
USCA1 Opinion

	




          September 27, 1995                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1277                              UNITED STATES OF AMERICA,                                Petitioner, Appellant,                                          v.                             NANCY GERTNER, ETC., ET AL.,                               Respondents, Appellees.                              _________________________                                      JOHN DOE,                                Intervenor, Appellee.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of this  court issued on September 13,  1995, is          corrected as follows:               On page 18, note 7, line 3   change "he" to "the"                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No.  95-1277                              UNITED STATES OF AMERICA,                                Petitioner, Appellant,                                          v.                             NANCY GERTNER, ETC., ET AL.,                               Respondents, Appellees.                                 ____________________                                      JOHN DOE,                                Intervenor, Appellee.                                 ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Morton A. Brody,* U. S. District Judge]                                            ____________________                                 ____________________                                        Before                          Selya and Boudin, Circuit Judges,                                            ______________                             and Lisi,** District Judge.                                         ______________                                 ____________________               John A. Dudeck,  Jr., Attorney, Tax Division, U.S.  Dep't of               ____________________          Justice,  with   whom  Loretta  C.  Argrett,  Assistant  Attorney                                 ____________________          General, Gary R.  Allen and Charles E.  Brookhart, Attorneys, Tax                   ______________     _____________________          Division, were on brief, for appellant.               Gerald B. Lefcourt,  with whom Sheryl  E. Reich, Lefcourt  &               __________________             ________________  ___________          Dratel, P.C.,  Bruce Maffeo, Bernstein & Maffeo, Thomas E. Dwyer,          ____________   ____________  __________________  ________________          Jr., Jody L. Newman, and Dwyer & Collora were on joint brief, for          ___  ______________      _______________          appellees.               Judith  H. Mizner,  Andrew Good,  Benjamin Fierro,  III, and               _________________   ___________   _____________________          Francis S. Moran, Jr.  on joint brief for Massachusetts  Ass'n of          _____________________          Criminal Defense Lawyers, Massachusetts Bar Ass'n, and Boston Bar          Ass'n, amici curiae.                                 ____________________                                  September 13, 1995                                 ____________________          ____________________           *Of the District of Maine, sitting by designation.          **Of the District of Rhode Island, sitting by designation.                    SELYA,  Circuit Judge.   This  controversy features  an                    SELYA,  Circuit Judge.                            _____________          old-fashioned  tug of  war.   Pulling  in  one direction  is  the          Internal Revenue Service  (IRS) which, for easily  understandable          reasons,  is intent on learning  the identity of  persons who pay          large legal fees in cash.  Pulling in the opposite direction is a          consortium consisting  of two lawyers and  three bar associations          (appearing  as amici  curiae) which,  for  equally understandable          reasons   (fearing   inter   alia  that   disclosure   may   spur                               _____   ____          prosecution), is  intent on safeguarding the  identity of clients          who pay in cash.  In  this case, the parties' positions  hardened          and a stalemate  developed.  The district  court resolved matters          in the lawyers' favor, refusing to enforce IRS summonses designed          to obtain "client identity" information pursuant to section 6050I          of the Internal Revenue Code (I.R.C.), 26 U.S.C.    6050I (1988 &          Supp. V  1993).  See United  States v. Gertner, 873  F. Supp. 729                           ___ ______________    _______          (D. Mass. 1995).   The government appeals.  We  affirm (albeit on          more  circumscribed grounds  than those  enumerated by  the lower          court).          I.  BACKGROUND          I.  BACKGROUND                    Federal  law,  specifically  I.R.C.     6050I  and  its          implementing  regulations, requires  a person  who  receives more          than   $10,000  in  cash  during   a  single  trade  or  business          transaction  to file a form  (IRS Form 8300)  reporting the name,          address,  occupation, and  social security  number of  the payor,          along with the date and nature of the  transaction and the amount          involved.  See I.R.C.    6050I; 26 C.F.R.    1.6050I-1(e) (1995).                     ___                                          3          At  various times in 1991 and 1992, respondents Nancy Gertner and          Jody  Newman, then  partners in  a Boston  law firm,  filed forms          reflecting four  successive payments of  hefty cash  fees to  the          firm by  a single  client.   Each  of the  forms was  essentially          complete  except for  the name  of the  client.   The respondents          advised the  IRS that they were withholding the client's identity          on the basis of  ethical obligations, attorney-client  privilege,          and specified constitutional protections.                    These   filings    sparked   a   lengthy    course   of          correspondence  between  the  law firm  and  the  IRS.   In  that          exchange,  members  of  the  firm attempted  on  at  least  three          occasions  to  determine  whether  the  IRS  wanted  the  omitted          information as part of an investigation focused on the firm or to          learn more  about the unnamed client.   The IRS did  not deign to          answer these inquiries.                    The  parties remained  deadlocked  and  the IRS  issued          summonses purporting to direct the respondents to furnish certain          records  and   testimony  anent  the  client's   identity.    The          respondents declined  to comply.  The government  then brought an          enforcement  action  pursuant to  I.R.C.      7402(a) &  7604(a),          claiming that  it wanted the  information in  connection with  an          investigation  of the  law firm's  tax liability.   On  April 20,          1994, after perusing the complaint and the declaration of Revenue          Agent Sophia  Ameno, the district court issued an order directing          the respondents to show cause why they should not be compelled to          honor the summonses.                                          