Whether 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the privacy rights of non-party clients not under the purview of section 7609. 1 OPINIONS BELOW The Eleventh Circuit’s unpublished opinion (Pet. App. 1-16) is available at 741 F. App’x 764 (11th Cir. 2018). The Southern District’s unpublished opinion (Pet. App. 17-20) is available at 2017 U.S. Dist. LEXIS 127208 (S.D. Fla., Aug. 9, 2017). STATEMENT OF JURISDICTION On August 9, 2017, the Southern District dismissed BMP Family Limited Partnership and Presley Law and Associates P.A.’s motion to quash summonses directed to Bank of America. BMP and Presley Law appealed the order on August 11, 2017, and the Eleventh Circuit affirmed the dismissal on November 1, 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) revd in part on other grounds 41 F. 3d 1396 (10th Cir. 1994), 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 to give notice and a hearing to a bank’s customers. USCS Supreme Ct R 10(a), (c). 2 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. 7 The pertinent text of the Right to Financial Privacy Act, 12 U.S.C. §§ 3401-3422 is reproduced at Pet. App. 16. Florida’s Constitutional Right to Privacy, found in Article I, Section 12, is reproduced at Pet. App. 22. STATEMENT OF CASE BMP and Presley Law petitioned the Southern District to quash summonses issued under 26 U.S.C. § 7609. Pet. App. 3. They did not object to the production of accounts containing only their financial information. Pet. App. 1. 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. 1. BMP and Presley Law argued that their non-party clients had a Fourth Amendment right grounded in Florida’s Right to Privacy. Pet. 1. The non-party clients are not part of any investigation or audit, and did not receive notice. Pet. App. 6. The Southern District dismissed the petition on grounds of collateral estoppel as the matter had been decided in Presley v. United States, 895 F. 3d 1284 (11th Cir. 2018) and as 26 U.S.C. 7609(f) does not apply. Pet. App. 4-6. Appealing to the Eleventh Circuit, BMP and Presley Law argued that Florida’s constitutional right to privacy creates a subjective, reasonable expectation of privacy over financial records 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. 1. They also asserted that 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 obtain such records, a hearing must occur under 26 U.S.C. § 7609(f). Pet. App. 1. 3 The United States argued that the Internal Revenue Service (“IRS”) complied with Powell test as to BMP and Presley Law, and that the non-party clients do not have a subjective, reasonable expectation of privacy as the records belong to the bank and not the clients. Pet. App. 2. It also argued that Tiffany Fine Arts was inapp