G. M. LEASING CORP. v. UNITED STATES

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Argument of Richard J. Leedy

Chief Justice Warren E. Burger: The Court will hear arguments first this morning in No. 75-235, G.M. Leasing Corporation v. the United States.

Mr. Leedy you may proceed whenever you are ready.

Mr. Richard J. Leedy: Mr. Chief Justice and may it please the Court.

I am Richard Leedy from Salt Lake City, Utah.

This case before the Court involves the Internal Revenue Service seizure of assets pursuant to a jeopardy assessment.

The question upon which this Court has granted certiorari was whether or not such seizures have violated the Fourth Amendment to the Federal Constitution.

The petitioner in this case G. M. Leasing Corporation had all of its assets seize pursuant to such a jeopardy tax assessment and as a result, it dealt the debt now to the Corporation.

Those assets consisted of several luxury automobiles including four Stutz automobiles, two Rolls Royces and a Jaguar.

Additionally a bank account was seized from G.M. Leasing Corporation together with all of its books of records.

The petitioner was a family owned corporation and was a new or start-up corporation that was incorporated for the purpose of leasing luxury automobiles.

At the time of the seizure the petitioner had not yet engaged in the business of leasing, however, taken many pre-requisite steps in order so to do.

Justice William H. Rehnquist: (Inaudible)

Mr. Richard J. Leedy: No, Your Honor I do not believe so they cost approximately $40,000 a piece.

Justice William H. Rehnquist: The contemplation was nonetheless these were going to be leased?

Mr. Richard J. Leedy: Yes, I think it was going to be worldwide Your Honor.

In fact, two of these Stutzs were seized from Los Angeles, California.

Justice Thurgood Marshall: Didn’t the Utah record show they had made any business at all?

Mr. Richard J. Leedy: They had not yet leased the cars Your Honor.

Justice Thurgood Marshall: Or anything else?

Mr. Richard J. Leedy: Well, they had obtained the lease forms, they were preparing the cars for lease; they had not yet have them for that amount of time and they had negotiated to acquire a showroom, they had obtained lease forms, they contacted prospective lessees, they contacted other dealerships to see if they could obtain cars at a discount price for leasing.

But Your Honor it is correct they had not yet leased any cars.

Justice Thurgood Marshall: And had they any employees?

Mr. Richard J. Leedy: The record shows they had no employees.

Justice Potter Stewart: How recently had the company that incorporated?

Mr. Richard J. Leedy: My recollection Your Honor, I am not positive, but I think it was within the year.

There is no question that the petitioner G.M. Leasing Corporation was a family corporation and primarily controlled by an individual by the name of George I. Norman, Jr.

Mr. Norman was a businessman in Salt Lake City, Utah and he have substantial income and substantial wealth.

Throughout the briefs in this case Mr. Norman is referred to as the taxpayer, and a taxpayer he was.

In 1970 one of the years under consideration in this case he paid estimated taxes of $290,000.

Because of his income and high expenses Mr. Norman was in the state of constantly undergoing IRS Audits.

In fact, he had undergone an audit from the years 1963-1968 and the IRS Auditor was one particular agent by the name of Bill Clayton.

The evidence of the trial showed that an animosity had developed between Mr. Norman and Mr. Clayton.

Justice Harry A. Blackmun: Is Mr. Norman a fugitive now?

Mr. Richard J. Leedy: Yes, Your Honor.

Justice Harry A. Blackmun: Does this bring into play possibly the Molinaro doctrine, you know the Molinaro case?

Mr. Richard J. Leedy: I am not certain of that doctrine Your Honor.

Mr. Clayton was the IRS Auditor who prepared the assessments in the Hester case.

In March of 1973, the taxpayer George I. Norman, Jr. became a fugitive from Justice.

Several years prior to his becoming a fugitive he was convicted of the federal crime of aiding and abetting a willful misapplication of bank bonds.

He was sentenced to two years in prison and through the course of several years, he had appealed his conviction.

In March of 1973, his appeals were exhausted and he was required to surrender himself to begin serving his prison term.

He did surrender himself to the Marshals in Denver, Colorado, and after surrendering himself he asked permission to make a telephone call, The Marshal released him to go down the hall to a payphone and he never returned.

He left his family and his home, and incidentally he left his assets behind him.

Mr. Bill Clayton, the evidence showed had been working on Mr. Norman’s 1970 and 1971 taxes since October prior to his fugitive status in March.

Several weeks after Mr. Norman became a fugitive, Mr. Clayton prepared a statutory notice of deficiency for Mr. Norman’s 1970 1971 taxes.

He then recommended that this assessment to be a jeopardy assessment, and he finally recommended that the petitioner G.M. Leasing Corporation be considered the alter ego nominee or transferee of George I. Norman.

In accordance with those recommendations, the IRS issued a jeopardy assessment and made demand upon Mrs. Norman, the taxpayer’s wife for the payment of approximately $1 million dollars in taxes, penalties and interest.

Mrs. Norman who was not accustomed to her husband’s business, she was merely a housewife suggested that the IRS agents see her husband’s attorney.

Rather than so doing the IRS Agent’s next step was to start seizing assets.

Their first move was against the bungalow in Salt Lake City, Utah, which was known throughout the briefs in the trial as the Cottage.

The Cottage was the office of the petitioner, it was also the office of George I. Norman and it was also the residence of George Norman’s son the intervener in this action.

Justice William H. Rehnquist: Mr. Leedy, you are referring to Mr. Norman and petitioner as if they were two separate entities.

You take issue with Tenth Circuit’s finding that one with the alter ego or the other.

Mr. Richard J. Leedy: I certainly do, I would rather adopt the trials court’s finding that they were not alter ego or nominee status.

The Internal Revenue Service broke the locks on the building known as the Cottage and entered and began searching.

Upon their entry, one of their group Chiefs realized that it was a residence as well as an office, and based upon his own testimony he said he was fearful of violating someone’s constitutional rights.

And therefore, he replaced the locks and left the premises.

Two days later, the Internal Revenue Service agents again broke into the cottage and they seized the entire cottage including the real estate and including the contents of the cottage, which included the books and records of the petitioner.

The IRS at that time also seized all of the assets of petitioner, which consisted of luxury automobile as well as the bank account, its books and records.

Petitioner brought suit in the United States District Court for the District of Utah for wrongful levy pursuant to statute 26 United States Code Section 7426.

The District Court found in petitioner’s favor there was not an alter ego nominee or transferee of George I. Norman, Jr. that the Tenth Circuit Court of Appeals reversed.

The second aspect of the petitioner’s claims in the District Court was that the assessment was arbitrary and capricious.

Petitioners sought an injunction against the collection of tax and the seizure of assets.

