author:
Per Curiam. Justice Powell, Justice Rehnquist,
      Justice Brennan, Justice White and Justice Stevens, Justice Marshall,

text:
    WOODARD, SECRETARY OF CORRECTIONS OF NORTH CAROLINA, et al. v. HUTCHINS
    No. A-557.
    Decided January 13, 1984
   Per Curiam.

This matter comes to the Court on the application of the State of North Carolina to vacate an order of a single Circuit Judge of the United States Court of Appeals for the Fourth Circuit, granting, at 12:05 a. m. today, respondent’s application for a stay of execution. Circuit Judge Phillips had jurisdiction to consider respondent’s application pursuant to 28 U. S. C. § 1651; accordingly, this Court has jurisdiction to consider the State’s application. A transcript of Judge Phillips’ opinion is before the Court. The application to vacate the stay of execution entered today, January 13, 1984, by Circuit Judge Phillips, was presented to the Chief Justice and by him referred to the Court.

The application to vacate said stay is granted.

It is so ordered.

Justice Powell,

joined by The Chief Justice and Justice Blackmun, Justice Rehnquist, and Justice O’Connor,

concurring.

Unlike Justices White and Stevens, I do not believe that under the circumstances of this case the District Court was obligated to rule on this successive petition for writ of habeas corpus.

This is another capital case in which a last-minute application for a stay of execution and a new petition for habeas corpus relief have been filed with no explanation as to why the claims were not raised earlier or why they were not all raised in one petition. It is another example of abuse of the writ.

On September 21, 1979, a jury convicted James Hutchins of two counts of first-degree murder and one count of murder in the second degree. He was sentenced to death. It is not denied that he deliberately murdered three policemen. After exhausting his state remedies, on September 24, 1982, Hutchins filed his first petition for federal habeas corpus in the United States District Court for the Western District of North Carolina. This was denied after an evidentiary hearing, and the United States Court of Appeals for the Fourth Circuit affirmed in a full opinion. Hutchins v. Garrison, 724 F. 2d 1425 (1983). On January 4, 1984, Hutchins filed a petition for certiorari with this Court seeking review of that decision.

Hutchins raised three claims in this habeas petition: (i) that his Sixth Amendment right to effective assistance of counsel had been denied because of a breakdown in communications with his court-appointed counsel; (ii) that the state trial court abused its discretion in denying defense counsel’s motion for a continuance; and (iii) that imposition of the death penalty in his case was unconstitutional because the Eighth Amendment prohibits capital punishment of a person who is “mentally or emotionally distressed” at the time of the crime. This Court, after careful consideration, denied certiorari on January 11, 1984. Post, p. 1065. That same day Hutchins began anew his quest for postconviction relief, raising claims previously not raised.

After both the North Carolina trial court and the North Carolina Supreme Court denied Hutchins’ new claims for postconviction relief, he filed a second petition in District Court on January 12, 1984. This raised three new claims: that he had new evidence of his alleged insanity at the time of the crime; that he had evidence that he currently is insane; and that the jury selection process was unconstitutional. Hutchins offers no explanation for having failed to raise these claims in his first petition for habeas corpus, and I see none. Successive petitions for habeas corpus that raise claims deliberately withheld from prior petitions constitute an abuse of the writ.

Title 28 U. S. C. § 2244 makes clear the power of the federal courts to eliminate the unnecessary burden placed on them by successive habeas applications by state prisoners. It provides:

“(b) When after an evidentiary hearing on the merits ... [a federal court or federal judge has denied a petition for federal habeas corpus], a subsequent application for a writ of habeas corpus in behalf of such person need not be entertained by a court of the United States or a justice or judge of the United States . . . unless the court, justice, or judge is satisfied that the applicant has not on the earlier application deliberately withheld the newly asserted ground or otherwise abused the writ.”

See also 28 U. S. C. §2254 Rule 9(b).

This case is a clear example of the abuse of the writ that § 2244(b) was intended to eliminate. All three of Hutchins’ claims could and should have been raised in his first petition for federal habeas corpus. The new evidence that Hutchins offers to support his claim that he was insane at the time of the crime is the report of a forensic psychiatrist prepared after a January 2, 1984, psychiatric examination. Hutchins, convicted some four years ago, and frequently before courts during the intervening years, does not explain why this examination was not conducted earlier. He does not claim that his alleged insanity is a recent development. In light of his claim that he also was insane at the time of the crime, such an assertion would be implausible. Finally, Hutchins does not explain why he failed to include his challenge to the jury selection in his prior habeas petition.

