IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES OF AMERICA,                                 )
                                                                                        )                 Civil Action No.
Petitioner,                                                                         )                 1:08-cv-1307-ODE-xxx
v.                                                                                     )
KIMBERLY C. BRAME,                                                )
Respondent.                                                                     )
____________________________________________)___________________________________________

KIMBERLY C. BRAME’S MEMORANDUM OF
POINT AND AUTHORITIES IN OPPOSITION TO
ORDER TO SHOW CAUSE

26 U.S.C. § 7603(a) imposes a mandatory Congressional requirement that the IRS serve an attested copy of an administrative summons issued under the authority of 26 U.S.C. § 7602. The statute states:

(a) In general.--A summons issued under section 6420(e)(2), 6421(g)(2), 6427(j)(2), or 7602 shall be served by the Secretary, by an attested copy delivered in hand to the person to whom it is directed, or left at his last and usual place of abode; and the certificate of service signed by the person serving the summons shall be evidence of the facts it states on the hearing of an application for the enforcement of the summons. 26 U.S.C. § 7603(a) (emphasis added).

That service of an attested copy of the summons is required is well known to the employees of the Internal Revenue Service, as such requirement is set forth in Internal Revenue Manual 25.5.3, the Summons Handbook. A copy of this portion of the manual is attached hereto as Exhibit A, and may also be viewed on the IRS’s website. In Mimick v. United States, 952 F.2d 230 (8th Cir. 1991), the taxpayer was not served with an attested copy of the summons and moved to quash the summons as unenforceable. The Court stated:

Under § 7603 of the Internal Revenue Code of 1986, 100 Stat. 2778, as amended, 26 U.S.C. § 7603 (1988), a summons “shall be served by the Secretary, by an attested copy delivered in hand to the person to whom it is directed, or left at his last and usual place of abode....” (Emphasis added.) The requirement has its origin in the Act of July 13, 1866, § 9, 14 Stat. 98, 102. A contemporary dictionary defines the word “attest” as “to bear witness to; to certify; to affirm to be true or genuine; as, to attest the truth of a writing; to attest a copy of record.” Webster's Dictionary 90 (rev. ed. 1864).

It would have been quite natural for the members of the 39th Congress to require a separate attestation that the summons served was a true copy of the original. Summonses and copies thereof typically were handwritten in that era, and the attestation provided the summoned party with the assurance that the summons was genuine and correct. Carbon paper and typewriters were not widely used until later in the 19th and early 20th century, and photocopiers have become widely used only within the last thirty years or so.

For this reason, the IRS contends that, whatever the past necessity of an attestation, the service of a carbon copy of an original summons satisfies the requirement of the statute today. We cannot say, however, that Congress would, if it considered it, no longer require a separate attestation of copies of the original summons-especially in light of the ease with which documents may be made to appear genuine by the use of modern technology. We do know that Congress has retained the requirement, through revisions and re-enactments of the Internal Revenue Code in 1939, 1954, and 1986. We therefore concur with the court below that an “attested copy” of a document is “one which has been examined and compared with the original, with a certificate or memorandum of its correctness, signed by the persons who have examined it.” Accord Henderson v. United States, 778 F.Supp. 274, 277 (D.S.C.1991). See also Winter v. Casco Bank & Trust Co., 396 A.2d 1020, 1022 (Me.1979); Black's Law Dictionary 66 (5th ed. 1979); 4A Words & Phrases Attest 505-13 (1969 & Supp.1991).

It follows that the summonses issued in this case did not comply with the statute. Our holding is consistent with the authorities cited above and preserves the meaning of a word which appears with some frequency throughout the United States Code. The IRS contends, in the alternative, that its failure to follow an administrative step required by the Code does not require per se denial of enforcement of a summons. In United States v. Gilbert C. Swanson Foundation, Inc., 772 F.2d 440 (8th Cir.1985), we held that the failure to follow the procedures set forth in an IRS delegation order did not render the summons unenforceable. We stated: We take very seriously the statutory and administrative regulations that govern the issuance of IRS summonses. They are an essential check on the discretion of an agency with broad investigatory powers over all American citizens. Nevertheless, in the circumstances of this case, we believe denial of the summons would be an elevation of form over substance. 772 F.2d at 441.

We adopted the approach used by the Fifth Circuit for determining whether to enforce a summons. This approach “requires the court to evaluate the seriousness of the violation under all the circumstances including the government's good faith and the degree of harm imposed by the unlawful conduct.” Id. (quoting United States v. Payne, 648 F.2d 361, 363 (5th Cir.1981), cert. denied,454 U.S. 1032, 102 S.Ct. 570, 70 L.Ed.2d 476 (1982)).

At the hearing in this case, the IRS presented unrefuted evidence that it acted in good faith. Prior to the district court's ruling, the IRS possessed in good faith an interpretation of § 7603 which did not require a separate attestation on the copy of the summons served. The agent who issued the summonses followed the administrative instructions and, indeed, compared the copies with the originals to ensure that they were identical.

No evidence indicates that any of the summoned parties hesitated to act or lost substantial rights because of the absence of an attestation on the copy of the summons served. The evidence shows that the copies served are true and correct copies of the originals and lack only the attestation to fully comply with the requirements of § 7603. Under all of the circumstances as they appear in the record, we conclude that the trial court should have followed the approach we adopted in the Swanson Foundation case and that it erred in refusing to enforce the summonses. Accordingly, we hold that the summonses are enforceable notwithstanding the lack of separate attestations. The decision of the district court is reversed and the case remanded for further proceedings consistent with this opinion.l Revenue Service has now been alerted to the requirements for an attested copy, future summonses should comply with this holding. Mimick, 952 F.2d at pp. 231-32 (emphasis added).

