                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                 UNITED STATES COURT OF APPEALS
                          FIFTH CIRCUIT                      January 10, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 06-20466
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                        ROBERT M. BATTLE,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (4:05-MC-00520)


Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     For this pro se appeal from the district court’s enforcement

of two Internal Revenue Service summonses, Dr. Robert M. Battle

asserts they were invalid and unenforceable.    He also contends the

district court exceeded its authority by holding him in civil

contempt for not complying with the enforcement order.

     Dr. Battle, a licensed physician, practices in Houston, Texas.

In July 2005, the IRS served him summonses alleging: (1) for the

taxable years 1994 through 1998, Dr. Battle filed invalid returns,

     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
as a result of which the IRS determined and assessed liabilities

exceeding $600,000; and (2) for the taxable years 1999 through

2004, Dr. Battle failed to file any returns.         Dr. Battle appeared

in response to these summonses but failed to produce the required

information.

     The IRS petitioned the district court for enforcement of the

summonses.    A hearing was scheduled for 6 January 2006.        Prior to

the hearing, Dr. Battle filed a number of challenges to the

validity of the summonses.          At the hearing, Dr. Battle: (1)

disputed the IRS’ calculation of the assessed amounts for 1994

through 1998 and claimed he was in the process of preparing returns

in support of that dispute; and (2) stated he was in the process of

preparing returns for the years 1999 through 2004.

     The district court ordered Dr. Battle to return on 20 January

2006 with an accountant or attorney to articulate his challenges to

the summonses and provide the requested information.            The court

suggested that, as a good-faith measure, Dr. Battle pay 70% of the

liabilities    assessed   against   him.   (Dr.   Battle   challenged   the

voluntary payment aspect of the order with a petition for writ of

mandamus, asking our court to prohibit the district court from

enforcing the order; the order was improperly filed and was not

received by our court.)

     On 20 January 2006, Dr. Battle appeared in district court with

an accountant, but without any documentation related to the 1994-


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1998 assessment.   The district court entered an enforcement order

and required Dr. Battle to appear later that day with the required

documentation.

     Upon   returning   that   afternoon,   Dr.   Battle   answered   some

questions regarding his tax status but still refused to produce any

evidence responsive to the summonses.        Instead, he asserted his

rights under the Fifth Amendment, claiming he should not be forced

to produce incriminating documents.     The district court, in ruling

the document production would not be incriminating, determined that

Dr. Battle did not have a valid Fifth Amendment claim.         The court

held Dr. Battle in contempt of the enforcement order and ordered

him in custody, until he produced documents responsive to the

summons.    On 23 January, Dr. Battle’s associate produced the

necessary documentation. As a result, the civil contempt order was

vacated, and Dr. Battle was released.

     The first issue to address is whether Dr. Battle’s notice of

appeal sufficiently shows he is appealing from the contempt and the

enforcement orders.      The somewhat erroneous notice of appeal

indicates he is appealing both.     Smith v. Barry, 502 U.S. 244, 248

(“While the requirements of Rule 3(c) are jurisdictional ...

court’s construe a notice of appeal liberally to avoid technical

barriers to review); see FED. R. APP. P. 3(c)(4).     Additionally, any

technical error in the notice of appeal does not bar review of the

claim because the Government has not shown it was “prejudiced or


                                   3
misled by the mistake”.     Morin v. Moore, 309 F.3d 316, 321 (5th

Cir. 2002) (internal citations omitted).

     Section 7602 of the Internal Revenue Code authorizes the IRS

to summon an individual or third party to testify and produce

documents relevant to an inquiry regarding tax liability.         26

U.S.C. § 7602.      Should the taxpayer or third party refuse to

produce the required information, the IRS may petition the district

court to compel compliance with the summons.     26 U.S.C. § 7402(a)

& (b).      In order to obtain enforcement of an administrative

summons, the IRS must satisfy the requirements in United States v.

