                                                                           FILED
                               NOT FOR PUBLICATION                          AUG 24 2010

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



STEVEN A. SEARS,                                 No. 08-56899

      Petitioner - Appellee,                     D.C. No. 8:08-cv-00769-DOC-
                                                 MLG
 v.

UNITED STATES OF AMERICA,                        MEMORANDUM *

      Respondent - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                        Argued and Submitted June 11, 2010
                               Pasadena, California

  Before: GOODWIN, RAWLINSON, Circuit Judges, and BENNETT, District
                           Judge.**




       The United States appeals an order, in proceedings pursuant to 26 U.S.C.

§ 7609, quashing those parts of IRS summonses to third-party financial institutions

       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
              The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
seeking client-identifying information in accounts of Steven A. Sears, an attorney

and certified public accountant. The summonses were issued as part of a criminal

investigation of Sears’s tax liabilities for 2002 through 2007. The district court

held that clients’ names were irrelevant to the IRS’s investigation and that

disclosing them would be “tantamount” to revealing privileged communications.

We reverse and remand.

      1.     In this case, the IRS did not receive name-redacted copies of the

requested records, the IRS could not yet determine whether there were

discrepancies between the records and the tax returns, and the district court did not

perform any in camera examination of the unredacted records to determine the

relevance of the clients’ names. Compare David H. Tedder & Assocs., Inc. v.

United States, 77 F.3d 1166, 1168-69 (9th Cir. 1996). In these circumstances, “the

Service can hardly be expected to know whether [clients’ names] will in fact be

relevant until they are procured and scrutinized.” United States v. Arthur Young &

Co., 465 U.S. 805, 814 (1984).

      Thus, the district court clearly erred in concluding that clients’ names were

irrelevant to the IRS’s investigation. Tedder, 77 F.3d at 1168 (review of IRS

summons enforcement decisions is for clear error).




                                          2
      2.     This court reviews de novo the applicability of the attorney-client

privilege. United States v. Wiseman, 274 F.3d 1235, 1244 (9th Cir. 2001). “It is

well-settled that there is no privilege between a bank and a depositor.” Reiserer v.

United States, 479 F.3d 1160, 1165 (9th Cir. 2007) (citing Harris v. United States,

413 F.2d 316, 319-20 (9th Cir. 1969)). More importantly, for present purposes,

“there is no confidentiality where a third party such as a bank either receives or

generates the documents sought by the IRS.” Id. The limited exception to this

rule, where disclosure of clients’ identities “would convey information tantamount

to a confidential communication,” United States v. Blackman, 72 F.3d 1418, 1424

(9th Cir. 1995), does not apply.

      We reverse and remand with instructions to grant the IRS’s Motion To Deny

Petitioner’s Petition To Quash And Declaration Of IRS Agent In Support Thereof

in its entirety, to deny Sears’s Petition To Quash Summonses in its entirety, and to

enforce the IRS’s summonses in their entirety.

      REVERSED AND REMANDED.




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