                                                                          FILED
                           NOT FOR PUBLICATION                             NOV 07 2011

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




                            FOR THE NINTH CIRCUIT



MARCON, INC., et al,                             No. 10-35464

              Petitioners-Appellants,            D.C. No. 1:08-mc-06562-EJL-
                                                 REB
  v.

UNITED STATES OF AMERICA,                        MEMORANDUM *

              Respondent-Appellee.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                           Submitted October 13, 2011**
                               Seattle, Washington

Before: KOZINSKI, Chief Judge, PAEZ, Circuit Judge, and COLLINS, District
Judge.***

       Taxpayers MarCon, Inc. and Elaine Martin appeal the district court’s denial of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **    The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       *** The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.



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their petition to quash an IRS summons issued to a third-party record keeper in

December 2008. We review the denial of a petition to quash an IRS summons for

clear error. Fortney v. United States, 59 F.3d 117, 119 (9th Cir. 1995). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we AFFIRM.

      The IRS met its burden under United States v. Powell, 379 U.S. 48 (1964), to

make a prima facie showing that the December summons issued in good faith, and this

showing was not refuted by Taxpayers. The December summons was not tainted by

an earlier summons because (1) if the IRS already possessed the information requested

in the earlier summons, then the earlier summons did not form the basis for the

December summons, and (2) the earlier summons properly issued. The IRS wasn’t

obligated to give notice , and it didn’t already possess the requested information. In

addition, the December summons did not issue for the improper purpose of furthering

a criminal investigation because (1) the matter had not yet been referred to the

Department of Justice for prosecution, and (2) there is no evidence in the record that

the IRS delayed such a referral in bad faith. See United States v. Stuart, 489 U.S. 353,

362-63 (1989).

      AFFIRMED.




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