Biggs, Chief Judge, and Kalodner and Ganey, Circuit Judges.
This is an appeal from an order entered by the court below in an action authorized by Sections 7402 and 7604 of the 1954 Internal Revenue Code in connection with the examination of the income tax returns of John A. Howard, the defendant-appellant, president of Langley-Howard, Inc., and his wife Margaret L. Howard for the years 1956 to 1959, inclusive. The order appealed from requires Howard to comply with a summons issued and served upon him by Special Agent William W. Ankrom, Intelligence Division, Internal Revenue Service, requiring him to produce certain books and records of Langley-Howard, Inc. On some date which does not appear in the record, the books and records of the Howards for the years 1956 and 1957 were examined and a refund was made for one of these two years.*fn1,*fn2
On August 15 1962, a letter was written by Robert D. McDowell, Acting Regional Commissioner of the Internal Revenue Bureau, addressed to the Howards informing them that "It is deemed necessary before finally closing your income tax case to make a reinvestigation of your books and records for the years 1956 and 1957 in order to properly verify your returns for these years. A re-examination, therefore, will be made. * * * This notice is sent in compliance with Section 7605(b) of the Internal Revenue Code of 1954."*fn3 Acting Regional Commissioner McDowell's letter of August 15 was delivered by Agent Ankrom to Howard on August 16, and at the same time Agent Ankrom served on Howard as president of Langley-Howard, Inc., a summons, "Form 2039", issued pursuant to Section 7602 of the Internal Revenue Code of 1954, requiring him to appear and produce on August 29, 1962, certain books and records of Langley-Howard, Inc., pertaining to the years 1956, 1957, 1958 and 1959. A copy of the summons, marked "Exhibit A", is attached to the complaint in the suit at bar. On August 16, 1962, an investigation of Langley-Howard's books and perhaps also a criminal proceeding was pending in the court below against Howard and Langley-Howard, Inc., for violation of the "Securities Act of 1933" for certain transactions which had taken place in respect to the stock of "Universal Fuel and Chemical Corporation."*fn4 Agent Ankrom's own testimony makes clear that at the time the summons was served on Howard to produce the books and records of Langley-Howard, Inc., he knew that the books and records sought to be subpoenaed were not in Howard's possession or in the possession of Langley-Howard, Inc., but were actually in the office and the custody of the United States Attorney for the Western District of Pennsylvania. It is not clear from the record how long the Langley-Howard, Inc. books and records were in the possession of the United States Attorney or in his office, but it is clear that they were there for some months and it appears also, according to Agent Ankrom's own testimony, that he inspected them there.*fn5
On August 28, 1962, Howard filed an application to the court below alleging that the summons was served for improper purposes; i. e., to permit the United States to secure further evidence in the pending criminal case and to annoy and harass him. Howard also asserted as a further reason for quashing the summons that a previous examination of his returns had been made and that another examination was prohibited by Section 7605(b) of the Internal Revenue Code, 26 U.S.C. Section 7605(b). The court below quashed the summons insofar as it related to the "reinvestigation for the years 1956 and 1957" but, in substance, upheld the summons insofar as it related to the years 1958 and 1959. See Application of Howard, 210 F. Supp. 301 (1962), at Misc. No. 3024 in the court below. On appeal this court held that the application for enforcement which named no defendant, stated no basis of jurisdiction and asked for no judgment against anyone was not in accordance with the Federal Rules of Civil Procedure, 28 U.S.C., restricting original civil proceedings in a United States district court to a single form of action commenced by a complaint, naming parties, stating the basis of jurisdiction and demanding specified relief against a designated person. This court reversed the judgment and remanded the case with instructions to dismiss the application. See id., 325 F.2d 917 (1963). Our mandate issued on January 22, 1964. No application for certiorari was made to the Supreme Court.
Thereafter, on January 29, 1964, Agent Ankrom "handed" Howard a letter signed by District Director John H. Bingler, by Cresson O. Davis, Chief, Intelligence Division, addressed to "Langley Howard, Incorporated; Attention John A. Howard, President; In re: John A. and Margaret L. Howard, Pittsburgh, Pennsylvania". This letter, after referring to the summons, "Form 2039", previously served, as has been said by Agent Ankrom on August 16, 1962, states that "for your information there is enclosed a certified photocopy of this Summons", and goes on to say: "By a decision rendered December 23, 1963, in Case No. 14,272, the United States Court of Appeals for the Third Circuit * * * reversed the judgment of the District Court, Pittsburgh, Pennsylvania, and thereby voided the quashing of this Summons by Judge Dumbauld. The Mandate by the Court of Appeals to the District Court was issued January 22, 1964. * * You are required, therefore, to comply with the above described Summons by 10:00 A.M. of Wednesday, February 12, 1964."
Neither Howard nor Langley-Howard, Inc., complied with the copy of the summons handed to him with District Director Bingler's letter by Agent Ankrom on January 29, 1964. As a result Civil Action No. 64-450 was instituted in the court below on May 8, 1964. The complaint, then before that court at its No. 64-450 Civil Action, and sub judice here, was filed against "John A. Howard, President, Langley-Howard, Inc." and alleged that Ankrom had been conducting an investigation of the tax liabilities of the Howards for the taxable years 1956 to 1959 inclusive; that in connection with this investigation "a summons was served" pursuant to Sections 7602 and 7603 of the Internal Revenue Code of 1954, 26 U.S.C. Sections 7602 and 7603, upon Langley-Howard, Inc., through its president, Howard; that the "summons" was served on the defendant by Ankrom, describing and designating the books and records of Langley-Howard, Inc. which were to be produced "on August 29, 1962."
