United States of America and Marshall P. Jennings, Revenue Agent, Petitioner v. Donald R. Huene and Annette S. Huene

Taxpayers were summoned by the Internal Revenue Service to appear for a tax audit, pursuant to 26 U.S.C. § 7602 (1982). They agreed to appear, but only on condition that they be permitted to videotape the proceedings. The Revenue Agent refused to proceed on those terms, and the Service obtained an order from the district court requiring taxpayers to comply with the summons without videotaping the audit. Taxpayers appeal from that order.

Taxpayers concede that they have no constitutional right to videotape the audit. They rely entirely on Mott v. MacMahon, 214 F.Supp. 20, 22 (N.D.Cal.1963), which allowed taxpayers to bring their own certified court reporter to an audit, while noting that the propriety of including or excluding such a reporter must depend upon a case by case consideration.

The difficulty with taxpayers’ position is that the Service has accepted the ruling in Mott , and its manual provides that taxpayers may ordinarily make audiotape, stenographic or other verbatim recordings of audits. 1 Audit, CCH Internal Revenue Manual, Ch. 4245. It is undisputed that in this case the Service was willing to permit taxpayers to use such methods of recording. Taxpayers contend,…