4                    The   court   permitted   the   client   to   intervene          pseudonymously.   Thereafter, the respondents and  the intervenor          mounted two lines of  defense.  First, they asseverated  that the          IRS's  alleged investigation of the  lawyers was merely a pretext          disguising  its real objective   learning more about the client            and that  the government therefore  should be required  to follow          the   statutory   procedure  for   issuing   summonses  affecting          unidentified third parties.1   See I.R.C.   7609(f).   Second, in                                         ___          concert with the amici they  insisted that various privileges and          protections allow lawyers to  shield their client's identity from          the reach of  such summonses.   The IRS  joined issue,  asserting          that  it  had  employed   the  appropriate  procedure;  that  the          respondents  had   failed  to  show  either   that  the  supposed          investigation  of the law  firm was  a sham  or that  an improper          motive  tainted  the summonses;  and,  finally,  that no  special          protection of any kind attached to the desired information.                    When the day of  decision dawned, the respondents asked          the  district  court to  take  live  testimony.   The  government          opposed the request.  The court eschewed the evidentiary  hearing          that the  respondents sought but nevertheless  refused to enforce                                        ____________________               1Such  a  summons is  known  colloquially  as  a "John  Doe"          summons.   The IRS cannot issue  a John Doe summons    defined by          statute as a  summons "which  does not identify  the person  with          respect to whose liability the summons is issued"   without first          securing  court  approval.   I.R.C.    7609(f).   The  reason for          requiring such approval is obvious:  in the John Doe context, the          court in effect "takes  the place of the affected  taxpayer" who,          being unnamed, cannot  herself be  expected to know  about    let          alone to oppose    the summons even if it  is irregular.  Tiffany                                                                    _______          Fine Arts, Inc. v. United  States, 469 U.S. 310, 321 (1985).   We          _______________    ______________          discuss the mechanics of the preapproval process infra.                                                           _____                                          5          the summonses.  It found as a fact that the IRS's purported probe          of the law firm's  tax-related affairs was a  hoax, and that  the          IRS should have complied  with I.R.C.   7609(f) prior  to serving          the summonses.  See  Gertner, 873 F. Supp.  at 734.  Nor  did the                          ___  _______          court  stop  there;  it  proceeded   to  hold  that,  under   the          circumstances  here  obtaining,  the   attorney-client  privilege          thwarted  the IRS's  demand  for  information  concerning  client          identity.  See id. at 734-37.  This appeal ensued.                     ___ ___          II.  ANALYSIS          II.  ANALYSIS                    We split  our analysis into three segments.   First, we          limn  the   framework   for  determining   whether  the   federal          judiciary's imprimatur  should be impressed upon  an IRS summons.          Next, we mull the  district court's finding on the  pretext issue          under  the deferential standard  of review that  pertains in this          context.  Lastly, we explain why the IRS's failure to comply with          I.R.C.   7609(f) effectively ended the case.                                  A.  The Framework.                                  A.  The Framework.                                      _____________                    The IRS  has broad  authority to issue  summonses under          I.R.C.    7602 &  7604.  Enforcement proceedings are  designed to          be summary, see  Donaldson v.  United States, 400  U.S. 517,  529                      ___  _________     _____________          (1971); United States v.  Freedom Church, 613 F.2d 316,  321 (1st                  _____________     ______________          Cir. 1979), and the court's role is simply to ensure that the IRS          is using its broad authority in good faith and in compliance with          the law.   See Donaldson, 400 U.S. at 536;  United States v. Kis,                     ___ _________                    _____________    ___          658  F.2d 526, 535  (7th Cir. 1981), cert.  denied, 455 U.S. 1018                                               _____  ______          (1982).  Thus, when a  challenge to a summons is lodged,  the IRS                                          6          must only satisfy the  court that (1) its investigation  is being          conducted  pursuant  to a  proper  purpose,  (2) the  information          sought  in the summons  is (or may be)  relevant to that purpose,          (3)  the information is not  already within the IRS's possession,          and  (4)  all legally  required  administrative  steps have  been          followed.   See  United  States v.  Powell,  379 U.S.  48,  57-58                      ___  ______________     ______          (1964);  Copp v.  United States,  968 F.2d  1435, 1437  (1st Cir.                   ____     _____________          1992), cert. denied, 113 S. Ct. 1257 (1993).                 _____ ______                    In determining  whether to enforce IRS  summonses under          these  substantive standards, we do not write on a pristine page.          This   court  has  constructed   a  three-tiered   framework  for          expediting such determinations.  See Freedom Church, 613  F.2d at                                           ___ ______________          321; United States v.  Salter, 432 F.2d 697, 700 (1st Cir. 1970);               _____________     ______          accord  United States v. Church of Scientology, 520 F.2d 818, 824          ______  _____________    _____________________          (9th  Cir. 1975); United States v. McCarthy, 514 F.2d 368, 372-73                            _____________    ________          (3d Cir. 1975).   To mount  the first tier,  the IRS must make  a          prima  facie showing that  it is acting  in good faith  and for a          lawful purpose.  This burden is  not taxing, so to speak.  Courts          repeatedly have confirmed that  an affidavit of the investigating          agent attesting  to satisfaction of  the four Powell  elements is                                                        ______          itself  adequate to make the requisite prima facie showing.  See,                                                                       ___          e.g., Sylvestre v. United States, 978 F.2d 25, 26 (1st Cir. 1992)          ____  _________    _____________          (per curiam), cert. denied, 113 S. Ct. 1606 (1993); United States                        _____ ______                          _____________          v. Lawn Builders  of New Eng., Inc., 856 F.2d  388, 392 (1st Cir.             ________________________________          1988);  Liberty Fin. Servs. v. United States, 778 F.2d 1390, 1392                  ___________________    _____________          (9th Cir. 1985); Kis, 658 F.2d at 536.                           ___                                          7                    Once this  minimal showing surfaces, the  burden shifts          to the taxpayer  to rebut the good-faith  presumption that arises          in consequence  of  the  government's  prima facie  case.2    The          taxpayer   is  not  at  this   stage  required  to  disprove  the                                                              ________          government's profession  of  good faith.   See  United States  v.                                                     ___  _____________          Samuels, Kramer & Co., 712 F.2d 1342, 1348 (9th  Cir. 1983); Kis,          _____________________                                        ___          658  F.2d  at 540.   She  must,  however, shoulder  a significant          burden of production:   in order to advance past  the first tier,          the taxpayer  must articulate  specific allegations of  bad faith          and, if necessary, produce reasonably  particularized evidence in          support of those allegations.3  See Kis,  658 F.2d at 540; United                                          ___ ___                    ______          States  v. Garden  State Nat'l  Bank,  607 F.2d  61, 71  (3d Cir.          ______     _________________________          1979); Salter, 432  F.2d at  700.  This  showing does not  demand                 ______          that  the taxpayer conclusively give  the lie to  the prima facie          case, but only  that she  create a "substantial  question in  the          court's mind regarding the validity of the government's purpose."          Salter, 432 F.2d at  700; accord Church of Scientology,  520 F.2d          ______                    ______ _____________________                                        ____________________               2The  summons enforcement  framework  is reminiscent  of the          "proof  structure" for  proving intentional  discrimination under          Title VII.  See Texas Dep't of Community Affairs v.  Burdine, 450                      ___ ________________________________     _______          U.S. 248, 252-55  (1981); McDonnell Douglas  Corp. v. Green,  411                                    ________________________    _____          U.S. 792, 802-05 (1973).               3Although  some cases  refer  to the  taxpayer's "burden  of          proof" at this stage,  see, e.g., United States v.  Balanced Fin.                                 ___  ____  _____________     _____________          Mgmt.,  Inc., 769 F.2d 1440,  1444 (10th Cir.  1985); Salter, 432          ____________                                          ______          F.2d  at 700,  those cases are  not necessarily at  odds with our          description  of the framework's second tier.  The term "burden of          proof" may  refer to either a burden or production or a burden of          persuasion.  See Kenneth S. Broun et al., McCormick on Evidence                         ___                          _____________________          336 (4th  ed. 1992).  Only  the burden of production  is at issue          when the taxpayer attempts to rebut the IRS's prima facie showing          and thereby justify further inquiry.                                          8          at 824; McCarthy, 514 F.2d at 376.  To reach this goal, it is not                  ________          absolutely  essential  that  the taxpayer  adduce  additional  or          independent  evidence; she may hoist her  burden either by citing          new  facts or  by  bringing to  light  mortal weaknesses  in  the          government's proffer.                     If  the taxpayer  satisfies this burden  of production,          the third tier beckons.  At this stage, the district court weighs          the facts,  draws inferences, and decides  the issue.  To  do so,          the  court frequently  will  proceed to  an evidentiary  hearing,          taking testimony  and exhibits  from  both sides.   See  Samuels,                                                              ___  ________          Kramer, 712  F.2d at 1347-48; Salter, 432 F.2d at 700.  But there          ______                        ______          is no  hard-and-fast rule compelling  an evidentiary hearing.   A          district court  may, in  appropriate circumstances, forgo  such a          hearing and decide the issues on the existing  record.  See Copp,                                                                  ___ ____          968 F.2d at 1438 n.1; McCarthy, 514 F.2d at 373.                                ________                    A  question  lingers  at  the  third  tier  as  to  the          continuing  viability of the original presumption in favor of the          IRS.   The case law seems to suggest that the presumption endures          and serves at  this stage to saddle the taxpayer  with the burden          of persuading the judge, qua factfinder, that at least one of the                                   ___          Powell  elements is  missing.   See, e.g.,  Kis, 658 F.2d  at 540          ______                          ___  ____   ___          (stating  that a  taxpayer  "can succeed  only  by showing  by  a          preponderance of the evidence some improper use of the summons by          the  IRS"); Freedom  Church,  613 F.2d  at  319 ("The  burden  of                      _______________          proving an abuse of the court's process or the absence  of one of          the Powell elements of good faith is on the summonee."); see also              ______                                               ___ ____                                          9          United States v. Balanced  Fin. Mgmt., Inc., 769 F.2d  1440, 1445          _____________    __________________________          (10th  Cir. 1985).  We  are somewhat skeptical  of this approach,          especially   given   the  Supreme   Court's   recent   lesson  on          presumptions and burdens of  proof in an analogous setting.   See                                                                        ___          St. Mary's  Honor Ctr.  v. Hicks,  113 S.  Ct. 2742,  2747 (1993)          ______________________     _____          (holding  that a Title VII  plaintiff always bears  the burden of          persuasion despite the  presumption in her  favor created by  her          prima  facie case).   The  Court's  treatment of  presumptions in          Hicks is  consistent with  the basic  principle, codified  in the          _____          Federal Rules of Evidence:                    In  all  civil  actions  and  proceedings not                    otherwise provided for by  Act of Congress or                    by these rules, a presumption imposes on  the                    party against whom it  is directed the burden                    of  going forward  with evidence to  rebut or                    meet the presumption,  but does not shift  to                    such party  the burden of proof  in the sense                    of the risk  of nonpersuasion, which  remains                    throughout the  trial upon the party  on whom                    it was originally cast.          