Opinion
Civil Action No. 3:02-CV-1719-M
October 8, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the District Court's Order Referring Motion, entered September 30, 2002, Plaintiffs "Objection to Finding of Magistrate Judge and Demand for Reconsideration," filed September 19, 2002, is before this Court for hearing, if necessary, and for recommendation. For the following reasons, the motion should be DENIED.
On August 13, 2002, Plaintiff E.G. Alford, Jr., ("Alford") filed a petition to quash an Internal Revenue Service ("IRS") summons. The summons required Alford to appear before an IRS revenue officer and to produce "documents and records" regarding taxable income for the years 1996 through 2000. On August 28, 2002, this Court denied Alford's petition as without merit. On September 19, 2002, Alford filed the instant motion for reconsideration, in which he contends that the summons should be quashed because: (1) the summons was issued and served by the same IRS revenue officer and (2) IRS Form 1040 does not have a valid Office of Management and Budget ("OMB") control number in violation of 44 U.S.C. § 3512 ("Paperwork Reduction Act").
With respect to issuance and service of the summons, it is not disputed that IRS Revenue Officer Kelvin R. Rogue ("Rogue") both issued and served the summons on Alford. Nonetheless, it is well established that a single IRS revenue officer may both issue and serve a summons pursuant to 26 U.S.C. § 7602 and 7603. United States v. Crum, 288 F.3d 332, 333 334 (7th Cir. 2002) (noting that the same IRS revenue officer both issued and served summons); United States v. Derr, 968 F.2d 943, 946-47 (9th Cir. 1992) (noting that the same IRS revenue agent both issued and served a summons); United States v. McCoy, 954 F.2d 1000, 1001 (5th Cir. 1992) (noting that the same IRS revenue officer both issued and served a summons); United States v. Bichara, 826 F.2d 1037, 1038 (11th Cir. 1987) (noting that the same IRS revenue officer both issued and served a summons); United States v. Howard, 360 F.2d 373, 375 (3d Cir. 1966) (noting that the same IRS special agent both issued and served a summons and reversing on other grounds). As such, Alford's first contention that the summons should be quashed because Rogue both issued and served the summons is without merit.
With respect to the alleged lack of an OMB control number on IRS Form 1040, Alford's contention is entirely irrelevant to the issue of whether the summons should be quashed. First, the summons itself was issued on IRS Form 2039, not on IRS Form 1040. Furthermore, the summons does not require Alford to file an IRS Form 1040, but rather it requires Alford to appear and to produce "[a]ll documents and records in [his] possession or control reflecting the receipt of taxable income by [Alford] for the year(s) 1996 thru 2000." Finally, even if IRS Form 1040 lacks an OMB control number, and even if the instant summons were to initiate an investigation that eventually led to Alford's conviction for failure to file an income tax return, any such conviction would not be prohibited by the Paperwork Reduction Act. United States v. Kerwin, 945 F.2d 92, 92 (5th Cir. 1991) ("[T]he Paperwork Reduction Act does not apply to the statutory requirement that a taxpayer must file a return."). As such, Alford's second and final contention that the summons should be quashed because IRS Form 1040 allegedly lacks an OMB control number is without merit.
Accordingly, the Court RECOMMENDS that Alford's "Objection to Finding of Magistrate Judge and Demand for Reconsideration" be DENIED.