Unpublished Disposition, 851 F.2d 361 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 851 F.2d 361 (9th Cir. 1988)

UNITED STATES of America; Charles Emerson, Revenue Officerof the Internal Revenue Service, Plaintiffs-Appellees,v.Richard A. PARGETER, Defendant-Appellant.

No. 87-3574.

United States Court of Appeals, Ninth Circuit.

Submitted May 27, 1988.* Decided June 22, 1988.

Before WALLACE, SNEED and POOLE, Circuit Judges.


MEMORANDUM

Pargeter, pro se, appeals from the district court's order enforcing an Internal Revenue Service (IRS) summons for him to appear before the IRS to testify and produce records. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Pargeter argues that the district court erred in numerous respects in ordering him to comply with the IRS summons. As near as we can define his argument, he contends that: (1) the district court and the IRS improperly asserted jurisdiction over him because he is not a taxpayer; (2) the IRS's summons violated his fourth amendment right to be free from unreasonable searches and seizures, and his fifth amendment right against self-incrimination; (3) an IRS agent made a false statement concerning him in violation of 18 U.S.C. § 1001; (4) the IRS used an unauthorized attorney; and (5) Judge Voorhees, the district court judge, is biased against "tax protesters." We examine and reject each of Pargeter's arguments below.

First, we have repeatedly rejected the argument that because an individual is a "common law, natural individual" he or she is therefore not a "taxpayer." E.g., United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986). Pargeter's reliance on Economy Plumbing & Heating Co. v. United States, 470 F.2d 585, 589 (Ct. Cl. 1972), is misplaced. Economy Plumbing's discussion of the difference between taxpayers and non-taxpayers arose in the context of a specific contract dispute involving an individual. On the specific facts of that case, the court concluded "that the plaintiffs are not taxpayers in this case with respect to these funds within the meaning of the revenue laws." Id. at 588. The case provides no support for Pargeter's claim that he is a non-taxpayer because he is a "common law, natural individual."

Second, the IRS is authorized to issue a summons to aid in tax investigations. Studley, 783 F.2d at 940-41. The district court has the authority to enforce an IRS summons. See id. at 940-41. The unlawful search and seizure provisions of the fourth amendment do not protect the taxpayer from an IRS summons designed to elicit records and testimony in order to determine whether a tax deficiency existed. E.g., United States v. Theep, 502 F.2d 797, 798-99 (9th Cir. 1974) (per curiam). To the extent Pargeter raises his fifth amendment privilege against self-incrimination, his claim is premature. He cannot invoke the privilege in an appeal of a summons enforcement order. United States v. Rendahl, 746 F.2d 553, 555 (9th Cir. 1984). He must wait until he appears before the IRS with his books and records and then raise the privilege with respect to questions asked or documents sought. Id.

Third, IRS agent Emerson did not violate 18 U.S.C. § 1001. Emerson's declaration states:

On the date upon which appearance was required, the respondent(s) refused to appear and comply with the summons by producing the books, records and other documents demanded in the summons or by giving testimony as to the matters requested in said summons.

While Pargeter did appear as directed, he did not produce the records as demanded in the summons. Thus, Pargeter did not appear and comply with the summons. Emerson's statement is not false.

Fourth, there is no showing that the government used an unauthorized attorney. Pargeter's reliance on the fact that Ferguson identified himself as District Counsel for the IRS during the early part of the proceedings and later identified himself as an Assistant United States Attorney in the response to Pargeter's motion for reconsideration is insufficient. Anderson, the United States Attorney, not Ferguson, submitted the allegedly "defective" response to the motion for reconsideration, although Ferguson signed on behalf of Anderson.

Fifth, Pargeter presents no evidence that the district judge is either biased against him personally or other "tax protesters," or that the judge formed an opinion about the merits of the case from an extrajudicial source. Thus, we reject Pargeter's vague allegations of bias. See United States v. Conforte, 624 F.2d 869, 878-81 (9th Cir.), cert. denied, 449 U.S. 1012 (1980).

AFFIRMED.

 *

The panel is unanimously of the opinion that oral argument is not required in this case. Fed. R. App. P. 34(a)

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