

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  &amp;                                                                           
Dratel, P.C.,  Bruce Maffeo, Bernstein &amp; Maffeo, Thomas E. Dwyer,                                                                           
Jr., Jody L. Newman, and Dwyer &amp; 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 &amp;

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) &amp;  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 &amp;  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 &amp; 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 &amp; 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