In Swanson Foundation, 772 F.2d, there was no lack of attestation issue in the case. The argument there was that because the summons had been altered after supervisory approval and the alterations were not approved, the summons was not enforceable due to an administrative violation of a delegation of authority order. Swanson Foundation, 772 F.2d at 440. The Eighth Circuit held:

The Foundation's argument focuses on the fourth of these requirements. In evaluating the administrative propriety of summonses in other contexts, the Fifth Circuit has held that Nothing in the language of the code itself mandates * * * [ per se denial of enforcement of the summons] for infringement [of the Internal Revenue Code's administrative requirements]. The correct approach for determining whether to enforce a summons requires the court to evaluate the seriousness of the violation under all the circumstances including the government's good faith and the degree of harm imposed by the unlawful conduct. United States v. Payne, 648 F.2d 361, 363 (5th Cir.1981), cert. denied, 454 U.S. 1032, 102 S.Ct. 570, 70 L.Ed.2d 476 (1982), citing United States v. Moulton, 614 F.2d 1063, 1066 (5th Cir.1980).

We take very seriously the statutory and administrative regulations that govern the issuance of IRS summonses. They are an essential check on the discretion of an agency with broad investigatory powers over all American citizens. Nevertheless, in the circumstances of this case, we believe denial of the summons would be an elevation of form
over substance. The addition of the corporate treasurer's name to the summons did not alter the substance of the summons. The treasurer was expected to represent the Foundation as a responsible officer, and he was not obligated to provide documents or testify about materials outside the breadth of the summons as originally approved. Naturally,the fifth amendment protects the treasurer from answering any questions directed to him which might stray beyond the ambit of the summons and into the realm of his personal tax liability, if any. Swanson Foundation, 772 F.2d at 441.

A clear distinction appears between the holdings of Swanson Foundation and Mimick. In the former, there was a violation of an IRS administrative requirement, and in the latter, there was a violation of a mandatory congressional
requirement. A court is not allowed to ignore the law no matter how strongly it might feel the law is no longer necessary. Despite the advent of carbon paper and carbonless paper forms, Congress has firmly expressed its intent to require service of an attested copy of the summons in its re-enactment of the Internal Revenue Code in 1986. p>

Furthermore, even after the Mimick decision in 1991, Congress has not seen fit to change the mandatory requirement.
Finally, despite its refusal to require the IRS to comply with a congressionally mandated obligation in the Mimick decision, the last sentence cannot be ignored. The IRS was resolutely put on notice by the Mimick decision
that it would be required to abide by the requirement of Section 7603(a).

Just as Swanson Foundation did not involve the issue of lack of attestation, so too Payne, did not involve the lack of attestation issue. In Payne the summons was not properly served and the lack of service was waived when the taxpayer appeared and did not object to the deficiency. Payne, 648 F.2d at 361-62. Here, however, Brame was not given an opportunity to raise an objection at the appearance; the appearance was cancelled by Revenue Office Brent before it began. Brame did raise the objection, however, in her very next correspondence with the IRS in her letter of May 3, 2007. (See Exhibit E attached to her Answer and Opposition to OSC).

A few cases subsequent to Mimick, such as United States v. Street, 791 F.Supp. 563 (D.Md.,1992) have ignored the last sentence of Mimick and instead relied on Swanson Foundation and Payne as authority to ignore the mandatory law imposed by Congress and enforce summonses that violate the law. When the courts allow governmental agencies to violate the law, then anarchy prevails. 26 U.S.C. § 7603(a) is clearly written and requires no interpretation. It is the solemn and honorable duty of this Court to enforce the law equally, whether the law is
applicable to a taxpayer or the taxing authority. Unless the United States can present evidence to establish an “attested copy” of the summons was served, the law was violated and the summons is not enforceable. After the warning in Mimick, there is no excuse for failure to comply with the law.

In United States v. Powell, 379 U.S. 48 (1964), the Supreme Court stated the Commissioner, to prevail on a summons enforcement petition, among other things, must show “that the administrative steps required by the Code have been followed-in particular....” Powell, 379 U.S. at 58 (emphasis added). Just as the Congressional mandate of 26 U.S.C. § 7603(a) is clear, so is the requirement of the Supreme Court that the burden is on the Commissioner to show compliance, in particular, with the Congressional mandate. This does not mean partial compliance, or total lack of compliance, is sufficient because no harm arises or for any other reason. The statute imposes a strict liability of compliance, and the Supreme Court requires the same level of compliance.

The Powell court also stated: “It is the court's process which is invoked to enforce the administrative summons and a court may not permit its process to be abused.” Powell, id. The Court’s process is abused when government witnesses make false declarations under penalty of perjury to cover up their violations of law.

Dated: June 19, 2008.

/s/ Jeffrey A. Dickstein

/s/ William Joiner

Attorney for Respondent Mitchell & Shapiro LLP
500 W. Bradley Rd., C-208 One Securities Centre
Fox Point, WI 53217 3490 Piedmont Road, Suite 650
(414) 446-4264, no fax Atlanta, GA 30305
Cal Bar No. 70638 (404) 812-4751, fax (404) 812-4740
Ga. Bar No. 397705

CERTIFICATE OF COMPLIANCE
I certify that the document to which this certificate is attached has been prepared with one of the font and point selections approved by the Court in LR 5.1B (Times New Roman, 14 pt.) for documents prepared by computer.

Dated: June 19, 2008.

/s/ Jeffrey A. Dickstein

CERTIFICATE OF SERVICE
I hereby certify that on June 19, 2008, I electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the attorney for the Petitioner, Neeli Ben-David.