Fed. R. Evid. 301.                    We  are hard-pressed  to  fathom  why  IRS  enforcement          proceedings should diverge from  this principle.  It is  the IRS,          not  the  taxpayer, that  seeks to  invoke  the processes  of the          court; and, in a  related vein, the court is  instructed to grant          the  requested  relief  only  when "sufficient  proof  is  made."          I.R.C.   7604(b).  Though it certainly can be argued that "strong          reasons of  public  policy"  justify  a  burden-shifting  scheme,          Salter, 432 F.2d at 700, it  would seem that the IRS's legitimate          ______          interest  in  obtaining  summary  enforcement  is  satisfactorily          addressed by  the particularized burden of  production imposed on                                          10          the  taxpayer, without going the  whole hog.4   See, e.g., United                                                          ___  ____  ______          States  v.  Euge,  444 U.S.  707,  719  (1980)  (stating that  in          ______      ____                                               __          addition  to the taxpayer's right to challenge a summons, the IRS          ________  __          "must also establish [its]  compliance with the [four recognized]          good faith requirements"); McCarthy,  514 F.2d at 373 (suggesting                                     ________          that "the Secretary should  be prepared to prove the  allegations          of  the  complaint  that the  summons  complies  with the  Powell                                                                     ______          requirements").                    While  this  point  is intellectually  interesting,  we          defer a definitive decision on it to a different day.  After all,                                        ____________________               4The  cases suggesting  that the  taxpayer has  the ultimate          burden  of persuasion  rely  principally  on isolated  statements          extracted from Powell  and United States  v. LaSalle Nat'l  Bank,                         ______      _____________     ___________________          437  U.S. 298  (1978).   Foremost among  these statements  is the          Powell  Court's comment that "[t]he burden of showing an abuse of          ______          the court's process is on the taxpayer."  379 U.S. at 58.  We are          not confident that  this slender  reed can bear  the strain  that          subsequent opinions have placed on it.  Powell itself imposed the                                                  ______          burden  on  the  IRS to  "show  that  the  investigation will  be          conducted pursuant to a legitimate purpose, that the  inquiry may          be  relevant to the purpose,  that the information  sought is not          already  within  the  Commissioner's  possession,  and  that  the          administrative steps  required by  the Code have  been followed."          Id. at 57-58.   The  Court's subsequent reference  to proving  an          ___          abuse  of process,  read  in context,  seems  to be  confined  to          affirmative  defenses, e.g.,  allegations  of  harassment in  the          conduct of an investigation.  See id. at 58.                                        ___ ___                    By  like  token,  the  LaSalle Court's  statement  that                                           _______          "those  opposing enforcement of a  summons do bear  the burden to          disprove  the actual existence of a valid civil tax determination          or  collection purpose  by the  Service," 437  U.S. at  316, does          little to prop up the government's burden-of-proof argument.  The          LaSalle  Court  held  that,  even  if  the  IRS  had  a  criminal          _______          prosecution  in mind,  this fact  would not  constitute a  per se          improper purpose  for a civil summons, because civil and criminal          tax  investigations  are  typically too  intertwined  to untangle          easily.  See id. at 314-16.  Hence,  the quoted statement applies                   ___ ___          only in situations where the taxpayer is seeking to avail herself          of  the "sole criminal purpose" defense to a summons.  See, e.g.,                                                                 ___  ____          Copp, 968 F.2d at 1437.          ____                                          11          the respondents concede that  the district court tacitly required          them  to  prove  improper  purpose  by  a  preponderance  of  the          evidence,  and they  accepted  the burden  of  proof without  any          objection.   Consequently, we proceed  on the assumption that the          lower  court's resolution of the  issue will prevail  only if the          record suffices  for a finding  that the respondents  carried the          devoir of persuasion.                         B.  The Finding of Improper Purpose.                         B.  The Finding of Improper Purpose.                             _______________________________                    With this  structure in mind,  we turn to  the district          court's determination  that the IRS's stated  purpose for issuing          the summonses   its avowed desire to investigate the respondents'          law firm   was merely a pretext to enable it  to learn more about          the intervenor.                    At the  outset,  we are  constrained to  note that  the          remarkably  thin prima  facie case  established by  Agent Ameno's          declaration provides  a shallow  foundation for a  presumption in          favor of  the  government.   While  the declaration  touches  the          requisite bases    it  contains the bareboned  allegations needed          for the government's prima  facie showing   it is  utterly devoid          of specifics.  Though a conclusory affidavit is enough to satisfy          the  government's burden at the first tier of the framework, see,                                                                       ___          e.g., Sylvestre, 978 F.2d at 26; Lawn  Builders, 856 F.2d at 392,          ____  _________                  ______________          it  can  come back  to haunt  the proponent  if  it is  not later          supplemented by  more hearty fare once the challenger succeeds in          scaling the second tier.                    At any rate, the government effectuated its prima facie                                          12          showing with little room  to spare.   The burden then shifted  to          the  respondents  to  produce   evidence  and/or  allegations  of          sufficient  force and exactitude to warrant  further inquiry.  