A pattern seems to be developing in capital eases of multiple review in which claims that could have been presented years ago are brought forward — often in a piecemeal fashion — only after the execution date is set or becomes imminent. Federal courts should not continue to tolerate — even in capital cases — this type of abuse of the writ of habeas corpus.

Justice Rehnquist,

with whom Justice O’Connor joins, concurring.

Unlike our Brothers White and Stevens, we believe that the District Court is not obligated to rule on every llth-hour petition for habeas corpus before it denies a stay. But assuming that the merits of the Witherspoon aspect of Judge Phillips’ order granting the stay are necessarily before us, we find that nothing in the material presented by respondent would show that the particular jurors who sat in his case were “less than neutral with respect to guilt.” Witherspoon v. Illinois, 391 U. S. 510, 520, n. 18 (1968). Absent such a showing, there can be no claim that respondent was denied this aspect of his right to a fair and impartial jury under the Sixth and Fourteenth Amendments, or that he would be subject to cruel and unusual punishment under the Eighth and Fourteenth Amendments.

Justice Brennan,

dissenting.

I find the Court’s decision to vacate the stay of execution in this case simply incomprehensible. The stay was granted early this morning, at 12:05, by Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit. Judge Phillips correctly decided that a stay was necessary in order to preserve a substantial issue raised by the condemned prisoner, James Hutchins. That issue — whether the exclusion for cause of potential jurors unequivocally opposed to the death penalty resulted in a biased jury during the guilt phase of the trial proceedings against Hutchins — is currently the subject of a conflict between judges of the District Court for the Western District of North Carolina and remains undecided by this Court.

As the Court recognizes, Judge Phillips had jurisdiction over this case. Late yesterday, Hutchins filed a petition for a writ of habeas corpus and an application for a stay of execution in the court of District Judge Woodrow W. Jones. Chief Judge Jones, however, acted only to deny the application, leaving in limbo Hutchins’ petition for habeas corpus. After taking this action, Chief Judge Jones apparently went home. As a result, when Hutchins approached Judge Phillips for relief, Judge Phillips was faced with an application to stay the execution scheduled to take place within a matter of hours, appended to which was a copy of Hutchins’ petition for habeas corpus that had been left undecided by the District Court.

Judge Phillips, knowing that a petition for a writ of habeas corpus was then pending in the District Court, and would not be decided before Hutchins’ execution, correctly issued the stay to preserve the issue noted above. As Justice White and Justice Stevens note, the stay was properly issued to allow the District Court to act on the habeas petition. In addition, under 28 U. S. C. §2241, it was appropriate for Judge Phillips to treat the papers filed with him as an independent petition for a writ of habeas corpus, refer that petition to the District Court, and grant a stay under 28 U. S. C. §2251 pending decision by the District Court. See also All Writs Act, 28 U. S. C. § 1651.

Despite its holding that Judge Phillips had jurisdiction to issue the stay, the Court has inexplicably concluded that Judge Phillips improperly exercised that jurisdiction. A stay issued by a lower court, however, should be vacated only upon a showing that issuance of the stay was an abuse of discretion. Far from being an abuse of discretion, the action of Judge Phillips was eminently reasonable and correct. Not only is there at least one other federal judge in Judge Phillips’ own Circuit who has ruled favorably on the merits of this question, see Keeten v. Garrison, 578 F. Supp. 1164 (WDNC 1984), and at least one District Court in Arkansas that has reached a similar conclusion, see Grigsby v. Mabry, 569 F. Supp. 1278 (ED Ark. 1983), appeal pending, No. 83-2113 (CA8, filed Aug. 8, 1983), but also this Court itself has recognized the potential validity of the claim. See, e. g., Witherspoon v. Illinois, 391 U. S. 510, 516-518 (1968); Bumper v. North Carolina, 391 U. S. 543, 545, and nn. 5, 6 (1968). See also Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 Mich. L. Rev. 1 (1982).

Finally, the State argues that Hutchins should pursue state-court remedies in light of yesterday’s Keeten decision. While this obviously is not the basis of the Court’s vacation of the stay, this in any event is a literal impossibility given the 6 p.m. deadline for execution. Indeed, in light of the constraints imposed on our deliberations by that deadline, the most disturbing aspect of the Court’s decision is its indefensible — and unexplained — rush to judgment. When a life is at stake, the process that produces this result is surely insensitive, if not ghoulish.