The Court may wish to note that last term we decided the Shapiro case, which I believed, had almost an identical, factual connotation as the Hester case.

In the Hester case, the petitioner attempted to discover the basis underlying the tax assessment, which was done in Shapiro.

In so doing, we took the deposition of the District Director of the Internal Revenue Service in Salt Lake City and in Shapiro case written by deposition, the taxpayer proceeded by way of written interrogatories.

Under advice of Justice Department Council, the District Director refused to answer any questions concerning the tax assessments.

Two reasons were given for the refusal.

The first one is rather ironic because they refused to give us information about the tax assessment because we do not have the taxpayer’s consent; if they had seized all of our assets to pay for the taxpayer’s taxes.

The second reason for refusing to answer the question was the same reason given in Shapiro, that the anti-injunction act applied and there was no jurisdiction in the District Court to restrain the collection of taxes.

Chief Justice Warren E. Burger: In your view the counsel who was in court, before court in that proceeding if the taxpayer was a fugitive?

Mr. Richard J. Leedy: The petitioner whose assets have been seized Your Honor he was seeking to obtain the return of his assets.

Chief Justice Warren E. Burger: When you say the petitioner and he?

Will you clarify precisely whom you mean?

Would you designate the name of the person you are referring to?

You are referring to the Corporation now?

Mr. Richard J. Leedy: I was referring to the District Director refusing to answer the questions, Your Honor.

Chief Justice Warren E. Burger: I am asking you who was in the court on behalf of the taxpayer.

Mr. Richard J. Leedy: Myself.

Well, I was on behalf of the petitioner who was not the taxpayer.

Chief Justice Warren E. Burger: I think that is what gives rise to some problem perhaps.

Mr. Richard J. Leedy: I understand.

Chief Justice Warren E. Burger: You do not claim that you have contemporary authority from your client who is a fugitive to you, Mr. Norman.

Mr. Richard J. Leedy: I have his Power of Attorney, Your Honor, and I do represent him in tax court.

But in this particular case, there is no appearance for him and he is not involved in the case.

Justice Thurgood Marshall: Well, in his absence who is running the Corporation?

Mr. Richard J. Leedy: His son, Your Honor.

Justice Thurgood Marshall: Is he a party to this?

Mr. Richard J. Leedy: He became an intervener when they seized certain assets of his own.

Justice Thurgood Marshall: Why did he have to intervene, if he represents the Corporation?

Mr. Richard J. Leedy: The Corporation brought suit on its own name, Your Honor, for the assets that were seized from the Corporation.

Justice Thurgood Marshall: And if that was his Corporation, he would not have intervene, wouldn’t he?

Mr. Richard J. Leedy: My belief that the Corporation has a standing of its own to bring its own lawsuit, for the loss of its assets.

Justice Thurgood Marshall: Well, this is a one man corporation -- is the Corporation a fugitive too?

Mr. Richard J. Leedy: No, Your Honor.

Justice Thurgood Marshall: Well, supposing on, and levying on the Corporation, how would you?

Mr. Richard J. Leedy: You would give notice to its officers and directors I believe.

They were at that time, that is in the record.

Justice Thurgood Marshall: They are what, who?

Mr. Richard J. Leedy: There were three individuals, Your Honor.

Justice Thurgood Marshall: You keep saying ‘were’ -- I am asking, are the officers as of today?

You do not really know, do you?

Mr. Richard J. Leedy: Yes, I do.

Justice Thurgood Marshall: Well, is the Corporation had meeting?

Mr. Richard J. Leedy: Yes, it has, Your Honor.

Justice Thurgood Marshall: Without the President?

Mr. Richard J. Leedy: He is no longer President -- the fugitive, you are talking about, he is no longer the President, Your Honor?

Justice Thurgood Marshall: Was that in his record?

Mr. Richard J. Leedy: I believe it is, yes, Your Honor.

His son took over and --

Justice Thurgood Marshall: He is a fugitive in the record.

Mr. Richard J. Leedy: Yes, but I believe the evidence showed that the son testified at the District Court level.

He testified that he was one of the stockholders, together with his brothers.

My recollection is that a meeting was held after the disappearance of his father where his mother, himself and his aunt were elected to the board of directors.

Justice Thurgood Marshall: What position does his mother has?

Mr. Richard J. Leedy: I am not certain, but the officers said she is the Director.

Justice Thurgood Marshall: Is she the one that told the agent she had nothing to do with the Corporation, she was just a housewife?

Mr. Richard J. Leedy: That is correct, Your Honor.

Justice Harry A. Blackmun: Mr. Leedy, any claims of Norman III, the son, are not addition here are they?

Mr. Richard J. Leedy: No, Your Honor, he also prevailed in the District Court and the government, did not appeal as the decision in his favor.

Justice Harry A. Blackmun: One last question, precisely where the automobiles when they were seized?

They were on the street, they were in the lot or where?

Mr. Richard J. Leedy: There were two in a parking lot in Los Angeles.

There were two -- the remainder when various garages -- is my recollection in Salt Lake City, Utah.

Justice Thurgood Marshall: (Inaudible)

Mr. Richard J. Leedy: The evidence showed Your Honor that when the IRS agents visited the house, there were some in the driveway.

I do not believe the seizures of the automobiles were made while they were in the driveway.

They were made from various garages, Your Honor and two were in Los Angeles, California in a parking lot.

Justice Thurgood Marshall: Were all of them aware of the that?

Mr. Richard J. Leedy: I do not believe so, Your Honor.

I could be wrong.

Justice Thurgood Marshall: But this case -- whether in the street or whether in the garage.

Mr. Richard J. Leedy: Not as I view it, Your Honor.

Justice Thurgood Marshall: (Inaudible)

Mr. Richard J. Leedy: Well they did for those -- excuse me.

Justice Thurgood Marshall: One or the other (Inaudible).

Mr. Richard J. Leedy: No, Your Honor.

Justice Thurgood Marshall: Why not?

Mr. Richard J. Leedy: Now the door that they removed the locks on, Your Honor had to do with the office building where they went in and took the records of the --

Justice Thurgood Marshall: Seized on the public streets?

Mr. Richard J. Leedy: I did not say that, I said I did not know, Your Honor, I did not believe so.

Justice Thurgood Marshall: But, don’t you know the record?

Oh, you want me to -- okay, I will check.

Justice John Paul Stevens: Mr. Leedy, one last question and I will stop bothering you.

Do you conceive that the documents have been returned and the copies destroyed as the government charges here?

Mr. Richard J. Leedy: Yes, Your Honor.

Unknown Speaker: You do?

Justice John Paul Stevens: Yes.

Justice William H. Rehnquist: Where they the documents of the petitioner here, the Corporation or of Mr. Norman?