To          meet  this  burden, the  respondents  argued  that the  summonses          should be  shelved because  the government's professed  purpose            linking the summonses to an investigation into the law firm's tax          liability   was pretextual.                    Contrary to the government's dismissive suggestion, the          respondents did  not simply level the charge.   In support of it,          they submitted  two affidavits.   One affidavit  incorporated the          extensive  correspondence between  the  firm and  the  IRS.   The          second affidavit  chronicled the firm's  meticulous attention  to          income reporting requirements, and  asserted that the IRS already          had  the data it  needed to determine whether  the firm had fully          complied  with its  tax-related  obligations.   In addition,  the          respondents documented  several public  statements which  seem to          imply  that the IRS's  purpose in issuing  summonses to attorneys          for  the records of large cash-paying clients is designed less to          monitor  lawyers' compliance  with  the  tax  laws, and  more  to          address money  laundering,  narcotics distribution,  and  kindred          criminal  activity on the part  of lawyers' clients.   See, e.g.,                             ________________________________    ___  ____          IRS  Publication 1544 (rev. Aug. 1994) (stating that Form 8300 is          intended  in part to  help identify  "smugglers and  drug dealers          [who]  use large  cash payments  to `launder' money  from illegal          activities");  IRS News  Release IR-93-113  (Dec. 7,  1993) ("The          data  [obtained  through  Form  8300]  helps  detect   nonfiling,                                          13          unreported  income, and  money laundering  often associated  with          narcotic trafficking and other illegal  activities by some of the          customers  and clients  of  the businesses  required to  file.").          Finally, the respondents pointed  out that the Ameno declaration,          which purported to describe the ongoing investigation  of the law          firm, was nothing but boilerplate.5                    The lower  court concluded  on this chiaroscuro  record          that  the government's supposed investigation of the law firm was          a  pretext for  an anticipated  investigation of  John Doe.   See                                                                        ___          Gertner,  873 F.  Supp. at  734.   On appeal,  the IRS  rides two          _______          horses  into the breach.   First, it maintains  that the district          court  erred  in  stabling   the  summonses  without  holding  an          evidentiary  hearing.  Second, it posits that, in all events, the          court's ultimate finding of pretext,  based on the record  before          it, is unsupportable.  Both steeds are lame.                    1.    The  Need  for  an   Evidentiary  Hearing.    The                    1.    The  Need  for  an   Evidentiary  Hearing.                          _________________________________________          government's  first question  is easily  answered.   The decision          whether  to hold an evidentiary hearing in a given case generally          rests within the sound discretion of the trial court.  See, e.g.,                                                                 ___  ____          Weinberger v. Great N. Nekoosa Corp., 925 F.2d 518, 527 (1st Cir.          __________    ______________________          1991); United States  v. Panitz,  907 F.2d 1267,  1273 (1st  Cir.                 _____________     ______          1990); United States  v. DeCologero,  821 F.2d 39,  44 (1st  Cir.                 _____________     __________                                        ____________________               5The  declaration  matched,   almost  word  for  word,   the          declaration at issue  in United  States v. Ritchie,  15 F.3d  592                                   ______________    _______          (6th  Cir.), cert. denied,  115 S.  Ct. 188  (1994), and,  as the                       _____ ______          government  conceded   at  oral   argument,  was   "the  standard          affidavit"  that the  IRS routinely  uses in  summons enforcement          proceedings spurred by Form 8300 filings.                                          14          1987).  This discretion remains fully intact when the business of          the  day is the  enforcement of an  IRS summons.   See Fortney v.                                                             ___ _______          United States, 59 F.3d 117, 121 (9th Cir. 1995) ("We defer to the          _____________          district court's  discretion to decide if  an evidentiary hearing          on the  question  of enforcement  of a  summons is  warranted.");          Hintze  v.  IRS, 879  F.2d 121,  126  (4th Cir.  1989) (similar).          ______      ___          Appellate review  is, therefore,  deferential; we will  interfere          with  a  district  court's  bottom-line decision  to  conduct  or          withhold  an   evidentiary  hearing  in  a   summons  enforcement          proceeding  only if  the appellant demonstrates  an abuse  of the          trial court's substantial discretion.  See Copp, 968 F.2d at 1438                                                 ___ ____          n.1.                    We  discern no  abuse in  this situation.   At  no time          during the proceedings below did  the IRS request an  evidentiary          hearing.   Rather, it  vigorously (and successfully)  opposed the          respondents' request for  such a  hearing.  In  other words,  the          government  chose to  roll  the dice,  apparently confident  that          Agent   Ameno's  conclusory   declaration  would   withstand  the          respondents' allegations and evidence.   Having gambled and lost,          the government is  in a  perilously poor position  to pursue  the          point.  In any event, "[w]e regularly turn a deaf ear to protests          that an  evidentiary hearing  should have  been convened but  was          not,  where, as here,  the protestor  did not  seasonably request          such a  hearing in the lower  court."  Aoude v.  Mobil Oil Corp.,                                                 _____     _______________          892 F.2d 1115, 1120 (1st Cir. 1989); see also Sylvestre, 978 F.2d                                               ___ ____ _________          at 28 n.3  (explaining that  a taxpayer's failure  to request  an                                          15          evidentiary hearing in the district court precluded consideration          of his later claim  that such a hearing  should have been  held);          see generally CMM Cable  Rep., Inc. v. Ocean Coast  Props., Inc.,          ___ _________ _____________________    _________________________          48 F.3d  618, 622 (1st Cir.  1995) ("A party who  neglects to ask          the  trial court for relief that it might reasonably have thought          would  be available  is not  entitled to  importune the  court of          appeals to grant that relief.").                    2.   