The complaint then refers briefly to the proceedings at Misc. No. 3024 in the court below and in this court at our No. 14,272, hereinbefore referred to and reported respectively, as we have stated, at 210 F. Supp. 301 and 325 F.2d 917; sets out the delivery of Bingler's letter on January 29, 1964, by Ankrom with a photocopy of the summons served on August 16, 1962, together with a copy of Bingler's letter of January 29, 1964, stating that the return date of the "summons" was February 12, 1964;*fn6 that Howard appeared with his attorney but refused to comply with the summons; that the summoned material is vital to the continuation of the investigation and examination of the tax liabilities of the Howards, and requests enforcement of the summons. The complaint is accompanied by an exhibit which contains a verbatim interview held when Howard appeared and an affidavit by Ankrom stating that the examination is necessary because of certain alleged dealings by Howard in the acquisition and sale of a substantial number of shares of a certain stock and alleges "possible fraudulent evasion of individual income tax" by Howard.
Howard moved to dismiss the complaint, filed notices of the taking of depositions and interrogatories directed to Ankrom and other persons in the Internal Revenue Service and an answer denying all allegations of the complaint except one, namely, that one of the plaintiffs was the United States of America. On June 9, 1964, a brief pretrial order was entered by the court below, and on June 16 the United States moved to vacate and set aside the applications to take depositions and to require the answering of the interrogatories. On August 8, 1964, the court below fixed a time for hearing the motions by the plaintiffs, the United States and Ankrom, to vacate and set aside or to dismiss the motions filed by Howard, as well as "the demand of the United States for enforcement of summons". On November 17, 1964, an argument was had on the plaintiffs' motions but the court took no action thereon and adjourned awaiting the briefs of the parties.
On December 7, 1964, Howard filed an amended answer alleging that the United States was conducting its investigation for improper purposes to obtain evidence for use in a criminal prosecution; to harass the defendant, and not in good faith; that the books and records had been examined already by the United States during the pendency of the prior proceedings at Criminal Action No. 61-316; and finally, that the issues involved "were substantially litigated" in the criminal action and decided adversely to the plaintiffs. Other motions were made by Howard which need not be related here.
On December 8, 1964, Howard moved for sanctions to compel the United States and Ankrom to appear for the taking of depositions and to answer interrogatories. The plaintiffs filed a supplementary motion to dismiss or to vacate Howard's then latest motion. On December 23, 1964, a hearing was had in the court below and Agent Ankrom appeared as the sole witness. One exhibit was offered in evidence, the letter of August 15, 1962 signed by Acting Regional Commissioner McDowell, hereinbefore referred to. On December 23, 1964, the court below made a verbal order denying Howard's numerous motions. On January 11, 1965, the trial court, without an opinion, decided that the "summons of January 22, 1964," should be enforced. On January 11, 1965, an order was entered adopting the proposed findings and conclusions filed by the United States.*fn7 The appeal at bar followed.
The defendant-appellant, Howard, asserts (1) that there is no sufficient proof in the record that the "Secretary [of the Treasury] or his delegate, after investigation" notified the taxpayer in writing that an additional inspection was necessary; (2) that the court's process was abused when the United States issued a summons to secure information, part of which was available to it for a period of more than ten months in the transcript of the trial at Criminal Action No. 61-316 in the court below, note 5, supra, and finally, (3) that when the United States brings a civil action seeking enforcement of a summons under 26 U.S.C. Section 7602(2) of the Internal Revenue Code of 1954, the party summoned is entitled to avail himself of the Federal Rules of Civil Procedure, 28 U.S.C., including those relating to discovery, to determine whether or not the inspection is justified. The United States, of course, contends to the contrary.
As to Howard's first contention, it should be noted that any re-examination of the books and records of the Howards by the Internal Revenue Service relates to the years 1956 and 1957 only and that their books and records for the years 1958 and 1959, insofar as the record shows, have never been examined. Giving the Howards the benefit of every doubt, however, and assuming that their books and records for the years 1958 and 1959 are inseparable in contents from those for the years 1956 and 1957, we would be required to hold, if the issue were relevant here, that there has been no sufficient showing of a determination by the Internal Revenue Service that reexamination of the books and records of the Howards for the years 1956 and 1957 was "necessary" within the purview of Section 7605(b). Agent Ankrom testified that he recommended the re-examination to his immediate superior, Chief of Intelligence Division Davis, who had the authority to approve the recommendation and to forward it to the Regional Office where higher authority could authorize re-examination. The court below, as trier of the facts, found that the letter of August 15, 1962, Exhibit No. 1, signed by Acting Regional Commissioner McDowell was the result of Agent Ankrom's recommendation to his immediate superior sent forward by the latter to the Acting Regional Commissioner who acted favorably on the request as the "delegate" of the Secretary of the Treasury.*fn8,*fn9
The United States insists that since the letter was issued the presumption of regularity which attends official action is evidence that its issuance was legal, citing inter alia, Stearns Co. of Boston, Mass. v. United States, 291 U.S. 54, 63-64, 54 S. Ct. 325, 78 L. Ed. 647 (1934). But in United States v. Powell, 379 U.S. 48, 57-58, 85 S. Ct. 248, 255, 13 L. Ed. 2d 112 (1964), Mr. Justice Harlan speaking for the Supreme Court stated: "[The Commissioner] must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed -- in particular, that the 'Secretary or his delegate,' after investigation, has determined the further examination to be necessary and has notified the taxpayer in writing to that effect." There is no evidence that the Acting Regional Commissioner made any ...