
evidence for a criminal prosecution.” United States v. Harris, 628 F.2d 875, 879 (5th Cir. 1980).
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claim that the summons was issued in bad faith.1 This is insufficient to satisfy his heavy burden.
Mitchell additionally argues that the district court abused its discretion by denying the petition
to quash without holding an adversary hearing. We have held that “before a taxpayer is entitled to
the adversary summons enforcement hearing, he ‘must raise in a substantial way the existence of
substantial deficiencies in the summons proceedings.’” United States v. Harris, 628 F.2d 875, 879
(5th Cir. 1980) (quoting United States v. Newman, 441 F.2d 165, 169 (5th Cir. 1971)). Mitchell’s
conclusory assertions do not meet this standard.
Lastly, we note that Mitchell’s arguments regarding sovereign and qualified immunity are not
relevant to his petition to quash the summons.
Therefore, we AFFIRM the district court’s denial of Mitchell’s petition to quash the
summons.

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