Claire Kelley, Plaintiff-appellant, v. United States of America et al., Defendants-appellees, 503 F.2d 93 (9th Cir. 1974)

Appellant, a depositor of the Bank of America, seeks to enjoin the enforcement of an Internal Revenue Service summons issued pursuant to 26 U.S.C. 7602. The summons commanded the officers of the bank to produce for examination 'all bank statements, ledger sheets, canceled checks, or any other records pertaining to the above named taxpayer in your possession or control which reflect deposit or withdrawal transactions or any other transactions in the checking, savings, or loan accounts with the Bank of America.' Appellant asserts that production of the demanded records will violate her rights under the Fourth and Fifth Amendments of the United States Constitution. She sought an order restraining the bank from granting the Internal Revenue Service access to the rocords and restraining the Internal Revenue Service from enforcing the summons. The district court dismissed her complaint for lack of jurisdiction and failure to state a claim.

Injunction by a taxpayer will not lie against the Internal Revenue Service or its officers in a situation such as this. A remedy at law exists through intervention of the taxpayer in judicial proceedings brought by the Commissioner in enforcement of his summons. Reisman v. Caplin, 375 U.S. 440, 84 S. Ct. 508, 11 L. Ed. 2d 459 (1964).

The problem we face is that the bank here has indicated willingness to comply with the summons and thus enforcement proceedings appear to be unnecessary. With reference to this problem it was stated in Reisman:

'Nor would there be a difference should the witness indicate * * * that he would voluntarily turn the papers over to the Commissioner. If this be true, either the taxpayer or any affected party might restrain compliance, as the Commissioner suggests, until compliance is ordered by a court of competent jurisdiction. This relief was not sought here. Had it been, the Commissioner would have had to proceed for compliance, in which event the petitioners or the Bromleys might have intervened and asserted their claims.'

375 U.S. at 449-450, 84 S. Ct. at 514. In Fitzmartin v. Bingler, 244 F. Supp. 541 (W.D. Pa. 1965), the court followed the procedure suggested by the Supreme Court. The action was dismissed as to officers of the Internal Revenue Service. However, the bank was restrained from compliance with the summons until disposition of proceedings by the United States to compel attendance of the witnesses and production of the demanded records.

In the case before us questions are presented as to the standing of appellant to protest production under Couch v. United States, 409 U.S. 322, 93 S. Ct. 611, 34 L. Ed. 2d 548 (1973), and Donaldson v. United States, 400 U.S. 517, 91 S. Ct. 534, 27 L. Ed. 2d 580 (1971). Inclusion of canceled checks of the taxpayer among the documents sought would seem to give standing, at least as to such checks. However, all these issues can be resolved at hearings in due course on application by appellant for intervention in enforcement proceedings.

Accordingly we find no error in denial by the district court of an injunction against the Internal Revenue Service or its officers. However, an opportunity should be afforded appellant to seek an order restraining the bank from compliance with the summons until such constitutional claims as she has standing to assert have had judicial consideration.

The order dismissing the action is vacated and the matter remanded for further proceedings.