The Supportability  of the  Crucial Finding.   The                    2.   The Supportability  of the  Crucial Finding.                         ___________________________________________          remaining  question is  whether the  district court's  finding of          pretextual purpose is supportable.  Determining the IRS's purpose          in  conducting an  investigation  is, like  most  motive-oriented          explorations, a predominantly  factbound enterprise.   It follows          that, absent  a  mistake of  law,  an appellate  tribunal  should          disturb the  district court's determination only if it is clearly          erroneous.  See  United States v. Ritchie, 15 F.3d  592, 599 (6th                      ___  _____________    _______          Cir.), cert.  denied, 115 S.  Ct. 188 (1994);  Copp, 968  F.2d at                 _____  ______                           ____          1437;  Hintze, 879 F.2d at  1426; Ponsford v.  United States, 771                 ______                     ________     _____________          F.2d 1305, 1307-08 (9th Cir. 1985).   This means, of course, that          if  there  are  two  or more  plausible  interpretations  of  the          evidence, the district court's choice among them must  hold sway.          See Johnson v. Watts  Regulator Co., ___ F.3d ___, ___  (1st Cir.          ___ _______    ____________________          1995) [No. 95-1002, slip op. at 22].                    Here, no  clear error looms.  The government's case for          enforcing the summonses depended  entirely on Agent Ameno's self-          serving declaration (which, as we have previously indicated, is a                                          16          web   of  unsubstantiated   conclusions).     In  contrast,   the          respondents fashioned a sufficient evidentiary  infrastructure to          support  an inference that the IRS's sole purpose in pursuing the          summonses  was to  gain  information about  the lawyers'  unnamed          client.   The law  firm's affidavit, if  credited, indicates that          the  IRS had no apparent reason  to suspect it of any tax-related          impropriety.    And,  moreover,  the  IRS's   use  of  a  generic          affidavit,  devoid of  particularization, suggests  that the  IRS          never  really suspected  the firm  of any  questionable activity.          The IRS's stonewalling    its unexplained  refusal to answer  the          firm's  repeated inquiries  as to  whether it  was in  fact under          investigation   points in the same direction.  These facts, taken          in  light   of  the  IRS's  self-proclaimed   practice  of  using          information  gleaned  from  attorneys'  Form 8300  filings  as  a          vehicle for investigating clients  who pay counsel fees in  cash,          make the district court's conclusion that  the IRS's interest lay          only in  the  unidentified  client  seem  quite  plausible.    We          ____          conclude, therefore,  that notwithstanding any  presumption which          may  have accompanied  the IRS's prima  facie showing,  the court          below reasonably  could have  found that  a preponderance  of the          evidence  favored  the  respondents'  claim  of  pretext.6    See                                                                        ___                                        ____________________               6The  government   argues  that  this   finding  is   flatly          inconsistent with the district court's original acceptance of the          Ameno declaration as a sufficient basis for issuing a  show-cause          order.  We do not agree.   The acceptance of the IRS's first-tier          proffer signifies nothing more  than the court's  acknowledgement          that  the IRS has mustered a prima facie showing for enforcement.          Once the  respondents met their second-tier  burden of production          and  raised  a legitimate  question  about  the  validity of  the          summonses, however, the court was free to reevaluate the original                                          17          Ritchie,  15  F.3d  at  599  ("Although  there  was  evidence  to          _______          contradict  this view  and the  IRS strenuously  objects to  [the          court's] finding,  [the] findings are not  clearly erroneous, and          we therefore adopt them.").                    The  government  argues  that  the  decision  in United                                                                     ______          States v.  Tiffany Fine Arts,  Inc., 718 F.2d  7 (2d  Cir. 1983),          ______     ________________________          aff'd,  469 U.S. 310 (1985), should propel us toward the opposite          _____          conclusion.   There, the  Second Circuit upheld  a summons issued          for the dual purpose of  investigating both a designated taxpayer          and  a John  Doe, see 718  F.2d at  13-14, and  the Supreme Court                            ___          affirmed, see 469 U.S. at 324.   The government tries to shoehorn                    ___          this case into the Tiffany last.  The fit, however, is imperfect.                             _______                    In Tiffany, unlike here, the district court ascertained                       _______          as a matter of fact  that the IRS had a dual purpose, that is, an          actual interest in the investigation of both the taxpayer and the                                                  ____              ___          John Doe.  See  469 at 317 (recounting district  court's findings                     ___          of fact).  In this case, the district court  ascertained, also as          a matter of fact, that the IRS did not have an actual interest in                                             ___          the investigation  of the  taxpayer (the respondents'  law firm),          but only  in learning more about  John Doe.  Thus,  the two cases              ____          are not fair  congeners except  to the extent  that, given  Judge          Brody's supportable  factual finding that the  summonses at issue          here were not dual purpose summonses, the Supreme Court's opinion          in Tiffany clearly indicates that we should respect that finding.             _______          See  id. at 322.  And,  once the judge determined  as a matter of          ___  ___                                        ____________________          proffer in light of the respondents' counter-proffer.                                          18          fact  that  the  government's   actual  purpose  in  issuing  the          summonses was to further an  investigation of the unnamed client,          the follow-on conclusion that the government should have complied          with  the  procedure  for  issuing  John  Doe  summonses  becomes          irresistible.7  See id.                          ___ ___                    We  take  no  pleasure  in  upholding  a  finding  that          government actors  constructed a pretext to  avoid due compliance          with statutorily  prescribed requirements.   