Supreme Court Grants Cert in Polselli on Issue of a Collections Summons to Third Party Requires Notice to Taxpayer (12/10/22)

The Supreme Court granted the petition for writ of certiorari in Polselli v. IRS (Sup. Ct. Case No. No. 21-1599).  The opinion of the Sixth Circuit in the case is at Polselli v. Dept. of Treasury, 23 F.4th 616 (6^th Cir. 2022), GS here.  The Order granting cert is dated December 9, 2022, here.  The documents are not consistent as to the case name, but I infer that the case name is Polselli v. IRS as stated on the docket here.  See discussion in the Note at the end of this blog.

The question presented in the petition is (with introduction) (Pet p. i):

            The Internal Revenue Code generally requires the IRS, when it serves a summons on a third-party recordkeeper for records pertaining to a person “identified in the summons,” to give that identified person notice of the summons. I.R.C. § 7609(a)(1). If the IRS issues a summons directing a bank to produce an accountholder’s records, for example, it must generally notify that accountholder of the summons. Section 7609 then provides that “any person who is entitled to notice of a summons under subsection (a) shall have the right to begin a proceeding to quash” that summons in district court. Id. § 7609(b)(2); see id. § 7609(h)(1). In other words, only a person entitled to notice of a summons can seek judicial review of that summons.

            There are a few exceptions to the notice requirement. As relevant here, the IRS need not provide notice of “any summons … issued in aid of the collection of (i) an assessment made or judgment rendered against the person with respect to whose liability the summons is issued; or (ii) the liability at law or in equity of any transferee or fiduciary of any person referred to in clause (i).” Id. § 7609(c)(2)(D).

            The question presented is whether the § 7609(c)(2)(D)(i) exception applies only when the delinquent taxpayer owns or has a legal interest in the summonsed records (as the Ninth Circuit holds), or whether the exception applies to a summons for anyone’s records whenever the IRS thinks that person’s records might somehow help it collect a delinquent taxpayer’s liability (as the Sixth Circuit, joining the Seventh Circuit, held below).

JAT Notes:

1.  Case Name: The documents indicate different case names as follows:

a.     Polselli v. IRS [or] Internal Revenue Service: the SG’s Brief in Opp, the Order granting cert, and the docket identify the case as Polselli v. IRS. 

b.     Polselli v. Dept. of Treasury: The petition and  reply and an amicus brief identify the case as Polselli v. United States Department of Treasury. 

2.  The issue seems to turn upon statutory construction, rather than constitutional or, thankfully, APA considerations. The Government argued that the issue was infrequently presented in the real world of IRS enforcement.  (Brief in Opp. 21-22.)  Thus, it appears that the Supreme Court cannot do much damage here, whichever way it resolves the issue of statutory construction. (Although, I suppose, the court might have to reach into extra-textual considerations such as statutory purpose and legislative history to hold for Polselli.)