United States of America and Lyman M. Nicoll, Internal Revenue Agent v. W. Vaughn Ellsworth

This matter is before us on the Government’s appeal from a district court order enforcing an Internal Revenue Service summons but attaching conditions thereto, and on cross-appeal by the custodian of the records.

W. Vaughn Ellsworth is allegedly the custodian of certain corporate records of ■Sonel Research and Development, Inc., an Arizona corporation. In 1970, the Internal Revenue Service sought to subpoena those records for the purpose of determining the correctness of the corporation’s 1968 income tax return. Acting under 26 U.S.C. § 7602 (2), a summons was issued by the Secretary of the Treasury directing Ellsworth to appear on a certain date, bring with him specified corporate documents, and “give testimony relating to the tax liability” of the corporation.

Ellsworth did not appear and the Internal Revenue Service filed a petition in the district court to judicially enforce the summons under 26 U.S.C. § 7604 . A show cause order was issued, a hearing held, and an order issued, the relevant parts of which are quoted in the margin. The Government appeals from that portion of the order restricting its inquiry concerning matters other than the whereabouts of the records.…