I dissent.

Justice White and Justice Stevens,

dissenting.

We would not vacate the stay because the District Court did not pass on the merits of the habeas corpus petition and the stay was entered by a Court of Appeals Judge until the District Court performs its duty and acts on the habeas petition. Until the merits of the petition are addressed below or it is there held that there has been abuse of the writ, we would leave the stay in effect. That is the orderly procedure it seems to us. It also seems to us that the Court’s opaque per curiam opinion vacating the stay comes very close to a holding that a second petition for habeas corpus should be considered as an abuse of the writ and for that reason need not be otherwise addressed on the merits. We are not now prepared to accept such a per se rule.

Justice Marshall,

dissenting.

At 12:05 a. m. today, Judge James Dickson Phillips of the United States Court of Appeals for the Fourth Circuit granted respondent Hutchins’ application for a stay of execution. Less than an hour after the stay was issued, attorneys from the North Carolina Attorney General’s Office filed in this Court a 3V2-page, handwritten application to vacate Judge Phillips’ stay. Without taking time to consider the basis of Judge Phillips’ stay — indeed without waiting to receive the final draft of Judge Phillips’ memorandum opinion — the Court has granted the application, apparently so that North Carolina can proceed with Hutchins’ execution before his death warrant expires at 6 o’clock this evening. Given the posture of this application and the dire consequences of error, I find the Court’s haste outrageous.

Without any explanation, the Court takes the position that Judge Phillips somehow erred in granting a stay of Hutchins’ execution. As Justice Brennan has shown, ante, at 382, Judge Phillips’ decision to grant the stay was a prudent exercise of authority taken by a federal judge under serious time constraints and dealing with considerable uncertainty. What is incredible about this Court’s decision is that five Members of the Court have voted to vacate Judge Phillips’ stay without even reading his opinion or fully considering respondent’s defense of the stay. Indeed, at the present time, the Court does not even have before it a full record of the case. In all candor, if there is abuse of federal power in this matter, it is to be found in our own Chambers.

Ironically, the Court’s zealous efforts to authorize Hutch-ins’ execution at the last minute may be futile. The North Carolina death penalty statute apparently requires that a new date of execution must be set whenever a stay of execution is issued and then vacated. N. C. Gen. Stat. § 15-194 (1983). Since Judge Phillips indisputably issued a stay of execution and the Court now vacates the stay, North Carolina law would seem to require that a new date of execution now be set. Of course, the meaning of this provision is a question of North Carolina law, and is therefore to be decided by North Carolina courts. I trust, however, that the responsible North Carolina officials will consider whether Hutchins has a valid claim under this provision before the State proceeds with Hutchins’ execution.

I dissent.

       It would have been preferable had the District Court stated expressly that it would not entertain this successive petition because it constituted an abuse of the writ. Nevertheless, it is clear that the petition in this case was an abuse.

       See the per curiam opinion of this Court, ante, p. 377, vacating the stay entered by Judge Phillips for the procedural posture of the case here.

       There is no affirmative evidence that the claims were deliberately withheld. But Hutchins has had counsel through the various phases of this case, and no explanation has been made as to why they were not raised until the very eve of the execution date.

       Hutchins’ case has been reviewed by at least seven courts, including this Court, and more than 25 judges.

      As Justice Marshall points out, the Court’s zealous efforts to reimpose Hutchins’ execution at the last minute may therefore be futile. North Carolina’s death penalty statute requires that a new date of execution be set once a stay of execution, issued by a court of competent jurisdiction, is terminated. N. C. Gen. Stat. § 15-194 (1983). As we have noted, the Court holds that Judge Phillips had jurisdiction to issue his stay. It thus appears that the North Carolina statute is applicable and will require that Hutchins’ execution be postponed.

       Much of the State’s application involves a challenge to Judge Phillips’ jurisdiction and an argument that Hutchins is procedurally barred from raising his juror-bias claim in federal court. The majority apparently agrees with respondent that these threshold claims are insubstantial.

       Early this morning, the Court received over the telephone a short summary of Judge Phillips’ decision, which the Clerk’s Office transcribed. That brief, preliminary draft concluded with the statement, “l will say roughly the foregoing in a very short memorandum opinion that I will file tomorrow.”

