11th Circuit upholds vitality of Miller decision in IRS investigation regarding bank records

The 11th Circuit, in ruling that Miller and the third-party doctrine still have vitality with respect to searches of bank records, begins its opinion with a discussion of the 1980 USA Men’s Hockey team that’s worth repeating in full:

“To say that the 1980 United States Men’s Olympic Hockey Team had the odds stacked against it would be an understatement. With a roster of amateur players whose age averaged 22, the U.S. team had been routed 10-3 by the Soviet team less than two weeks before the Olympics began. And that was not surprising since the Soviet team was filled with seasoned professionals, had won the past four Olympic gold medals, and had not even lost an Olympic game since 1968. Beating the Soviet team seemed impossible. Yet on February 22, 1980, the U.S. team—led by Coach Herb Brooks—did exactly that, scoring a 4-3 “Miracle” win. Our history contains many such stories of triumphs over long odds. This, however, is not one of those.”

The IRS sent summones to a bank during a tax investigation of some lawyers and their firm. IRS investigators were looking for items such as bank statements, loan proceeds, deposit slips, records of purchase, sources for all deposited items, and copies of all checks drawn.

The law firm moved to quash the subpoenas. The District Court sided with the Government, which led to this appeal in front of the 11th Circuit.

The 11th Circuit rejected the contention that the subpoenas required probable cause because the lawyers had no reasonable expectation of privacy in the records because the third-party doctrine applies.

The case is Presley v. United States, 2018 U.S. App. LEXIS 19832, 895 F.3d 1284, 27 Fla. L. Weekly Fed. C 1049
(11th Cir.) (July 18).

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