United States District Court, Northern District of Illinois, E.D
May 17, 1984
JAMES C. BUCKNER, PETITIONER,
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
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
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
Accordingly, the government's motion to dismiss Buckner's
petition to quash is granted.*fn4 It is so ordered.