Mr. Richard J. Leedy: My understanding is every document that was seized was returned, including those of petitioner’s.

Justice William H. Rehnquist: And do you think that a corporation has the same rights under the Fourth Amendment as an individual?

Mr. Richard J. Leedy: I believe the previous cases of this Court tell that, Your Honor.

My recollection is the Silverthorne Lumber Company case.

Justice John Paul Stevens: And you rely on Silverthorne?

Mr. Richard J. Leedy: I rely on it for the proposition that a corporation has a Fourth Amendment right to privacy.

Justice John Paul Stevens: And yet, the Solicitor General has not said that in his brief?

Maybe we will ask him why.

Mr. Richard J. Leedy: To please the Court, at the trial we attempted to attack the assessment that had been given because the government had counterclaim for foreclosure upon the assets.

We had showed that the Auditor had failed to include in his computations the fact that the taxpayer had paid $290,000, that he had included in the assessment some $115,000 in income that really was an income and that through as prior audits of the taxpayers, he knew that the taxpayer had high business expenses but yet he took no steps to find out what the business expenses were.

Again the Trial Court ruled in favor of the petitioner under the theory that there is a presumption of correctness as to an assessment but that the evidence that we’ve brought forth had rebutted that presumption of correctness, and that shifted the burden to the government to show if there were any taxes due annoying at all.

But the government’s evidence was in somewhat disarray, they could not lay a foundation for their exhibits.

They did not have necessary witnesses to testify.

After several attempts, the government rested.

The Trial Court ruled in favor of the petitioner and the Tenth Circuit again reversed saying that we had to show more error than we had to overcome the presumption of correctness.

The final proposition sought by the petitioner in the Trial Court was that the seizure of its books and records, and the seizure of its assets violated its Fourth Amendment rights to the federal constitution.

That is the question upon which this Court granted certiorari.

Again, the Trial Court ruled in favor of the petitioner and allowed us how the damages were permissible but set a hearing date later for the determination of damages.

The Tenth Circuit again reversed that and there was a finding that the one agent had acted with malice.

The Tenth Circuit indicated that they could find no malice in the record and it held that the taxpayers had acted pursuant to statute the levy in the strange statute and that therefore there was no illegal search.

His petitioner’s position that the levy in the strange statute and the jeopardy assessments statute taken together which allows a seizure of property immediately upon an assessment without any notice to the taxpayer and without any pre-determination of probable cause is a violation of the Fourth Amendment.

Justice Byron R. White: Are you saying that, is your claim that even if there had been no entry into the corporate premises?

Mr. Richard J. Leedy: Yes, Your Honor, that the seizure of assets itself is protected by the Fourth Amendment to the federal constitution.

Justice Byron R. White: Do you think you need a warrant to seize those automobiles for example.

Mr. Richard J. Leedy: That’s what we are arguing and urging this court to dock.

Justice Byron R. White: Do you have another claim that even if that is not so the entry into the premises is?

Mr. Richard J. Leedy: Yes, Your Honor.

Justice Byron R. White: Is that a separate matter?

Mr. Richard J. Leedy: Well, they are inextricably intertwined but I would argue that the entry into the cottage was a search and that by virtue of the fact that there were intelligence agents of the Internal Revenue Service participating -- that by virtue of the fact the documents seized were turned over to the Federal Bureau of Investigation that they were doing more than merely levying, and collecting taxes that they were in fact searching.

Justice Byron R. White: Well, suppose they have found two cars on a public street and two cars sitting in a driveway on private property.

Would you make the same argument about all those cars?

Mr. Richard J. Leedy: Yes sir, I certainly would.

Justice Byron R. White: You do not think that prior cases of this Court wanted the seizure of those four cars that I just described?

Mr. Richard J. Leedy: If the Court is referring to the Phillips v. Commissioner case, no, I do not believe so.

If I may distinguish that case, that case involve not a jeopardy assessment but a situation where there had been a determination with both sides participating in the determination of the amount of taxes do annoy.

Justice Byron R. White: What do you think Shapiro held, you refer to that case?

Mr. Richard J. Leedy: I think Shapiro held to confine -- I guess the precise holding is the Anti-Injunction Act does not apply to such an extent that the taxpayer cannot challenge the basis for the assessment.

In fact, there is no factual basis underlying the assessment then he is entitled to an injunction to prevent the collection of taxes.

Justice Byron R. White: Do you think Shapiro recognized that there can be a seizure first and a hearing later?

Mr. Richard J. Leedy: That was the precise factual situation in Shapiro, yes, Your Honor.

Unknown Speaker: And you are saying that I guess the Court there should not have proceeded on the assumption that the seizure was valid in the first place without a warrant?

Mr. Richard J. Leedy: Yes, Your Honor, I believe that.

Chief Justice Warren E. Burger: Was anything that was seized from the house not returned from house or office, what were the items seized from the house or office, the combination, which have not been returned?

Mr. Richard J. Leedy: To please the Court, there were many items, which were not the property of the petitioner, which were seized and not returned.

All of the petitioner’s property has been returned, with the exception of the automobiles.

But there were furnishings and furniture and other items that belonged to the taxpayer that were seized to having value and they have not been returned.

Chief Justice Warren E. Burger: And when you use the term ‘Tax Payer’ you are referring to Mr. Norman the fugitive, as I am taking it.

Mr. Richard J. Leedy: Yes, Your Honor.

Justice John Paul Stevens: Mr. Leedy, what remains to be adjudicated in this case, the property has all been returned it’s just a quest of damages?

Mr. Richard J. Leedy: I believe so Your Honor, the remedy for violation of the petitioner’s rights.

Justice John Paul Stevens: If the damages have remained to be determined, is the judgment below final?

Mr. Richard J. Leedy: Well, the Tenth Circuit reversed that judgment, Your Honor.

Justice John Paul Stevens: The judgment, and send it back for retrial on the issue of damages?

Mr. Richard J. Leedy: No, it just reversed it outright and said that there is no liability.

Justice John Paul Stevens: No liability, I see.

Mr. Richard J. Leedy: To please the Court, I believe in determining whether or not a warrant is applicable to a tax payer seizure.

One might look at the legislative history surrounding the adoption of the Fourth Amendment which I think clearly shows that the tax collector’s seizure of property was in the contemplation of the framers of the Fourth Amendment.

Most of that legislative history has gone into my opening brief and I would rather than repetitious, I would just simply state that I believe that the legislative history supports the proposition that the seizure of assets by a tax collector is within the meaning of the word ‘seizure’ of the Fourth Amendment.

The second question revolves around, is once you determine that the tax collector’s seizure is within the meaning of the Fourth Amendment, the next question is whether or not a warrant should be required before that seizure.

