Case: 12-13190        Date Filed: 07/25/2014    Page: 1 of 5


                                                                     [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                               ________________________

                                      No. 12-13190
                                ________________________

            D.C. Docket Nos. 9:11-mc-80456-KLR; 9:11-mc-80457-KLR



9:11-mc-80456-KLR

UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,

                                              versus

MICHAEL CLARKE,
As Chief Financial Officer of Beekman Vista, Inc.,
DYNAMO HOLDINGS LIMITED PARTNERSHIP,

                                                                    Defendants-Appellants.

----------------------------------------------------------
9:11-mc-80457-KLR

UNITED STATES OF AMERICA,

                                                                        Plaintiff-Appellee,

                                              versus

DYNAMO HOLDINGS LIMITED PARTNERSHIP,

                                                             Intervenor Plaintiff-Appellant,
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MICHAEL CLARKE,
As Chief Financial Officer of Dynamo GP, Inc.,
As General Partner of Dynamo Holdings Limited
Partnership,

                                                                          Defendant-Appellant.
---------------------------------------------------------
9:11-mc-80459-KLR

UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                              versus

DYNAMO HOLDINGS LIMITED PARTNERSHIP,

                                                                 Intervenor Plaintiff-Appellant,

RITA HOLLOWAY,
As Trustee for the 2005 Christine Moog Family
Delaware Dynasty Trust,

                                                                                    Defendant.
--------------------------------------------------------------
9:11-mc-80460-KLR

UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                              versus

MARC JULIEN,
As Trustee for the 2005 Robert Julien Delaware
Dynasty Trust,

                                                                                    Defendant,


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                Case: 12-13190        Date Filed: 07/25/2014       Page: 3 of 5


DYNAMO HOLDINGS LIMITED PARTNERSHIP,

                                                             Intervenor Defendant-Appellant.
------------------------------------------------------------------
9:11-mc-80461-KLR

UNITED STATES OF AMERICA,

                                                                            Plaintiff-Appellee,

                                             versus

ROBERT JULIEN,

                                                                         Defendant-Appellant,

DYNAMO HOLDINGS LIMITED PARTNERSHIP,

                                                            Intervenor Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Southern District of Florida
                            ________________________

                                        (July 25, 2014)

                        ON REMAND FROM THE
                  SUPREME COURT OF THE UNITED STATES

Before MARCUS, BLACK and SILER, * Circuit Judges.

PER CURIAM:

       The Supreme Court has remanded this case to us to determine whether

Appellants, Dynamo Holding Limited Partnership and several individuals
       *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
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associated with the company, have pointed to specific facts or circumstances

plausibly raising an inference that the Internal Revenue Service (the IRS or the

Service) issued five administrative summonses in bad faith such that Appellants

were entitled to examine an IRS agent regarding the Service’s reasons for issuing

the summonses. United States v. Clarke, No. 13-301 at 6-8 (U.S. June 19, 2014).

       In remanding, the Supreme Court elaborated on the applicable standard,

stating:

       As part of the adversarial process concerning a summons’s validity,
       the taxpayer is entitled to examine an IRS agent when he can point to
       specific facts or circumstances plausibly raising an inference of bad
       faith. Naked allegations of improper purpose are not enough: The
       taxpayer must offer some credible evidence supporting his charge.
       But circumstantial evidence can suffice to meet that burden; after all,
       direct evidence of another person’s bad faith, at this threshold stage,
       will rarely if ever be available. And although bare assertion or
       conjecture is not enough, neither is a fleshed out case demanded: The
       taxpayer need only make a showing of facts that give rise to a
       plausible inference of improper motive.

       The Supreme Court left to us the task of determining whether Appellants’

evidentiary submissions—including the affidavits of Michael Clarke, the chief

financial officer of Dynamo GP Inc., and Richard Sapinski, an attorney

representing another party in connection with the IRS’s investigation into

Dynamo’s tax liabilities—met the applicable standard. The Court also left to us

the task of determining whether the district court “asked and answered the relevant


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question” in ordering enforcement of the summonses; that is, “whether the

[Appellants] pointed to specific facts or circumstances plausibly raising an

inference of improper motive.” 

We are unable to discern from the district

court’s order whether it asked and answered the relevant question. We will

therefore give the district court the opportunity in the first instance to apply the

standard articulated by the Supreme Court. Specifically, the district court should

determine, in light of all of the evidence and the affidavits highlighted by the

Supreme Court, whether Appellants pointed to specific facts or circumstances

plausibly raising an inference of improper purpose.

       On remand, the district court should also consider in the first instance

whether the improper purposes alleged by Appellants, i.e., retaliating for

Dynamo’s refusal to extend a statute of limitations deadline for a third time and

seeking enforcement to avoid the Tax Court’s discovery rules, are improper as a

matter of law.1

       This case is remanded to the district court for further proceedings consistent

with this opinion and the opinion of the Supreme Court.

       REMANDED.




       1
         We take no position regarding the nature of any further proceedings in the district court
and leave to it the question whether to take additional evidence, hold a hearing, or allow the
parties an opportunity for additional argument.
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