       In addition to the State’s handwritten application, the Court has received over the course of the day Hutchins’ response to the State’s application and supplemental handwritten papers from both parties. Although respondent has filed various briefs that he presented to other courts in this litigation, neither party has filed a complete transcript of the trial court voir dire, at which the deprivation of Hutchins’ constitutional rights allegedly took place.

       The relevant statute reads: “Whenever ... a stay of execution granted by any competent judicial tribunal... has expired or been terminated,... a hearing shall be held in a superior court... to fix a new date for the execution of the original sentence. . . . The judge shall set the date of execution for not less than 60 days nor more than 90 days from the date of the hearing.” N. C. Gen. Stat. § 15-194 (1983) (emphasis added). The majority’s per curiam clearly concludes that Judge Phillips was a competent judicial tribunal with jurisdiction to issue a stay. See n. 1, supra.

       Common decency demands such a postponement, especially since, under North Carolina law, Hutchins must already have been notified of his reprieve by Judge Phillips. See N. C. Gen. Stat. § 15-193 (1983).


source: Caselaw Access Project

author: Justice Blackmun Justice Stevens,

license: Public Domain

text:
    BADARACCO et al. v. COMMISSIONER OF INTERNAL REVENUE
    No. 82-1453.
    Argued November 28, 1983
    Decided January 17, 1984

      Barry I. Fredericks argued the cause for petitioners in both cases and filed briefs for petitioner in No. 82-1509. John J. O’Toole and Edwin Fradkin filed a brief for petitioners in No. 82-1458.

      Albert G. Lauber, Jr., argued the cause for respondents in both cases. With him on the brief were Solicitor General Lee, Assistant Attorney General Archer, Gary R. Allen, and John A. Dudeck, Jr.

      Together with No. 82-1509, Deleet Merchandising Corp. v. United States, also on certiorari to the same court.

   Justice Blackmun

delivered the opinion of the Court.

These cases focus upon §6501 of the Internal Revenue Code of 1954, 26 U. S. C. § 6501. Subsection (a) of that statute establishes a general 3-year period of limitations “after the return was filed” for the assessment of income and certain other federal taxes. Subsection (c)(1) of §6501, however, provides an exception to the 3-year period when there is “a false or fraudulent return with the intent to evade tax.” The tax then may be assessed “at any time.”

The issue before us is the proper application of §§ 6501(a) and (c)(1) to the situation where a taxpayer files a false or fraudulent return but later files a nonfraudulent amended return. May a tax then be assessed more than three years after the filing of the amended return?

l-H

No. 82-11*58. Petitioners Ernest Badaracco, Sr., and Ernest Badaracco, Jr., were partners in an electrical contracting business. They filed federal partnership and individual income tax returns for the calendar years 1965-1969, inclusive. “[F]or purposes of this case,” these petitioners concede the “fraudulent nature of the original returns.” App. 37a.

In 1970 and 1971, federal grand juries in New Jersey subpoenaed books and records of the partnership. On August 17, 1971, petitioners filed nonfraudulent amended returns for the tax years in question and paid the additional basic taxes shown thereon. Three months later, petitioners were indicted for filing false and fraudulent returns, in violation of §7206(1) of the Code, 26 U. S. C. §7206(1). Each pleaded guilty to the charge with respect to the 1967 returns, and judgments of conviction were entered. United States v. Badaracco, Crim. No. 766-71 (NJ). The remaining counts of the indictment were dismissed.

On November 21,1977, the Commissioner of Internal Revenue mailed to petitioners notices of deficiency for each of the tax years in question. He asserted, however, only the liability under § 6653(b) of the Code, 26 U. S. C. § 6653(b), for the addition to tax on account of fraud (the so-called fraud “penalty”) of 50% of the underpayment in the basic tax. See App. 5a.

Petitioners sought redetermination in the United States Tax Court of the asserted deficiencies, contending that the Commissioner’s action was barred by § 6501(a). They claimed that § 6501(c)(1) did not apply because the 1971 filing of nonfraudulent amended returns caused the general 3-year period of limitations specified in § 6501(a) to operate; the deficiency notices, having issued in November 1977, obviously were forthcoming only long after the expiration of three years from the date of filing of the nonfraudulent amended returns.

The Tax Court, in line with its then-recent decision in Klemp v. Commissioner, 77 T. C. 201 (1981), appeal pending, No. 81-7744 (CA9), agreed with petitioners. 42 TCM 573 (1981), ¶ 81, 404 P-H Memo TC.