Or whether or not their exigent circumstances precedent, which were dispensed for the requirement of warrant.

It is the petitioner’s position that there are no such exigent circumstances and as the governments position that, there are.

Government cites for support the fact that the tax payer was a fugitive.

The fact that he had not assisted or cooperated in the preparation of his assessment or tax returns and the final reason that certain properties had disappeared, and therefore, they felt their were exigent circumstances which justified the dispensation with the warrant.

I would submit the fact of the petitioner that the tax payers are fugitive, has no bearing on whether or not the collection of the taxes is in jeopardy because all of the assets were left behind that he had no control over the assets.

But even more importantly he had been a fugitive for approximately two-three weeks before the issuance of the jeopardy assessment and there would certainly be time to obtain a warrant within that period of time.

The second question of whether or not he cooperated in the preparation of his taxes, I again do not have any understanding of how that bears upon whether the collection is in jeopardy or not.

But I would submit that the record is devoid of any request on the part of the IRS to obtain his cooperation that in fact the agent himself referred to go to third-party sources to obtain his information about the tax payer.

The final argument, Your Honors, pertaining to this question is the disappearance of property.

You recall the IRS agents entered into the cottage on one particular day and then they left shortly after that.

That time they left men keeping surveillance on the cottage and they observed that evening certain boxes of material being taken by unknown persons.

Two days later or a day-and-a-half later, they then decided to make their seizures.

I would submit number one, that they had already made the determination of jeopardy prior to that occurrence so that could not have been a relevant factor and number two, that within the day-and-a-half period they could have certainly have had time to obtain the detached neutral Magistrate’s decision as to whether or not the man owed any taxes, whether or not those taxes were in jeopardy.

The final argument that the petitioners use is the argument which is often stated in tax cases and that is that the government has a compelling and urgent need to collect his taxes, and therefore, there are exigent circumstances, which would do away with the requirement of obtaining the Magistrate’s decision.

I would submit to the Court that while I have heard that statement made in many tax cases.

I do not know what is so urgent and compelling about the collection of this man’s taxes and finally, I believe in this day and age of budget deficits and deficits spendings that, that while at once may have been an urgent need of the government.

It is no longer such an urgent need, at least no more urgent than the government’s need to obtain evidence against criminal suspects.

Therefore, in conclusion, Your Honors, we believe that the entry into the cottage for the purpose of seizing books and records was a search.

We believe that the seizure of assets is also a seizure within the meaning of the Fourth Amendment that therefore the general requirements of the Fourth Amendment should apply that a warrant be obtained and that there were no exigent circumstances in this case which would dispense with the requirement of warrant.

Chief Justice Warren E. Burger: Thank you Mr. Leedy.

Mr. Solicitor General.

Argument of Robert H. Bork

Mr. Robert H. Bork: Mr. Chief Justice may it please the Court.

I would like to return the case somewhat to the issue before which is the validity of these seizures under the Fourth Amendment of the propriety of a jeopardy assessment in this case is not an issue.

Indeed at trial Mr. Leedy had a witness to testify about the jeopardy assessment excluded on the grounds that he was not a contestant.

The propriety of the jeopardy assessment he was contesting the amount of -- so I do not think we need to discuss whether the jeopardy assessment was in itself proper.

I would like to help focus consideration of the case if I discuss separately the three acts of that are complained of.

First the seizure of seven luxury automobiles registered to G.M. Leasing.

Second, the entry upon the premises of the office bungalow.

Third, the seizure of the records along with the other assets remaining in the office.

Considerations affecting the legality of these three acts come without a warrant varies, so I think it is best to discuss them separately.

What I want to say is background that I think it is clear from the record that the IRS had very good reason for what it did in this case.

As the fact show the tax payer, Mr. Norman, had filed a return for 1970 that gave no information whatever from which his correct tax can be computed.

The check he gave in payment of his 1971 tax was dishonored by the bank and Mr. Norman never filed any return for that year.

Now, unreasonably the Internal Revenue Service became concerned about the collection of Mr. Norman’s taxes.

Now, it began to investigate but the investigation formally opened had not moved ahead until in early March of 1973, Mr. Norman became a fugitive from justice after being convicted for misapplication of bank funds.

That caused the service appear they would never recover any of the taxes owed by Mr. Norman and they moved rapidly ahead with their audit.

Now, our brief states and I do not want to correct any wrong implication if there is one that they have received no cooperation from Mr. Norman.

It is quite correct that Mr. Norman was a fugitive from justice and nobody had asked him prior to that time for cooperation after he became a fugitive from justice, they went to third-party sources to develop their information.

But the services sense of urgency was no doubt increased by the fact that it is Agent Applegate testified in the Appendix of page 85.

He said that there had been in this case missing stocks and bonds, shuffling of records, a bank account cleaned out, safety deposit boxes cleaned out, and cars stolen.

So that they were quite concerned about preserving the assets they could still find.

Justice Potter Stewart: Well, now all of this goes to the reasonableness and validity of the jeopardy assessment which I thought you began by saying, it was not an issue?

Mr. Robert H. Bork: Well, I think Mr. Justice Stewart it goes somewhat at least to the reasonable...

Justice Potter Stewart: I thought in this case we began; we proceeded upon the premise that there was a jeopardy assessment and the validity of that assessment is not an issue here.

Mr. Robert H. Bork: That is quite correct Mr. Justice Stewart.

I was putting this background in my think because it explains the reasonableness of some of the actions that the IRS took in trying to get the property.

Justice Potter Stewart: Are you suggesting that there are different gradations of jeopardy assessments?

Mr. Robert H. Bork: No, no I am not discussing the jeopardy assessment Mr. Justice Stewart, I am discussing the entries and so forth to the background.

Justice Potter Stewart: That is right and we begin then with a jeopardy assessment as a given upon that premise.

You are not going to suggest that this kind of an entry is valid in some kinds of cases where there has been a jeopardy assessment but not in others?

Mr. Robert H. Bork: Well, I am going to suggest, I think that the reasonableness of an entry in certain kinds of cases could be drawn into question for outrageous entry, a private residence for example.

It might be a different kind of case, I am just trying to describe the kind of case this is.

Justice Potter Stewart: Well, if the jeopardy assessment were less clearly valid, would this be a different kind of case?

Mr. Robert H. Bork: No sir.

Justice Potter Stewart: That was my question.

Mr. Robert H. Bork: I made to describing the urgency which they began to feel about this case.

Justice Byron R. White: I suppose if you needed the -- if the board decides that you needed to enter this premises you are probably suggesting that there is some probable cause.

Mr. Robert H. Bork: I am suggesting that Mr. Justice White.

Justice Byron R. White: And do you think that the government needed probable cause to enter these premises?

