538 F. 2d 330 - United States of America and Elaine Schmidt, Revenue Agent of the Internal Revenue Service v. Eugene J. May

Upon reconsideration of our Order entered on June 9, 1976, we are of the opinion that the appeal was timely filed because in cases wherein the United States is a party the appeal may be taken by any party within sixty days from the entry of the order appealed from. Rule 4 Fed.R.App.P.

It is therefore ORDERED sua sponte that the last four paragraphs of the Order entered on June 9, 1976 be deleted therefrom and in the place thereof the following be substituted:

May contends that the proceedings were ultra vires, but it is settled that an Agent of the Internal Revenue Service is authorized to issue a summons in aid of a tax investigation. Couch v. United States 409 U.S. 322, 326 (1973).

May's contention that the statute vesting jurisdiction and power in the District Court to enforce summons is unconstitutional, is likewise without merit.

A three-Judge panel in this Circuit upheld the constitutionality of the statute and its judgment was affirmed, per curiam, by the Supreme Court. United States v. First Nat'l Bank of Pikeville, 274 F.Supp. 283 (E.D.Ky.1967), aff'd, 390 U.S. 199 (1968). See also United States v. Union Nat'l Bank, 371 F.Supp. 763, 768-69 (W.D.Pa.1974), aff'd 506 F.2d 1053 (3rd Cir.1974).

May further contends that the procedures followed by the District Judge were irregular and violated the Federal Rules of Civil Procedure. He states that the order to show cause issued by the District Judge required him to respond in five days, and assigned the matter for hearing in nineteen days. The fact is, however, that May did file his response in five days and did attend the hearing, at which time he again refused to comply with the summons. Furthermore, the District Judge offered to allow him additional time to file an amended response if he so desired, and also would grant an additional hearing if he requested. The District Judge further suggested the advisability of May's engaging the services of an attorney. May took the position later that he would stand on his response. He did not request another hearing and indicated that he did not intend to retain an attorney.

It was not until more than a month later when the District Judge learned that May intended to stand on his response and did not request an additional hearing, that the Judge entered an order enforcing the summons.

Although the Federal Rules of Civil Procedure are applicable to enforcement proceedings, United States v. Powell, 379 U.S. 48, 58 n. 18 (1964), it is settled that District Courts are permitted to limit their application in such proceedings. In Donaldson v. United States, 400 U.S. 517, 528-29 (1971), the Supreme Court stated that the Federal Rules were "not intended to impair a summary enforcement proceeding so long as the rights of the parties summoned are protected and an adversary hearing, if requested, is made available."

Abbreviated enforcement proceedings which do not closely follow the Federal Rules of Civil Procedure are not necessarily prejudicial. See Venn v. United States, 400 F.2d 207, 212 p. 12 (5th Cir.1968).

A petition for enforcement followed by a show cause order is construed as a complaint, United States v. Pritchard, 438 F.2d 969, 971 n. 4 (5th Cir.1971); Wild v. United States, 362 F.2d 206, 209 (9th Cir.1966), and is sufficient to vest in personam jurisdiction over the defendant. United States v. Dajewski, 419 F.2d 1088 (8th Cir.1969), cert. denied, 397 U.S. 1040 (1970).

Failure to comply with the Federal Rules does not furnish the basis for reversal unless the defendant can show that he was prejudiced thereby. Cf. Daly v. United States, 393 F.2d 873, 876 (8th Cir.1968). May has not shown that he was prejudiced.

In our opinion the technical procedural objections raised by May are without merit. He was afforded due process of law. His motion to vacate under Rule 60(b)(4) is frivolous.

The judgment of the District Court is AFFIRMED.