Backer v. Commissioner

Sidney Backer (defendant) was a certified public accountant who prepared tax returns for Walter D. Williams, Jr. The Internal Revenue Service (IRS) (plaintiff) investigated Williams’s financial affairs and subpoenaed Backer to testify before an IRS special agent. Williams and Backer had both hired Cubbedge Snow to represent them. Snow accompanied Backer to testify before the special agent, and the special agent stated that Snow, as attorney for the taxpayer, could not be present. Backer declined to be questioned without his attorney, arguing that the Administrative Procedure Act (APA) granted a person the right to be accompanied by an attorney at any administrative proceeding that the person was compelled to attend. The commissioner of the IRS filed a petition in federal district court to compel Backer’s attendance without the presence of the taxpayer’s attorney. The commissioner relied on his own policy, which was created prior to enactment of the APA, that required the exclusion of the taxpayer’s attorney at a third-party witness’s questioning. The district court determined that Backer had individually retained and paid Snow to represent him separately from Williams. However, the court required Backer to appear for questioning without Snow in order to avoid the possibility of prejudicing the investigation. Backer appealed.