               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 15-1285

                        FRANK GANGI, et al.,

                     Petitioners, Appellants,

                                    v.

                            UNITED STATES,

                       Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                                 Before

                     Thompson, Circuit Judge,
                   Souter, Associate Justice,*
                   and Kayatta, Circuit Judge.


     Joseph A. DiRuzzo, III, with whom Fuerst Ittleman David &
Joseph, PL was on brief, for appellants.
     Robert W. Metzler, Attorney, Tax Division, Department of
Justice, with whom Caroline D. Ciraolo, Acting Assistant Attorney
General, John Schumann, Attorney, Tax Division, Department of
Justice, and Carmen M. Ortiz, United States Attorney, were on
brief, for appellee.


                            March 30, 2016



     * Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
             Per Curiam.    Frank Gangi and several of his companies

(collectively, "Gangi") petitioned to quash summonses issued by

agents of the Internal Revenue Service conducting investigations.

Applying Sugarloaf Funding, LLC v. U.S. Dep't of the Treasury, 584

F.3d 340 (1st Cir. 2009), the district court denied the petitions

without an evidentiary hearing and entered an order enforcing the

summonses.    Thereafter, the Supreme Court decided United States v.

Clarke, 134 S. Ct. 2361 (2014).           Gangi then claimed that Clarke

altered the law previously applied in this circuit defining the

right   of   an   objecting    taxpayer    in   Gangi's   position   to    an

evidentiary hearing to question IRS agents.           For that reason he

moved for relief under Federal Rule of Civil Procedure 60(b)(5) on

the ground that it would be inequitable going forward to apply the

district court's order denying the petitions to quash without

allowing examination in open court of the agents involved.                See

Fed. R. Civ. P. 60(b)(5) ("[T]he court may relieve a party . . .

from a final . . . order . . . [if] . . . applying it prospectively

is no longer equitable.").      The district court denied the motion,

and Gangi appealed.

             The district court did not abuse its discretion in

determining that it could equitably apply its pre-Clarke order in

a post-Clarke world.       See United States v. Kayser-Roth Corp., 272

F.3d 89, 100 (1st Cir. 2001) (Rule 60(b)(5) denials are reviewed

for abuse of discretion).        For purposes of Gangi's case, Clarke


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did not materially change the law applied here.       Clarke explained

that a taxpayer has a right to examine IRS agents about the reasons

for issuing a summons only when "he points to specific facts or

circumstances plausibly raising an [implication] of bad faith,"

134 S. Ct. at 2365; that is, only when he "offer[s] some credible

evidence   supporting   his   charge,"    id.   at   2367.     This   is

substantially consistent with the standard set forth in Sugarloaf,

that the taxpayer "must allege specific facts and evidence to

support" an allegation that the summons was issued in bad faith.

See 584 F.3d at 346 (quoting Sterling Trading, LLC v. United

States, 553 F. Supp. 2d 1152, 1156 (C.D. Cal. 2008)).        Sugarloaf's

specific evidence tending to rebut good faith is the practical

equivalent of Clarke's specific facts and circumstances plausibly

suggesting bad faith.   And while Clarke was explicit that an offer

of circumstantial evidence could suffice, nothing in Sugarloaf so

much as hinted otherwise. There is consequently no reason to doubt

the equity of applying the district court's original order based

on Sugarloaf together with the finding that Gangi had failed to

refer to any specific available evidence tending to rebut the IRS's

prima facie showing of proper purpose.

           The denial of Gangi's Rule 60(b)(5) motion is AFFIRMED.




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