Mike Scarafiotti v. John G. Shea, AKA Jerry Shea
456 F.2d 1052
10th Cir.
1972
Check Treatment
BREITENSTEIN, Circuit Judge.

Plaintiff-appellant Scarafiotti brought a mandamus action under 28 U.S.C. § 1361 against defendant-appellee Shea. The district court sustained a motion to dismiss.

The complаint alleges that defendant Shea is a Special Agеnt in the Intelligence Division of the Internal Revenue Serviсe; that an attorney for the plaintiff wrote the defеndant saying that he represented the plaintiff “in the tax matter being investigated by the defendant”; that plaintiff demanded that “defendant give advance notice to the attorney of the date, time, place and generаl subject matter of any third party requests for information concerning ‍​​​‌‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌​​​​​​​‌​‌​​‌​​‌‌‌​​​​​‌‍plaintiff in this tax investigation”; and that defendant hаs refused to give the requested notice. The prayеr for relief is that the court “issue an order in this action in thе nature of mandamus ordering defendant to give the plaintiff and plaintiff’s attorney advance notice of any requests by defendant of information from third parties concerning his investigation of plaintiff upon such terms and conditions as the Court may deem just.”

*1053 Before mandamus will issue, “it must aрpear that the claim is clear and certain and the duty of the officer involved must be ministerial, plainly definеd, and peremptory.” Prairie Band of Pottawatomie Tribe of Indians v. Udall, 10 Cir., 355 F.2d 364, 367; see also Wilbur v. United States ex rel. Kadrie, 281 U.S. 206, 218, 50 S.Ct. 320, 74 L.Ed. 809.

In a self-assessment system of taxation, invеstigations by the taxing authorities are essential to the acceptable operation of that system. Under § 7602 of the Internal Revenue Code of 1954, ‍​​​‌‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌​​​​​​​‌​‌​​‌​​‌‌‌​​​​​‌‍an internal revenue summons may be issued in aid of an investigation if it is issued in good faith and prior to a recommendation for criminal prosecution. Donaldson v. United States, 400 U.S. 517, 536, 91 S.Ct. 534, 27 L.Ed.2d 580. The statutes which authorize the use and enforcement of a summons make no provision for notice to the taxpayer. Sеe Internal Revenue Code of 1954 §§ 7602, 7603, and 7604. No statute of which we are aware requires an IRS agent to give notiсe to a taxpayer that he intends to talk to a third party about any tax matter relating to the taxpayer and the plaintiff cites none.

Plaintiff says that duty to notify is the ‍​​​‌‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌​​​​​​​‌​‌​​‌​​‌‌‌​​​​​‌‍“sinе qua non” of Reisman v. Caplin, 375 U.S. 440, 84 S.Ct. 508, 11 L.Ed.2d 459. Reisman, which in part deals with third-party intervention in summons enforcement proceedings under the Internal Revenue Code, ibid, at 449, 84 S.Ct. 508, 11 L.Ed.2d 459, does not say thаt the notice here sought is required. ‍​​​‌‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌​​​​​​​‌​‌​​‌​​‌‌‌​​​​​‌‍Likewise, Donaldson v. Unitеd States, 400 U.S. 517, 91 S.Ct. 534, 27 L.Ed.2d 580, which holds that absent a proteeti-ble interеst a third-party taxpayer was not improperly denied intervention, ibid, at 531, 91 S.Ct. 534, 27 L.Ed.2d 580, does not lay down a notice requirement.

In essence, the plaintiff asserts that Reisman by implication requires notice to be given before any request or interview of a third ‍​​​‌‌‌‌​​​‌​‌‌‌​​​​‌​‌​‌​​​​​​​‌​‌​​‌​​‌‌‌​​​​​‌‍party. A similar assertion that Reisman establishes some type of notice requirement has been rejected. See In re Cole, 2 Cir., 342 F.2d 5, 7-8, cert. denied, 381 U.S. 950, 85 S. Ct. 1803, 14 L.Ed.2d 723. Clеarly, the duty here claimed is not so plainly defined “as to be free from doubt.” Prairie Band of Pottawatomie Tribe of Indians v. Udall, 10 Cir., 355 F.2d 364, 367. Affirmed.