Whether the court below erroneously held that the issuance of summonses under 26 U.S.C. § 7609 preempts the privacy rights of non-party clients

QUESTION PRESENTED The issue is whether the court below erroneously held that the issuance of summonses under 26 U.S.C. § 7609 preempts the privacy rights of non-party clients not under the purview of section 7609. 1 OPINIONS BELOW The Eleventh Circuit’s opinion (Pet. App. 1-16) is reported at 895 F. 3d 1284 (11th Cir. 2018). The Southern District’s unreported opinion (Pet. App. 17-20) is available at 2017 U.S. Dist. LEXIS 1457 (S.D. Fla., Jan. 4, 2017). STATEMENT OF JURISDICTION On January 5, 2017, the Southern District entered an order dismissing the Presleys’ motion to quash summonses directed to various banks. After authorized motions for reconsideration and stay were denied, the Presleys appealed the order on January 10, 2017. The Eleventh Circuit issued its opinion affirming the dismissal on July 18, 2018, and the Presleys timely petitioned for a panel rehearing on August 17, 2018, which was denied on September 4, 2018. This petition for certiorari seeks the Court’s review under 28 U.S.C § 1254(1) of a court of appeals’ decision that (a) relied upon United States v. Powell, 379 U.S. 48 (1964), which finds no violation of Fourth Amendment rights belonging to party taxpayers when a summons complies with a test directed at the party, to decide upon an important question of law not settled, but should be, by the Court: (b) conflicts with Katz v. United States, 389 U.S. 347 (1967), which enhances a state’s authority to create rights of privacy; and (c) conflicts with the Tenth Circuit in Neece v. IRS, 922 F. 2d 573 (10th Cir. 1990), which finds that the Right to Financial Privacy Act (“Act”) is not preempted by the Internal Revenue Code (“Code”) when the Code does not provide procedures. USCS Supreme Ct R 10(a), (c). STATUTORY PROVISIONS The Internal Revenue Code’s provision for Special procedures for third-party summonses, 26 U.S.C. § 7609, is reproduced at Pet. App. 21 The pertinent text of the Right to Financial Privacy Act, 12 U.S.C. §§ 3401-3422 is reproduced 2 at Pet. App. 30. Florida’s Constitutional Right to Privacy, found in Article I, Section 12, is reproduced at Pet. App. 36. STATEMENT OF CASE The Presleys petitioned the Southern District to quash summonses issued under 26 U.S.C. § 7609. Pet. App. 2. The Presleys did not object to the production of accounts containing only their financial information. Pet. App. 3. However, as obligated by the Florida Bar, they sought to prevent disclosure of escrow and trust accounts held by the bank containing finances belonging to their non-party clients. Pet. App. 3. The Presleys argued that their non-party clients had a Fourth Amendment right grounded in Florida’s Right to Privacy. Pet. 18-19. The non-party clients are not part of any investigation or audit, and did not receive notice. Pet. App. 3. The Southern District dismissed the petition upon finding that the summonses satisfied the Powel/test as to the party taxpayers and that the non-party clients did not have Fourth Amendment protection as 26 U.S.C. § 7609 preempts Florida’s Right to Privacy. Pet. App. 3, 19-20. Appealing to the Eleventh Circuit, the Presleys argued that Florida’s constitutional right to privacy creates a subjective, reasonable expectation of privacy over financial records that is not preempted because this is a function reserved to the states, which permits the non-party clients to assert a Fourth Amendment right. Pet. App. 8-12. The United States argued that the Internal Revenue Service (“IRS”) complied with the Powell test as to the Presleys, and that the non-party clients do not have a_ subjective, reasonable expectation of privacy, as the records belong to the banking institution and not the clients. Pet. App. 8-14. In reply, the Presleys asserted that this Court in Tiffany Fine Arts Inc. v. United States, 469 U.S. 310 (1985) would not permit bootstrapping a request for non-party financial records on summonses issued to third parties not under investigation, and that for the United States to obta