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BUCKNER v. UNITED STATES

United States District Court, Northern District of Illinois, E.D


May 17, 1984

JAMES C. BUCKNER, PETITIONER,
v.
UNITED STATES OF AMERICA, ET AL., RESPONDENTS.

The opinion of the court was delivered by: Aspen, District Judge:

MEMORANDUM OPINION AND ORDER

Plaintiff James C. Buckner ("Buckner") has petitioned to quash the service of summons issued by the Internal Revenue Service ("IRS") to Barnard and Burk Plant Services Inc. ("Barnard and Burk").*fn1 Presently before the Court is the United States' motion to dismiss Buckner's complaint.*fn2 For reasons set forth below, the United States' motion is granted.

Section 7609 of Title 26 waives sovereign immunity and grants a right to sue the United States in the limited case of a petition to quash a summons. 26 U.S.C. § 7609(b)(2)(A). This right, however, is limited to "any person who is entitled to notice of a summons under subsection (a)." Id. Subsection (a) provides for notice to individuals who are named in summonses if the summons

  is served on any person who is a third-party
  record keeper, and

  (B) the summons requires the production of
  records made or kept of the business transactions
  or affairs of any person (other than the person
  summoned) who is identified in the description of
  the records contained in the summons. . .

26 U.S.C. § 7609(a)(1). Buckner's right to bring a proceeding to quash the summons thus hinges upon whether he is entitled to notice. This requires us to decide whether Barnard and Burk is a "third-party record-keeper".

According to the statute, a third-party recordkeeper is:

    (A) any mutual savings bank, cooperative bank,
  domestic building and loan association, or other
  savings institution chartered and supervised as a
  savings and loan or similar association under
  Federal or State law, any bank (as defined in
  section 581), or any credit union (within the
  meaning of section 501(c)(14)(A));

    (B) any consumer reporting agency (as defined
  under section 603(d) of the Fair Credit Reporting
  Act (15 U.S.C. § 1681a(f)));

    (C) any person extending credit through the use
  of credit cards or similar devices;

    (D) any broker (as defined in section 3(a)(4)
  of the Securities Exchange Act of 1934
  (15 U.S.C. § 78c(a)(4)));

(E) any attorney;

(F) any accountant; and

    (G) any barter exchange (as defined in section
  6045(c)(3)).

26 U.S.C. § 7609(a)(3). Barnard and Burk does not fall within the purview of § 7609(a)(3), as it is not a financial institution, broker, attorney, accountant, and it does not extend credit.

Moreover, the summons in question does not seek third-party records, that is, data about transaction between Buckner and third parties. Rather, it seeks information concerning dealings between Buckner and Barnard and Burk, which are properly characterized as two-party records. Section 7609(a)(1) does not provide for notice where the records sought are those of the person summoned, as is the case here. As a result, Buckner lacks standing to quash the summons under § 7609(a). Schlick v. United States, 586 F. Supp. 433, 434 (N.D. Ill. 1984); Godwin v. United States, 564 F. Supp. 1209, 1211 (D.Del. 1983).*fn3

Accordingly, the government's motion to dismiss Buckner's petition to quash is granted.*fn4 It is so ordered.


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