Mr. Robert H. Bork: Well, if needed probable cause the former probable cause it needed I believe was an assessment.

Justice Byron R. White: I know, but I asked you whether they needed probable cause.

Mr. Robert H. Bork: No, I do not think so Mr. Justice White unless it needed an assessment.

Justice Byron R. White: Well, let us assume there is a jeopardy assessment and you say it is valid, assume that.

Now the government is then authorized to enter any private premises of the tax payer whether or not it believes there is property in the premises that they...?

Mr. Robert H. Bork: No, no, I think they have to have a good faith belief that there is property in the premises.

Justice Potter Stewart: And assets of the taxpayer?

Mr. Robert H. Bork: Assets of the taxpayer, and I should point out that the service, as a matter of policy does not enter private residences if there is any objection unless consent is given.

Justice Potter Stewart: That policy must be motivated by something.

Mr. Robert H. Bork: I think it is motivated by --

Justice Potter Stewart: By the Constitution?

Mr. Robert H. Bork: I think it is motivated by their concern that private residences have a much greater privacy interest.

Justice Potter Stewart: In which Constitution of the United States?

Mr. Robert H. Bork: I would think so.

I cannot speak as to the reason why they do the regulations that way, I know they were concerned about the privacy interest whether they were concerned about a Fourth Amendment issue, I do not know.

Justice Byron R. White: Your position is still is though that there was no probable cause requirement, to enter the premises of the government, isn’t it?

Mr. Robert H. Bork: Well, probable cause varies Mr. Justice White from case to case and I think --

Justice Byron R. White: Well, whatever it was, you say, you could forget about it.

Mr. Robert H. Bork: Well, I do not know if we are talking about the same thing, what I am saying is you cannot forget about certain pre-requisites, which may call probable cause.

One is that there is an assessment, and the other is that there is reason to believe, there is property on the premises of the taxpayer, which can be used to satisfy the obligation of the tax.

Justice Byron R. White: That much was necessary in any event in effect to enter the premises.

Mr. Robert H. Bork: Well, I think, -- yes, if they had no idea whether these premises were the taxpayers or whether there was any property anywhere around, I think that would be --

Justice Byron R. White: But surely, even so your position certainly is that there was no necessity for any warrant?

Mr. Robert H. Bork: Certainly, that is our position.

Justice William H. Rehnquist: And the probable cause I take it focuses on whether or not there were assets, whether there was probable cause that assets could be discovered on the premises that would satisfy the jeopardy assessment?

Mr. Robert H. Bork: Yes, but I think Mr. Justice Rehnquist, a case when it is the taxpayer’s property, that would almost always be probable cause to think that this building was seized as well.

And there would almost always be probable cause to suppose that there were assets in an office building.

Justice William H. Rehnquist: What if there were probable cause only to believe that there was evidence but no probable cause to believe that there were assets?

Would your position be any different?

Mr. Robert H. Bork: Evidence Mr. Justice Rehnquist of what?

Justice William H. Rehnquist: Of criminal tax liability.

Justice Byron R. White: Well the books, the books of the company.

Mr. Robert H. Bork: No, I do not think one could use this kind of entry to secure evidence of a crime were --

Justice Byron R. White: I know, but what about the books of the corporation.

Suppose that all (Inaudible) in the house or in the premises with the books, the corporate books?

Mr. Robert H. Bork: Well, I think those could be seized for the purposes that the --

Justice Byron R. White: If you know they were not worth anything, you would not pay any taxes.

It would be the source of information where you could determine the amount of the assessment accurately and where some assets might be?

Mr. Robert H. Bork: Well, let me say two things about that.

There was a later increase in the income for one of these years but that information, that is increase in the assessment, the deficiency, that information did not come from these books or records.

The IRS went in to gather assets, there were books and records, they took them for two reasons.

One reason was they thought that the records might themselves contain assets such as stock certificates.

The other is they thought the records might indicate the location of other property of the taxpayer, and that is not an investigatory reason such as you would have in a criminal case that is simply means of tracking down property, and all of this is taken in that kind of a seizure of records.

It seems to me is a property interest not a privacy interest.

Chief Justice Warren E. Burger: How did they found out that some of the cars were located down in Los Angeles from these records?

Mr. Robert H. Bork: I do not know the answer to that Mr. Chief Justice.

I do not believe they did find it from these records.

Chief Justice Warren E. Burger: At what stage did the agents observed the apparent surreptitious removal of boxes of materials sometime from the --

Mr. Robert H. Bork: Well, they made the first entry into the bungalow office on the 21st of March.

They backed out when they saw a stove, a refrigerator because they thought it might be a private residence but it was not.

That night, they saw people carrying boxes of things out of the building, and in the morning, they discovered that the Stutz automobile, which had been in the garage, which they had not seized disappeared, they later recovered that.

It turned out that it was removed by the younger Norman and they later recovered.

But I suppose the automobiles in this case are the most important issues in the Internal Revenue Service, because it seizes assets of that type everyday and it is very important in the collection of taxes.

And I think it would probably impractical, given the dispersion of property that taxpayers mostly have to impose a warrant requirement on that kind of seizure.

For one thing, the Fourth Amendment requires that the places and so forth be described with particularity which means that you have to search for the property then post a guard then go back and get a warrant.

And you have multiple applications in many cases as they kept locating new property, which would also thrust the courts I must say into the day-to-day administration of the Internal Revenues Service.

Now, the core value of the Fourth Amendment, I take it to be the protection of privacy and it seems to me that that value is not even implicated in the process of levying upon automobiles.

The petitioner here makes no point that there was any entry upon any private premises to seize the automobiles and indeed they were found on parking lots and public garages, and I think one of them was found on the streets though, I am not entirely sure.

But there is no privacy interest, the only thing that is at stake here is a seizure for a property interest and the United States has a property interest superior to that of George Norman or his alter ego, the petitioner here.

And that is shown I think by the fact that anything that was seized, which ultimately be held and have been improperly seized, is fully compensable by damages, which an invasion of a privacy interest never is.

And I should note that a full deficiency notice listing issue the items, deficiency has been served upon the taxpayer and that Mr. Norman is now on the Tax Court with his attorney contesting the amount of the deficiency.

I think that is sufficient, it think the automobiles seizure covered by Murray’s Lessee case which we discussed in our brief and I think it is sufficient to dispose of that issue in favor of the United States.

It is only a property interest at stake, and I think the interest of the Unites States and the flexibility in collecting its efficiency, in collecting amounts due it by delinquent taxpayers fully justifies that.

Justice Lewis F. Powell: Would it have made any difference if the automobiles had been on the private property of the taxpayer?

Mr. Robert H. Bork: Well, Mr. Justice Powell, I think if they had seized the automobile in the garage.

