United States v. Richard W. (Dick) Rylander, Sr.

This is an appeal from an order holding Rylander in civil contempt for failure to comply with an IRS summons. The court below ordered Rylander incarcerated until he produces the records described in the summons or testifies as to why he cannot do so. Rylander appeals pursuant to 28 U.S.C. § 1826 (b) and 28 U.S.C. § 1291 . We hold that the government has not met its burden of proving that Rylander has the specified records, and we reverse and remand.

I

FACTS

These contempt proceedings arose out of an IRS attempt to investigate the tax liability of two corporations, Rylander and Company Realtors, Inc., and Affiliated Investments and Mortgage Company. The IRS issued a summons to Richard W. Rylander, Sr., as president of the corporations, ordering him to testify and to produce certain records of the corporations. The IRS petitioned the district court for judicial enforcement of the summons, I.R.C. §§ 7602, 7604(b), and on November 19, 1979 the district court issued an order to show cause why the summons should not be enforced.

*1316 A show cause hearing was scheduled for January 14, 1980, and Rylander was duly served with notice. Rylander did not appear at the hearing, nor did he…

concurring.

I believe the majority decides, unnecessarily, a novel Fifth Amendment question, yet fails to address squarely a nonconstitu-tional issue that I believe is dispositive of this appeal.

I agree with the majority that the defendant carries the initial burden of production on the issue of his inability to comply with a summons to produce documents, which, as the majority notes, is a defense to a charge of civil contempt. I also agree that once this initial burden is met, the government has the ultimate burden of persuading the court that the defendant is able to comply.

Where I have difficulty with the majority is its failure to analyze whether Rylander’s sworn statements were sufficient to meet his burden of production. The majority gives Rylander credit for nothing more than a general denial that he had any of the records called for by the summons, when in fact his response was much more detailed. In his oath of purgation, Rylander stated:

In my view, such a detailed statement denying under oath knowledge of the location of any such records or that any such records are in his possession or control should be sufficient to put into issue defendant’s “inability to…

656 F.2d 1313 81-2 USTC P 9662 UNITED STATES of America, Plaintiff-Appellee, v. Richard W. (Dick) RYLANDER, Sr., Defendant-Appellant. Nos. 80-4594, 80-4595. United States Court of Appeals, Ninth Circuit. Submitted Feb. 17, 1981. Decided Sept. 4, 1981. Joseph F. Harbison, III, Mandich, Clark & Barker, Sacramento, Cal., for defendant-appellant. Michael L. Paup, Charles E. Brookharl, Washington, D.C., for plaintiff-appellee. Appeal from the United States District Court for the Eastern District of California. Before WALLACE, FLETCHER and NORRIS, Circuit Judges. FLETCHER, Circuit Judge: 1 This is an appeal from an order holding Rylander in civil contempt for failure to comply with an IRS summons. The court below ordered Rylander incarcerated until he produces the records described in the summons or testifies as to why he cannot do so. Rylander appeals pursuant to 28 U.S.C. § 1826 (b) and 28 U.S.C. § 1291 . We hold that the government has not met its burden of proving that Rylander has the specified records, and we reverse and remand. 2 * FACTS 3 These contempt proceedings arose out of an IRS attempt to investigate the tax liability of two corporations, Rylander and…