F I L E D
United States Court of Appeals
Tenth Circuit
SEP 16 1998
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER
Clerk
UNITED STATES OF AMERICA;
KIRK ALLINGER, Revenue Agent;
INTERNAL REVENUE SERVICE, No. 98-3121
Petitioners - Appellees, (D. Kansas)
v. (D.C. No. 97-CV-1525)
IVAN G. CARNEY,
Respondent - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Ivan G. Carney, appearing pro se, 1 appeals the district court’s order
enforcing an Internal Revenue Service (“IRS”) summons. He contends that the
district court erred in concluding that he was not entitled to invoke a blanket Fifth
Amendment privilege against producing any of the “books, records and other
data” requested in the summons. We exercise jurisdiction pursuant to 28 U.S.C.
§ 1291 2 and affirm.
BACKGROUND
The facts are undisputed. On August 22, 1997, IRS agent Kirk Allinger
issued an administrative summons 3 to Carney, which required Carney to appear to
give testimony and to bring with him certain books, papers, records, and other
data relating to Carney’s chiropractic clinics and rental properties for 1994 and
1995. When Carney failed to appear on the date specified in the summons, the
1
Carney was represented by counsel in all substantive filings in the district
court. However, Carney’s counsel withdrew prior to the contempt hearing which
was scheduled pursuant to the court’s ruling on the merits of the government’s
petition, and Carney has since represented himself. Appellant’s Br. at 2.
2
See United States v. Jose, 519 U.S. 54, 57, 117 S. Ct. 463, 465 (1996)
(noting that an order enforcing an IRS summons is final and appealable).
3
Although both parties refer repeatedly to the summons, neither it, nor the
government’s petition, nor Carney’s answer, has been transmitted as part of the
record on appeal. Inasmuch as both parties rely on these documents in their
arguments, we have sua sponte supplemented the record on appeal to correct the
parties’ apparent oversight in record designation. See Cox v. United States, 881
F.2d 893, 894 n.1 (10th Cir. 1989); see also Fed. R. App. P. 10(e).
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government filed a petition in the United States District Court for the District of
Kansas to enforce the summons. Carney’s counsel filed an answer to the petition
which stated that Carney “invokes his Fifth Amendment privilege against self-
incrimination, and asserts that for him to disclose the information sought by the
IRS would expose him to prosecution for a tax crime.” Appellee’s Br. at 4. The
case was referred to a magistrate judge, who recommended that the summons be
enforced. R. Vol. I, Tab 9. On the same day, the district court adopted the
magistrate judge’s recommendation. Id., Tab 10. Carney then filed objections to
the magistrate judge’s recommendation, and he also filed a motion for
reconsideration. Id., Tabs 11, 12. In those filings, Carney did not contest any of
the court’s factual findings, but rather he asserted errors in legal interpretation
respecting his claim of a Fifth Amendment privilege against self incrimination,
and he complained that the government was engaged in a “fishing expedition.”
On April 7, 1998, the district court specifically rejected Carney’s blanket Fifth
Amendment claim and denied his motion for reconsideration. Id., Tab 16.
DISCUSSION
We review the district court’s order enforcing the IRS summons for clear
error. United States v. Coopers & Lybrand, 550 F.2d 615, 620 (10th Cir. 1977);
see also United States v. Saunders, 951 F.2d 1065, 1066 (9th Cir. 1991). As
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noted, Carney did not object to the magistrate judge’s factual findings which the
district court adopted regarding the government’s prima facie showing below.
Therefore, although he advances certain arguments on appeal related to whether
the government followed the appropriate administrative steps, we deem those
arguments waived. Walker v. Mather (In re Walker), 959 F.2d 894, 896 (10th
Cir. 1992). Thus, the only point which Carney has properly preserved for our
consideration is whether, and to what extent, he is entitled to invoke a Fifth
Amendment right against self-incrimination.
In a very similar case involving an IRS administrative summons, we held
that a taxpayer may not claim a Fifth Amendment privilege against self
incrimination through a generalized, blanket assertion. United States v. Schmidt,
816 F.2d 1477, 1482 (10th Cir. 1987); accord United States v. Argomaniz, 925
F.2d 1349, 1353 n.8, 1356 (11th Cir. 1991). Rather, to properly invoke the
privilege, the taxpayer must comply with the summons by appearing and by
asserting the privilege on a document-by-document basis. Schmidt, 816 F.2d at
1482. Moreover, assertion of the privilege is personal to the taxpayer and may
not be properly invoked by taxpayer’s counsel. Id. at 1481 n.3. Accordingly, we
conclude that the district court properly rejected Carney’s blanket assertion of his
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Fifth Amendment privilege.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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