2004 | Cited 0 times | D. Maine | June 18, 2004


On September 3, 2002, Richard J. Thomas (Thomas) moved thisCourt to quash a series of Internal Revenue Service (IRS)summonses. On April 14, 2003, this Court affirmed the RecommendedDecision of Magistrate Judge Kravchuk and ordered partialenforcement of the summonses. Thomas v. United States,254 F. Supp.2d 174 (D. Me. 2003). Dr. Thomas appealed, and on March16, 2004, the First Circuit Court of Appeals affirmed thedecision of the district court and imposed sanctions for hisfrivolous appeal. Thomas v. United States, 2004 WL 549793 (1stCir. 2004).

This is a companion case. Following this Court's Order of April14, 2003, the IRS served eight summonses upon third parties forthe production of documents. Dr. Thomas responded by filing withthis Court a Petition to Quash those summonses. The IRS latermoved to dismiss the Motion to Quash as it related to the IRSsummons to the Church of Jesus Christ of Latter Day Saints on theground that the Church was not a "third party recordkeeper"pursuant to 26 U.S.C. § 7603 and § 7609(c)(2)(E) and Dr. Thomaslacked standing to pursue a motion to quash. On September 30,2003, Judge Kravchuk issued a Recommended Decision that this Court grant theIRS's Motion to Dismiss and deny Dr. Thomas's Motions to Quashthe remaining seven summonses.

Dr. Thomas's grounds for petitioning to quash the summonses areagain frivolous. First, he attempts to raise the issues that werethoroughly discussed and resolved against him in the earlierproceeding. In her September 30, 2003, Recommended Decision,Judge Kravchuk explained that to the extent Dr. Thomas wasattempting to resurrect the same arguments in this proceeding aswere rejected in the earlier proceeding, her recommendations wereunchanged. This Court's position as well remains unchanged.

Dr. Thomas next contends his appeal of this Court's April 14,2003 Order "estopped" the IRS "from opening and using anyinformation provided by those parties originally summonsed orprovided by other parties based on ill-gotten privateinformation, papers and records, until such matter is settled."Pet.'s Amended Pet. To Quash at 4. Dr. Thomas is incorrectabout the enforceability of the IRS summons pending appeal: If hewished to prevent the enforcement of the IRS summonses pendingappeal, he was required to file a motion to stay the judgmentunder Rule 62. He failed to do so and the summonses remainedenforceable pending appeal. United States v. Puckett,573 F. Supp. 713, 716 (E.D. Tenn. 1981); United States v. Manchel,Lundy and Lessin, 477 F. Supp. 326, 334 (E.D. Pa. 1979); 11Wright & Miller, Fed. Practice & Procedure: Civil 2d ed. § 2904.Dr. Thomas's claims have been rendered moot in any event by therecent denial of his appeal by the First Circuit. Thomas, 2004WL 549793, *2.

The United States Magistrate Judge filed her RecommendedDecision with the Court on September 30, 2003. The Petitionerfiled his objection to Recommended Decision on October 7, 2003;the Respondent filed its objections to the Petitioner's Objection on October 21, 2003; and, the Petitioner filed a Replyto the Response to Objection on November 12, 2003. This Court hasreviewed and considered the Magistrate Judge's RecommendedDecision, together with the entire record and has made a denovo determination of all matters adjudicated by the MagistrateJudge's Recommended Decision. This Court concurs with therecommendations of the United States Magistrate Judge for thereasons set forth in her Recommended Decision and for the reasonsfurther set forth herein and this Court determines no furtherproceeding is necessary.

1. It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby AFFIRMED. 2. It is further ORDERED that the Respondent's Motion to Dismiss (Docket No. 5) is hereby GRANTED. 3. It is further ORDERED that the Petitioner's Motions to Quash (Docket Nos. 1, 3 and 4) are hereby DENIED.

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