Jose

The Internal Revenue Service (IRS) appeals from the district court’s order conditionally enforcing two IRS summonses served on Laddie F. Jose (Respondent) as trustee of the Jose Business Trust and Jose Family Trust. The condition requires the IRS Examination Division to give Respondent five days notice prior to transferring the summoned documents to any other division within the IRS, including the Criminal Investigation Division. This court initially dismissed the appeal as not yet ripe. The Supreme Court reversed and remanded for this court to consider the merits. We decided sua sponte to consider the merits of this case en bane. We have jurisdiction pursuant to 21 U.S.C. § 1291 and we reverse.

I.

This case arose when Leslie M. Nishimura (Nishimura), Revenue Agent of the IRS, commenced a civil tax investigation of the Jose Business Trust and Jose Family Trust for the tax years 1990 and 1991. In furtherance of the investigation, Nishimura sought to review certain trust documents in the possession of the Respondent. Respondent submitted these documents to Nishimura but restricted him from photocopying or disclosing their contents to anyone else without his permission. Nishimura…

dissenting:

I agree with Judge Hawkins that we should not overrule the line of cases that *1330 upheld district courts’ discretion to impose conditions on the interagency transfer of information. See United States v. Abrahams, 905 F.2d 1276 (9th Cir.1990); United States v. Zolin, 809 F.2d 1411 (9th Cir.1987), and United States v. Author Services, 804 F.2d 1520 (9th Cir.1986). Unlike Judge Hawkins, however, I do not concur in the end result that the majority reaches.

The district court, which was fully familiar with the history of the case and the parties, allowed the IRS Examination Division to transfer the summonsed documents to other divisions in the IRS, provided that the Examination Division gave Respondent five days’ advance notice of such transfer. The district court’s condition was de minimis, and was imposed only to ensure that the IRS would not abuse the court’s process. Compare United States v. Barrett, 837 F.2d 1341, 1350 (5th Cir.1988) (en banc) (affirming district courts’ discretionary authority to “ensurfe] that the government has complied with the four Powell criteria, and that its process is not being abused.”).

For a long time we have recognized that “[t]he…

concurring in part and dissenting in part:

At a time when there is unprecedented concern about excessive enforcement efforts by tax collectors, 1 the majority removes a critical protection enjoyed by taxpayers: the discretionary authority of district court judges to place reasonable limits on what government may do with information it gathers from citizens. At the same time, the decision may also have the perverse effect of limiting some legitimate enforcement efforts, by forcing district courts to refuse summons enforcement in close cases. No longer will district judges, who are in a unique position to consider and balance the legitimate concerns of taxpayers against the proper needs of government for information about taxpayers, have the option of conditioning summons enforcement to ensure that the gathered information will be carefully and prudently used.

By shearing district court judges of this important option, we lessen the ability of the first line of defense against the potential of overreaching government action. This is all the more unfortunate on these facts because, as the government admitted at argument and as the majority acknowledges in footnote 2, it is simply…