But the  court below          did not reach  this conclusion lightly and  the record, carefully          examined,  does not  give  rise to  a  firm conviction  that  the          court's judgment is wide  of the mark.  Accordingly,  the finding          of pretextual purpose must stand.                 C.  The Remainder of the District Court's Decision.                 C.  The Remainder of the District Court's Decision.                     ______________________________________________                    Despite its  double-edged  determination that  the  IRS          ought to have complied  with the strictures of I.R.C.    7609(f),          but did  not do  so, the  district court  proceeded to  reach and                                        ____________________               7At oral  argument in  this court, the  government belatedly          contended  that  the  summonses  should  be  enforced  simply  to          effectuate compliance with the  reporting requirements of section          6050I itself.   This nascent contention materialized  out of thin          air; prior  to oral  argument, the  government  had attempted  to          justify the  summons solely as  a means of  investigating whether          the law firm had reported all the income required to be reported.          Since the  record reveals beyond  hope of contradiction  that the          government's  newly minted contention  was not made  below in any          coherent  fashion, we  will not  entertain it  here.   See United                                                                 ___ ______          States  v. Zannino,  895  F.2d 1,  17  (1st Cir.)  (discussing  a          ______     _______          litigant's  obligation to  spell out  its arguments  squarely and          distinctly  in  the trial  court),  cert. denied,  494  U.S. 1082                                              _____ ______          (1990);  Patterson-Leitch  Co.  v. Massachusetts  Mun.  Wholesale                   _____________________     ______________________________          Elec. Co.,  840 F.2d 985, 990 (1st Cir. 1988) (similar).  In this          _________          connection,  we remind the  government that  "[p]assing allusions          are not adequate to preserve an  argument in either a trial or an          appellate venue."  United  States v. Slade, 980 F.2d  27, 30 (1st                             ______________    _____          Cir. 1992).                                          19          resolve  the other issues in the case.   It is not entirely clear          why the  court chose to grapple  with these issues.   It may have          intended to  articulate an  alternative ground for  rejecting the          summonses, or it  may have  thought the IRS's  failure to  comply          with I.R.C.   7609(f) to  be a specie of harmless error.  We need          not resolve the  ambiguity.   If the court  extended its  journey          merely  to  memorialize a  further  basis for  its  decision, the          additional holdings are  surplusage and can be disregarded.   See                                                                        ___          Kastigar v. United States, 406 U.S. 441, 454-55 (1972) (rejecting          ________    _____________          language  "unnecessary  to  the  Court's   decision"  as  binding          authority in subsequent cases).  On the  other hand, if the court          ventured afield because it  concluded that the government's bevue          was harmless, the court miscalculated.  We explain briefly.                    Congress passed section 7609(f) specifically to protect          the  civil rights,  including  the privacy  rights, of  taxpayers          subjected to  the IRS's aggressive use  of third-party summonses.          See  S. Rep. No. 938, 94th  Cong., 2d Sess. 368 (1976), reprinted          ___                                                     _________          in 1976 U.S.C.C.A.N. 3439,  3797; H.R. Rep. No. 658,  94th Cong.,          __          2d Sess.  307 (1975), reprinted in 1976  U.S.C.C.A.N. 2897, 3203;                                _________ __          see generally Tiffany, 469 U.S.  at 315-17 (discussing history of          ___ _________ _______            7609).   Section 7609(f)  accomplishes this  goal by  providing          that  a John  Doe summons  is not  valid unless  and until  it is          authorized  by a judicial officer after a hearing (normally an ex          parte hearing, given the  nature of the problem).   In the  court          proceeding, the IRS must establish that:                         (1)   the   summons   relates   to   the                    investigation  of  a  particular   person  or                                          20                    ascertainable group or class of persons,                         (2)  there  is  a reasonable  basis  for                    believing that such person  or group or class                    of  persons may  fail or  may have  failed to                    comply  with any  provision  of any  internal                    revenue law, and                         (3)   the   information  sought   to  be                    obtained from the  examination of the records                    (and the  identity of the  person or  persons                    with respect to  whose liability the  summons                    is  issued)  is  not readily  available  from                    other sources.          I.R.C.   7609(f).                    This   requirement  of   judicial  preapproval   is  an          important  component  of the  statutory  scheme;  it permits  the          district court to act as a surrogate for the unnamed taxpayer and          to  "exert[] a restraining influence  on the IRS."   Tiffany, 469                                                               _______          U.S. at 321.  The statutory protections cannot be cavalierly cast          aside by either the executive or  the judicial branch.  Hence, if          the enforcement  proceeding results  in a determination  that the          IRS does not  in fact intend to  investigate a named  party, then          the IRS cannot  obtain the  data it seeks  without observing  the          mandate of section 7609(f).  See id. at 322.                                       ___ ___                    So  it is here.  The court below supportably found that          the  IRS  had  no  intention  of  investigating  the  tax-related          liability  of  the respondents'  law  firm.   Therefore,  the IRS          cannot obtain the  identity of the anonymous client    John Doe            by means of these summonses unless and until it  runs the section          7609(f)  gauntlet.   To  hold  otherwise would  be  tantamount to          assuming  either that section 7609(f) is nugatory or that the IRS          will  always  be able  to fulfill  the  statute's demands.   Such          assumptions have  no basis  in  law or  in fact.    The John  Doe                                          21          summons procedures  represent a basic legislative  judgment about          the  importance of  taxpayers'  privacy and  other  rights    and          courts must respect that judgment.                    