Boulware v. United States

MEMORANDUM *** Michael H. Boulware and his closely held corporation, Hawaiian Isles Enterprises (HIE), challenge various district court rulings rejecting their attempts to block summonses issued by the Internal Revenue Service (IRS). The summonses were directed to Michael’s brother, Sidney Boulware, in his capacity as President of HIE and a related corporation, HIE Holdings. They sought production of various “books, records, papers, and other data relating to the tax liability” of the two companies, including documents having to do with transactions between HIE and Boulware, his girlfriend, and his ex-wife. The district court dismissed Boulware’s petition to quash the HIE summons under 26 U.S.C. § 7609 for lack of jurisdiction. It held that Boulware was not entitled to *174 notice of the summons because HIE, to which it was directed, was not a “third-party record keeper.” We affirm on Boul-ware’s appeal and dismiss HIE’s appeal as moot. HIE’s appeal fails for two reasons. First, it lacks standing because its only arguments pertain to the adverse ruling against Boulware. Second, having not appealed from the subsequent ruling in a separate action (No. 04-17172) enforcing the summons against it, its challenge in this case is moot. Whether or not the district court correctly applied the “third-party record-keeper” requirement under the version of § 7609 in effect in 2003, see Pub.L. 105-206, § 3415 , 112 Stat. 685 , 755-56 (1998) (removing third-party recordkeeper references), the IRS made the “minimal showing” required to dispute Boulware’s claim that he (rather than HIE and Holdings) was the target of the IRS investigation. See United States v. Blackman, 72 F.3d 1418, 1422 (9th Cir.1995) (citing United States v. Powell, 379 U.S. 48, 57-58 , 85 S.Ct. 248 , 13 L.Ed.2d 112 (1964)). The district court did not clearly err in finding that the target was HIE, not Boulware. The summons itself identifies HIE, most of the requested documents had nothing to do with Boulware, and Boulware is mentioned only in the context of his transactions with HIE. In addition, IRS Agent Lum’s declaration show that he was conducting an examination into tax liabilities of HIE. See id., 72 F.3d at 1422 ; United States v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir.1993) (stating that the government’s burden may be satisfied by a declaration that the Powell requirements have been met). AFFIRMED (No. 04-15688); DISMISSED (No. 04-15645). This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.