I think that would still have been reasonable and that I think brings me to the question, to the entry into the office because they had to remove the -- they removed the lock on the garage where they are about to seize the automobile when the younger Norman protested.

So they did not seize it.

But had they seized it, I take it there would have been less of a privacy interest in the garage than it would have been if there was any in the office, but I do not think it made any difference.

Justice Byron R. White: (Inaudible)

Mr. Robert H. Bork: I think it would, Mr. Justice White.

Justice Byron R. White: But not in the garage?

Mr. Robert H. Bork: I do not know that I am willing to say that it was not in the garage, but it is slightly the case.

Justice Byron R. White: But it was like the factor --

Mr. Robert H. Bork: No, that is quite right.

Now, I think I have discussed the automobile sufficiently, the sheer number of them, the dispersion of them the fact that it is easily movable, the fact that they were not -- they were in public places and so forth.

I think, it sufficiently establishes the reasonableness of that seizure.

Now I want to talk about the second entry into the office.

It is helping to place those evincing context.

I think I briefed us so adequately and I would like to go over the facts about how they discovered that there were such an office and so forth.

I have mentioned that they entered once, saw the stove and the refrigerator and backed out.

Now at that point --

Justice John Paul Stevens: Mr. Solicitor General, you mentioned entry into the office.

Should we not for the purpose of the case assume it is a residence?

Mr. Robert H. Bork: I do not think so, Mr. Justice Stevens.

Justice John Paul Stevens: It was the residence of the son, was it not?

Mr. Robert H. Bork: Well, the record shows, George Norman III, the son, who was 19-years-old at that time, testifies at page 34 of the Appendix, that he had moved in for security purposes because there have been some break-ins.

It was not as if, it was an established residence, he had moved in to protect the office, he was leaving there.

So I do not think that is quite the same or they were near the same as a private interest, and when the office was seized he went back to his father and mother’s house.

Justice John Paul Stevens: Well, does your argument in this case depend on assuming that it is not a residence then?

Mr. Robert H. Bork: I think if this were a residence, it would be a more difficult case.

Justice John Paul Stevens: Well, I know, but is your argument -- what are you asking us to hold?

Are you asking us to decide a case of a non-residence or decide a rule that will apply to residences as well?

Mr. Robert H. Bork: I am asking you to decide the case in reply to a non-residence Mr. Justice Stevens.

I think the degree of residence that was involved here that is that -- which they could not have known, that is that George Norman III, who was 19 had moved in here for security purposes, does not change this into a classic residential dwelling.

Justice John Paul Stevens: If they did not think it was a residence, why did not they continue their total search the first time they entered?

Wasn’t it the policy not to search residences?

Mr. Robert H. Bork: That is correct, they went in and they saw the stove and the refrigerator and out of abundance of caution went out.

Then two things happened, one was, that they talked to Mr. Red, a Contractor, who said that he had worked in there and it was an office.

The other was that they began to see materials being taken out at night.

Now, the record unfortunately, although we refer to an entrance on the 21st when they backed out and an entrance on the 23rd, if you look at the Appendix Mr. Justice Stevens, it turns out on pages 34, 59 and 77, some people testified that the entrance took place the next day on the 22nd, right after they saw the property being removed.

But other people testify that no, it was the 23rd, and the record is a very unsatisfactory state about that, and nobody, apparently focused on that issue at the trial level.

They went back into the building, but I would place in addition to the circumstances surrounding this.

In addition to the fact that a property interest is at stake and not really a privacy interest.

I think we ought to point out that what was done here follows about 700 years of Anglo-American legal history.

That is at least since the 13th Century, this kind of thing has been regularly done.

At English Common Law, it is quite clear it was done, as our brief describes in the colonies of the United States.

It is quite clear that states such as Pennsylvania and Massachusetts, and others, which had provisions on unreasonable searches and seizures after adopting those prohibitions, adopted statutes that allowed what was done here and much more than what was done here.

So that I think, it is quite clear that the Fourth Amendment was written against the background of English and American legal history and of State Constitutional Law which shows that it was not intended to apply to entries, to seize the property of the taxpayer who was delinquent in order to satisfy his tax obligations.

And I think that --

Justice Potter Stewart: It was adopted however against the background of revulsion against writs of assistance and general warrants and specifically against the background of the use of those devises to search to see whether or not a person owe taxes, isn’t that correct?

Mr. Robert H. Bork: To search to see, whether or not a person owe taxes.

Justice Potter Stewart: That was a specific background, was it not?

Mr. Robert H. Bork: It is quite correct Mr. Justice Stewart, by the writ of assistance, a general writ of assistance was an authority search almost at random to see whether there was property in the houses and had no --

Justice Potter Stewart: Population excise tax should have been paid to do advertising.

Mr. Robert H. Bork: That is quite correct.

Whereas this is quite different, this is a case in which it has been determined that taxes are owned by a specific person and there is reason to believe that he has property on business premises.

Justice Potter Stewart: It has been determined unilaterally.

Mr. Robert H. Bork: Well, it has been determined in this case for example after consultation with the Revenue Council, with all the agents, it was quite a federal investigation here.

Justice Potter Stewart: Hasn’t it been determined after any adjudication, which has been determined unilaterally by the collector?

Mr. Robert H. Bork: That is correct, but that is precisely what has happened throughout our history, from the adoption of the constitution on the First Congress which proposed the adoption of the Fourth Amendment along with the rest of the Bill of Rights of course.

Also passed a statute allowing the stress of the collection of taxes to be levied by the stress on the sale and that contemplated the procedure that was used here.

So I think it is clear that the original understanding of the Fourth Amendment is that this kind of entry was lawful and does not require warrant under the Fourth Amendment.

Justice Thurgood Marshall: Your position is -- you never need a warrant.

The IRS is involved, you never need a warrant.

Mr. Robert H. Bork: I do not advance the position that brought here today Mr. Justice Marshall.

There maybe circumstances.

Justice Thurgood Marshall: Well, I think you are pretty close to it because you had weeks, you had three weeks here.

Didn’t you?

Mr. Robert H. Bork: We had three weeks?

Oh, I see Mr. Justice Marshall.

In this kind of a case in an entry upon business premises, I think the IRS does not need a warrant.

I would not go so far as to make that statement as to a private residence and the IRS does not go so far as to do that kind of thing with private residence.

But I would say that in addition to the practice of the IRS there is much more a stake here.

Justice Thurgood Marshall: You see I have trouble with the practical point because it is just as easy to go and get a warrant.

There is no urgency here.

Mr. Robert H. Bork: Oh I think there was an urgency once the assessment --

Justice Thurgood Marshall: I do not know, I cannot recognize an urgency when you stand for three weeks.