To  be  sure, the  harmless  error  argument derives  a          superficial measure of credibility from Ritchie, a  case in which                                                  _______          the  Sixth Circuit held that,  despite a finding  of pretext, the          IRS did  not have  to go  back through the  protocol mandated  by          I.R.C.    7609(f).  See  Ritchie, 15  F.3d at 600.   The  Ritchie                              ___  _______                          _______          court  thought that "it would  exalt form over  substance to make          the IRS go through the motions" required by section 7609(f), only          "to  bring us back  to where we are  now."  Id.  at 600.  Passing                                                      ___          over the court's somewhat casual view of the protections afforded          by the John Doe  summons procedures,8 and without ruling  out any          possibility of  harmless  error in  this context,  we think  that          under section 7609(f) form  is substance, and that the  procedure                                      __          mandated by Congress generally must be followed.                    In  all  events,  Ritchie  is  plainly distinguishable.                                      _______          There, unlike  here, an  evidentiary hearing  had been  held, the          statutory  protections  had  been  afforded "in  spirit"  if  not          literally, and  the record  contained  sufficient information  to          persuade  the court that the IRS had met "the substantive factors                                        ____________________               8Ritchie suggests  that the "statutory  protections are  not                _______          strong in any  event."  15  F.3d at  600 n.8.   But strength  and          weakness  are  relative  concepts,  and section  7609(f)  is  not          totally devoid  of muscle.   Among other things,  the requirement          that the IRS  have a  "reasonable basis for  believing" that  the          unidentified  taxpayer may have  violated internal  revenue laws,          I.R.C.     7609(f)(2),  differs significantly  from  the  minimal          showing the  IRS  must  make  under  Powell  to  obtain  judicial                                               ______          enforcement of other kinds of summonses.                                          22          of    7609(f)."  Ritchie, 15 F.3d  at 600.  We have no comparable                           _______          record before us, and  no basis to assume that the IRS ultimately          will pass the  statutory test.   In particular,  among the  other          requirements for  a John  Doe summons,  the IRS must  demonstrate          that it  possesses  a reasonable  basis  for believing  that  the          unnamed taxpayer may  have failed  to comply with  the tax  laws.          See I.R.C.    7609(f)(2).    In this  case,  we have  only  Agent          ___          Ameno's  conclusory  declaration, directed  on  its  face at  the          respondents  (not at  John  Doe).   If  this were  sufficient  to          satisfy  the  imperatives  of  section   7609(f),  then  judicial          preapproval would  become a charade,  and section 7609(f)  a dead          letter.9                    We need  go  no  further.    Any way  we  look  at  the          situation, the district court's views as to the applicability vel                                                                        ___          non  of the  attorney-client privilege  are not necessary  to the          ___          result.    Consequently,  we have  no  occasion  to consider  the          correctness of the court's conclusions on those issues.          III.  CONCLUSION          III.  CONCLUSION                    The district  court's finding that  the summonses  were          not drawn  in connection  with  a probe  of the  law firm's  tax-          related liability,  but, instead, for the  clandestine purpose of                                        ____________________               9We note, too, that the  Sixth Circuit explicitly warned the          IRS  that  it  was issuing  a  "one-time only"  free  pass.   See                                                                        ___          Ritchie, 15 F.3d at 600 ("We are not suggesting that  the IRS may          _______          in  the future  avoid  going  through  the  ex  parte  proceeding          required by   7609(f), for now the IRS has fair notice that if it          cannot demonstrate a bona fide interest  in investigating the tax          liability   of  the  party  summoned,  it   must  comply  with             7609(f).").   The government cannot  legitimately expect  another          free pass this time around.                                          23          investigating  the   lawyers'  unnamed   client,  John   Doe,  is          supportable.   This means that the government is legally bound to          follow  the prescribed  procedure  for the  service  of John  Doe          summonses.  See I.R.C.    7609(f).  It has not done  so.  Summons                      ___          enforcement  should be denied  for that  reason, and  that reason          alone.                    We are mindful that restricting our disposition to this          narrow ground leaves larger  issues unresolved, see, e.g., United                                                          ___  ____  ______          States v. Sindel, 53 F.3d 874, 877-78 (8th Cir. 1995) (discussing          ______    ______          ethical   implications   and  applicability   of  attorney-client          privilege in   6050I summons enforcement proceeding brought after          attorney withheld client's identity); United States v. Leventhal,                                                _____________    _________          961 F.2d 936, 940-41 (11th Cir. 1992) (similar); United States v.                                                           _____________          Goldberger & Dubin,  P.C., 935  F.2d 501, 503-06  (2d Cir.  1991)          _________________________          (similar), and that these  issues are freighted with consequence.          But  courts must resist the  temptation to pluck  issues from the          stalk before their time.  The judicial task, properly understood,          should concentrate  on those  questions that  must be  decided in          order to resolve  a specific case.  This is  especially true when          unsettled issues of broad  public concern are afoot.   See Eccles                                                                 ___ ______          v.  Peoples Bank,  333  U.S. 426,  432 (1948)  (Frankfurter, J.);              ____________          Ashwander  v. TVA,  297 U.S.  288, 345-48  (1936)  (Brandeis, J.,          _________     ___          concurring).   In this sense, the science of horticulture is like          the art of  judging:  yearning for the blossom  when only the bud          is ready enhances the growth of neither the flower nor the law.                                          24          Affirmed.          Affirmed.          ________                                          25