Powell, 379 U.S. 48, 57-58 (1964):     (1) the investigation is being

conducted for a legitimate purpose; (2) the inquiry is relevant to

that purpose; (3) the requested information is not within the IRS’

possession; and (4) the administrative steps required by the

Internal Revenue Code have been followed.     Based on our review of

the record, the IRS has done so.   Accordingly, the burden shifts to

Dr. Battle:     (1) to show the Government has failed to meet its

burden under Powell; (2) to assert and prove that enforcement would

constitute an abuse of the court’s process; or (3) to show any

other appropriate ground under which the summons should not be

enforced.     See United States v. Huckaby, 776 F.2d 564, 567 (5th

Cir.) (internal citations and quotations omitted), cert. denied,

475 U.S. 1085 (1986).




                                   4
     Dr. Battle makes a number of challenges to the enforcement

order.    First, Dr. Battle asserts the issuance of the summonses

were not for a legitimate purpose because they were issued solely

for the purpose of gathering evidence for a criminal prosecution.

“The burden of proving that the IRS, as an institution, has

abandoned any pursuit of [a] taxpayer’s civil tax liability, is a

heavy    one,   requiring   the   taxpayer     to   prove    an    extraordinary

departure from IRS’ established procedure.”                 Miami Springs, 655

F.2d at 665. (internal citations and quotations omitted).                     Dr.

Battle offers no evidence in support of his claim;                instead, he was

told repeatedly throughout the proceedings that he was not the

target of any criminal investigation. His bald assertions, without

more, are not sufficient.

     Second, Dr. Battle challenges the validity of the assessments

the Government is attempting to collect.             Specifically he claims

the summonses are void because the Government:                      (1) has not

produced evidence of any income tax due; (2) has failed to produce

evidence of an existing tax liability; and (3) did not adequately

notify him of the assessments for years 1994 through 1998.                     A

summons-enforcement     action    is    not   the   appropriate       forum   for

challenging the validity of an assessment.             See United States v.

Harper, 662 F.2d 335, 336 (5th Cir. 1981).                     Instead, in an

enforcement proceeding, the Government need only show that the

Powell factors have been met.          Id.    As noted, the Government has


                                       5
satisfied that burden.       Therefore, Dr. Battle’s challenges to the

assessments underlying the summonses fail.

     Third,   Dr.   Battle    claims       that   he   was   not   afforded   an

administrative hearing before the summonses were issued, rendering

them premature.      Though appropriate in some circumstances, a

taxpayers right to such a hearing is not absolute.                   See United

States v. Harris, 628 F.2d 875, 879 (5th Cir. 1980).               To obtain the

hearing, a taxpayer must show “in a substantial way the existence

of substantial deficiencies in the summons proceedings.”                      Id.

(internal citations omitted).      Dr. Battle failed to do so.

     Fourth, Dr. Battle asserts that the IRS did not follow proper

internal procedures.   Specifically, he complains the IRS:              (1) did

not to comply with the Privacy Act of 1974; (2) engaged in taxpayer

harassment, in contravention of 26 U.S.C. § 6304, the fair tax

collection practices section of the Internal Revenue Code; and (3)

failed to respond to his numerous correspondences.                  None of Dr.

Battle’s claims bar the enforcement action.                  Contrary to his

assertions, compliance with the Privacy Act is not a prerequisite

to issuance of an IRS summons.         See United States v. McAnlis, 721

F.2d 334, 336 (11th Cir.), cert. denied, 467 U.S. 1227 (1984).                 In

addition, a review of the record shows the Government did not

engage in any harassment or abusive behavior.            Finally, Dr. Battle

does not provide any details about correspondences to which the

Government allegedly failed to respond, nor does he provide any


                                       6
legal basis why such actions should bar his enforcement action. See

generally, Powell, 379 U.S. at 55-57 (detailing the requirements

for an enforcement action).

     Next, Dr. Battle asserts the Government failed to allow a

collection due-process hearing regarding the assessed liabilities,

as required by 26 U.S.C. §§ 6330(b) and 6320(b).     As the Government

notes, however, Dr. Battle told the district court a due-process

hearing was already set for February 2006.         The fact that the

hearing had yet to have taken place at the time the district court

ordered the enforcement action does not bar the order.

     Finally, Dr. Battle asserts the order holding him in civil

contempt and serving a subpoena duces tecum on Jane Clifford was in

violation of his Fifth Amendment rights protecting against the

compelled production of records.       Dr. Battle failed to brief this

claim, and therefore, has effectively abandoned it.       See Yohey v.

Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

                                                           AFFIRMED




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