I have great difficulty.

Mr. Robert H. Bork: Well, Mr. Justice Marshall the assessment was actually made I believe on the 19th, on the next day on the 20th they went to Mrs. Norman and demanded payment.

On the 21st, the seizure of assets began.

So, once the assessment was made --

Justice Thurgood Marshall: What was three days?

Mr. Robert H. Bork: Well, I have been arguing that, in this case as in the case like Biswell, the operation of the program would be brought to a standstill, if you had to locate a property and then go get a warrant for each item of property particularly describing it --

Justice Thurgood Marshall: I said that when they knew about these six cars, wasn’t it six?

Mr. Robert H. Bork: I believe it was seven but --

Justice Thurgood Marshall: Seven, when they know about those, could not they have gotten a warrant to seize those?

Mr. Robert H. Bork: Well, they would have the goal for example.

They could not describe where they were until they found them.

Justice Thurgood Marshall: If they could describe the cars.

Mr. Robert H. Bork: Yes, but if you regard this as a Fourth Amendment search and seizure warrant I would suppose you have to describe their location and so forth.

Justice Thurgood Marshall: Well, I just recognize the Fourth Amendment is there, it is my trouble, and I can understand why in certain occasions IRS has a great emergency and the guys at the airport with a bundle of money under their bag may take off.

I would require as to go any place.

But if the man is on his way walking, for three day walk I think you would have time to get a warrant.

Mr. Robert H. Bork: I think in this case you would have had to locate the automobiles, post guards on each one of them, can go back to the court and get the warrant for the seizure and since there was --

Justice Thurgood Marshall: How many cars did you see in the driveway the first day they went there?

Mr. Robert H. Bork: The record only says ‘several’, but they did not --

Justice Thurgood Marshall: Several.

Mr. Robert H. Bork: They did not try to seize them that day.

Justice Thurgood Marshall: They could have gotten a warrant that day.

Mr. Robert H. Bork: They did not know who the cars belonged to.

They went back then Mr. Justice Marshall and checked the registration of those cars and found out they belonged to the petitioner.

Justice Thurgood Marshall: Then they could have gotten a warrant.

Mr. Robert H. Bork: They could have gotten a warrant.

I am suggesting to you Mr. Justice Marshall that if that requirement were applied across the operations of the IRS which seizes assets everyday --

Unknown Speaker: (Inaudible)

Mr. Robert H. Bork: I would also suggest that in addition to the constitutional history there has been an unvarying practice under the constitution for almost 200 years and that any rule applied in this case that would require a warrant in circumstances like this would also put into jeopardy, put in the parole, the operation of all the states in their enforcement of judgments and their execution on judgments, for example.

Justice Thurgood Marshall: I also think Mr. Solicitor that on the opposite side of that coin; I do not think I would give IRS three years to act.

And I do not want to say that you do not want a broad rule one way, I do not want a broad rule the other way.

How do you get in the middle?

Justice Byron R. White: You would not distinguish this case at the jeopardy assessment for many other situations.

The commissioner is entitled to levy in despair.

Mr. Robert H. Bork: No, no Mr. Justice White, the fact that it was a jeopardy assessment it could have been just a plain assessment.

Justice Potter Stewart: Exactly.

Mr. Robert H. Bork: But also, I think it is usual to recognize that this is indistinguishable from what happens in the execution of judgments all over the country and in fact in the very jurisdiction in which it arose, Utah.

The rule of civil procedure there, 64(b) says that if a sheriff is executing a judgment he makes a public demand for property in a building, and if the demand is refused the statute says, he must cause the building to be broken open and take the property into his possession and if necessary he may call to his aid the power of the county.

Justice Potter Stewart: Does that include a private residence?

Mr. Robert H. Bork: So far as the rule appears on his face Mr. Justice Stewart it does, I do not know what the practice is.

Justice Potter Stewart: Has the historic practice which you advised us is three or four or five century practice included warrant-less breaking into private residences to find property of a taxpayer who has been judged to owe taxes?

Mr. Robert H. Bork: It certainly does Mr. Justice Stewart.

Justice Potter Stewart: Why is the Internal Revenue Service has been so leery about it?

Mr. Robert H. Bork: Well, I think they live in this society as the rest of us do and they recognize it, there is a privacy, interest in a public home which they do not wish to invade.

Now, what they do with the private home is elected padlock and then negotiate.

Justice Potter Stewart: Is do what?

Mr. Robert H. Bork: They may padlock a home and then negotiate.

Justice Potter Stewart: In this case you equate this so-called bungalow with the taxpayer’s business office, is that correct?

Mr. Robert H. Bork: I do indeed, and I think the evidence shows that.

Justice Potter Stewart: And surely, surely you are not submitting to us that there is no privacy interest of a taxpayer or anybody in his private business office, right?

Mr. Robert H. Bork: There is much less I think Mr. Justice Stewart, and there is in his home and see against Seattle says specifically that the Court does not mean to imply that the privacy interest in this kind of this kind a government or regulation case is not less in an office than it is in a private residence.

I think practically that is quite true, it is, and secondly, what the entry here was not for the purpose of an investigatory search, it was here just to seize property and what is at stake really is.

(Inaudible) do with the privacy interest is mainly a property interest is at stake.

Justice Potter Stewart: Well, I would think if somebody possibly broken into my office, this building, look for property that would also invade the real privacy, wouldn’t it?

Mr. Robert H. Bork: Indeed, it would but there is a much lower privacy interest I think in business premises, and you have on the other side the kinds of factors that are recognized in Colonnade Catering and Biswell and so forth about the urgent government need.

And you have here a congressional statute which recognizes this kind of practice and has since the first Congress of the United States so that I do not expect a 20th Century court to be bound absolutely by history and by long usage, but I do think those things count heavily and I think --

Justice Potter Stewart: (Inaudible)

Mr. Robert H. Bork: Yes.

Justice John Paul Stevens: Mr. Solicitor General, you touched significance of the fact that it is an office rather than a residence but the Trial Court found in finding number three that it was the residence of Mr. Norman, Jr. and that finding was not set aside as I understand it.

So are we not bound regarded as a residence?

Mr. Robert H. Bork: Well, I think one is bound to regard it in a residence in the sense that Mr. Norman Jr. testified it was.

Justice John Paul Stevens: When the sense of the Trial Court found it to be a residence?

Mr. Robert H. Bork: Well, it is a --

Justice John Paul Stevens: Are you asking us to reexamine the finding, look at the record, and make an independent determination on that?

Mr. Robert H. Bork: No I think it is -- he was residing there.

My point is simply that --

Justice John Paul Stevens: Not only are there differences between offices and residences but there are differences between different kinds of residences.

