U.S. COURT OF APPEALS, 7TH CIRCUIT
February 19, 1971
THOMAS A. SHAHEEN, PLAINTIFF-APPELLANT
EXCHANGE NATIONAL BANK OF CHICAGO ET AL., DEFENDANTS-APPELLEES.
Before LUTHER M. SWYGERT, Chief Judge, WALTER J. CUMMINGS, OTTO KERNER, Circuit Judges.
The question in this appeal is whether a taxpayer can restrain a third party from complying with an Internal Revenue Service summons before a judicial enforcement proceeding has been brought. After receipt of appellant's brief, appellees' motion for summary disposition, and a government memorandum amicus curiae, this Court ordered the case held in abeyance pending a decision of the Supreme Court in Donaldson v. United States (No. 65 Oct. Term 1970).
The Donaldson case, decided January 25, 1971, holds that a taxpayer has no absolute right to intervene in an I.R.S. summons enforcement proceeding where the records sought belong to the third party and are not protected by any privilege. Appellant admits that under Donaldson he would not be entitled to intervene in an enforcement proceeding.
Donaldson leaves open the possibility that a taxpayer could restrain a third party pending a judicial determination of whether his interest in the records was protectible. But it would be inappropriate to determine that question in a case where, as here, the taxpayer admits his interest is not protectible. The posture of the government in a restraint proceeding, appellant's second issue,*fn* also is a hypothetical question where the taxpayer is not entitled to a restraining order.
It is therefore ordered that the judgment of the district court be affirmed, and the restraining order issued by this Court on August 20, 1970, be vacated.