Mr. Robert H. Bork: Well, if one sleeps in one’s office overnight Mr. Justice Stevens or one sleeps in one’s office for a week to safeguard it, I do not think it attains quite the height of privacy that one has in one’s regular residence and dwelling place.

Justice John Paul Stevens: But the finding here -- it was not only has pointed out with some residence.

It was a residence of someone other than the taxpayer, it was equivalent to John Smith’s residence.

Mr. Robert H. Bork: It was the taxpayer’s President’s residence in this record.

Justice John Paul Stevens: I thought the taxpayer was Mr. Norman.

Mr. Robert H. Bork: I am sorry, the petitioner’s.

Justice John Paul Stevens: And this was a residence of Tertius (ph) about Mr. Norman III, who constitutionally was equivalent or just stood any John Smith so they are breaking into a third person of residence according to the finding.

Justice Byron R. White: Well, he is the young Norman whose residence this was, a party here?

Mr. Robert H. Bork: He was below; he is no longer in the case Mr. Justice White.

Justice Byron R. White: Has the taxpayer any standing to talk about the invasion of young Mr. Norman’s residence?

Mr. Robert H. Bork: I would not think so Mr. Justice White, and in an addition it is true that the Court of Appeals set-aside all the findings in this case on the grounds that the Trial Court merely adopted without a change all of the findings submitted by petitioning lawyer.

Justice Byron R. White: Are you suggesting that we must take the case as though it was not a residence at all because a corporation has any standing to claim it is a residence?

Or to object to an invasion of the residence?

Unknown Speaker: (Inaudible)

Mr. Robert H. Bork: Mr. Justice White I think, they have got standing on the office, but they have got standing to object to the entry as an entry into a house.

I guess not far of that Mr. Justice White but I think that they probably do not.

Justice Byron R. White: They do not have standing to object to the breaking into the door to the premises which were both an office and a residence because they were not the only resident?

Mr. Robert H. Bork: I would think --

Unknown Speaker: Then you have to object to it as an entry into it as a business establishment.

Justice Byron R. White: They do not have standing to make this argued, it is what you say?

Mr. Robert H. Bork: That is correct.

Not as to Tertius.

Justice William H. Rehnquist: Does Justice Blackmun's opinion in Morton solved to say that corporations do not have the full protection of the Fourth Amendment that individuals do?

Mr. Robert H. Bork: I think it is quite true Mr. Justice Rehnquist that corporations do not, I think see against Seattle suggest that business premises do not under the Fifth Amendment certainly where even if you have got a corporation which can be pierced for the purpose of attaching liability to a private individual nevertheless, that corporation has no privilege under the Fifth Amendment, and for that reason I think it is really no occasion after in effect 700 years of history and almost 200 years under our constitution to use this case to overturn practices that are common at every level of government, state, local, and federal and not just for tax collection but also for execution of judgments.

Justice Harry A. Blackmun: In that connection following through on Justice Rehnquist question do you have any comment about Silverthorne?

Mr. Robert H. Bork: I do not think I do Mr. Justice Blackmun unless it --

Justice Harry A. Blackmun: So I take it as --

Mr. Robert H. Bork: It was a sweeping use of -- I have a comment about, I do not get relevant.

My comment I hope is relevant, it was a sweeping seizure of records of a corporation, which were then to be used for investigatory purposes and that is not true here.

It merely seizing documents as assets and as leads to assets.

Justice Harry A. Blackmun: To satisfy the judgment’s element.

Mr. Robert H. Bork: To satisfy the element of judgment.

Justice John Paul Stevens: The purpose of seizing the documents solely as leads to assets would be sufficient to justify a warrant-less entry into the office?

Mr. Robert H. Bork: Yes, Mr. Justice Stevens.

Although there was the additional purpose.

Justice John Paul Stevens: I understand.

Mr. Robert H. Bork: They did not know the records when they went in, they went into to seize all assets as they did and we ask if the judgment of the Court of Appeals therefore be affirmed.

Chief Justice Warren E. Burger: Thank you Mr. Solicitor General.

Mr. Leedy, do you have anything further?

You have about five minutes.

Rebuttal of Richard J. Leedy

Mr. Richard J. Leedy: I was going to indicate I believe my time is almost gone Mr. Chief Justice.

May it please the Court.

There is one issue I would like to take with the Solicitor General that appeared in the brief and also appears in the argument here and that is that the seizure of the assets is not a seizure within the meaning of the Fourth Amendment and not entitled as Protection because in essence they are seizing a property interest and there is therefore no violation of a privacy interest.

I would take issue of that as I understand the right to privacy, the right to be at let alone from government interference.

I would think it is particularly acute when in fact a premise is entered into, but also when the property is seized and one is dispossessed as the ownership of the property.

I think that that is just as much a violation of a privacy interest as it is a property interest and I would cite this Court to it’s case in 1-1958 Plymouth Sedan v. Pennsylvania, which is 380 U.S. 693 which is a forfeiture proceeding against an automobile where in this Court held that the Fourth Amendment applied when seeking to deprive an owner of the ownership of this property.

Consequently, I believe it is superficial to say that all we are doing is dispossessing a person of a property interest, therefore, no privacy interest is affected and therefore the Fourth Amendment does not apply.

I believe that privacy interests are affected when a person’s property is taken away from you.

Justice Byron R. White: Mr. Leedy before you sit down, will you refresh my recollection on just exactly what the posture of Mr. Norman III, the son, is in the litigation now.

Is he advancing the arguments that you are making?

Mr. Richard J. Leedy: No, Your Honor.

The original case was brought by the petitioner.

Subsequent to the bringing of the original case, the IRS seized additional assets from the son.

He then intervened in this action and one in the Trial Court and the IRS did not appeal the decision as to him but returned the assets to him.

Justice Byron R. White: And he does not have any pending claim for damages or anything like that?

The reason I asked --

Mr. Richard J. Leedy: Yes, I think there would be, Your Honor.

Yes, because they returned the stock to him but the value may have declined.

Yes, I believe there was.

Justice Byron R. White: Yes, he is still (Inaudible).

The reason I ask is that, are we concerned at all with the status of these premises as a residence or are we not, because in corporation we only argue the impact on itself with the entry.

Mr. Richard J. Leedy: The only person before this Court is G.M. Leasing Corporation, the petitioner.

The IRS conceded the correctness of the Trial Court’s decision with respect to the son.

That is the only way, I do not know how to answer, but technically, I presume he is entitled to a hearing on damages in the Trial Court.

Justice Byron R. White: But in any event in this Court we are only concerned with the status of G.M. Leasing Corporation.

Mr. Richard J. Leedy: Yes sir.

Justice Byron R. White: Its interest in the premises.

Mr. Richard J. Leedy: Yes sir, thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.