No. 82-1509. Petitioner Deleet Merchandising Corp. filed timely corporation income tax returns for the calendar years 1967 and 1968. The returns as so filed, however, did not report certain receipts derived by the taxpayer from its printing supply business. On August 9, 1973, Deleet filed amended returns for 1967 and 1968 disclosing the receipts that had not been reported. Although the taxpayer corporation itself was not charged with criminal tax violations, and although no formal criminal investigation was initiated as to it, there were criminal and civil investigations that centered on certain former officers of the taxpayer. After the completion of those investigations, the Commissioner, on December 14, 1979, issued a notice of deficiency to Deleet. App. 71a. The notice asserted deficiencies in tax and additions under § 6653(b) for 1967 and 1968.

Deleet paid the alleged deficiencies and brought suit for their refund in the United States District Court for the District of New Jersey. On its motion for summary judgment, Deleet contended that the Commissioner’s action was barred by § 6501(a). It claimed that no deficiencies or additions could be assessed more than three years after the amended returns were filed, regardless of whether the original returns were fraudulent.

The District Court agreed and granted summary judgment for Deleet. 535 F. Supp. 402 (1981). It relied on the Tax Court’s decision in Klemp v. Commissioner, supra, and on Dowell v. Commissioner, 614 F. 2d 1263 (CA10 1980), cert. pending, No. 82-1873.

The Appeals. The Government appealed each case to the United States Court of Appeals for the Third Circuit. The cases were heard and decided together. That court, by a 2-to-l vote, reversed the decision of the Tax Court in Badaracco and the judgment of the District Court in Deleet. 693 F. 2d 298 (1982). The Third Circuit’s ruling is consistent with the Fifth Circuit’s holding in Nesmith v. Commissioner, 699 F. 2d 712 (1983), cert. pending, No. 82-2008. The Second Circuit has ruled otherwise. See Britton v. United States, 532 F. Supp. 275 (Vt. 1981), affirmance order, 697 F. 2d 288 (CA2 1982). See also Espinoza v. Commissioner, 78 T. C. 412 (1982). Because of the conflict, we granted certiorari, 461 U. S. 925 (1983).

l — i f

Our task here is to determine the proper construction of the statute of limitations Congress has written for tax assessments. This Court long ago pronounced the standard: “Statutes of limitation sought to be applied to bar rights of the Government, must receive a strict construction in favor of the Government.” E. I. du Pont de Nemours & Co. v. Davis, 264 U. S. 456, 462 (1924). See also Lucas v. Pilliod Lumber Co., 281 U. S. 245, 249 (1930). More recently, Judge Roney, in speaking for the former Fifth Circuit, has observed that “limitations statutes barring the collection of taxes otherwise due and unpaid are strictly construed in favor of the Government.” Lucia v. United States, 474 F. 2d 565, 570 (1973).

We naturally turn first to the language of the statute. Section 6501(a) sets forth the general rule: a 3-year period of limitations on the assessment of tax. Section 6501(e)(1)(A) (first introduced as § 275(c) of the Revenue Act of 1934, 48 Stat. 745) provides an extended limitations period for the situation where the taxpayer’s return nonfraudulently omits more than 25% of his gross income; in a situation of that kind, assessment now is permitted “at any time within 6 years after the return was filed.”

Both the 3-year rule and the 6-year rule, however, explicitly are made inapplicable in circumstances covered by § 6501(c). This subsection identifies three situations in which the Commissioner is allowed an unlimited period within which to assess tax. Subsection (c)(1) relates to “a false or fraudulent return with the intent to evade tax” and provides that the tax then may be assessed “at any time.” Subsection (c)(3) covers the case of a failure to file a return at all (whether or not due to fraud) and provides that an assessment then also may be made “at any time.” Subsection (c)(2) sets forth a similar rule for the case of a “willful attempt in any manner to defeat or evade tax” other than income, estate, and gift taxes.

All these provisions appear to be unambiguous on their face, and it therefore would seem to follow that the present cases are squarely controlled by the clear language of § 6501(c)(1). Petitioners Badaracco concede that they filed initial returns that were “false or fraudulent with the intent to evade tax.” Petitioner Deleet, for present purposes, upon this review of its motion for summary judgment, is deemed to have filed false or fraudulent returns with the intent to evade tax. Section 6501(c)(1), with its unqualified language, then allows the tax to be assessed “at any time.” Nothing is present in the statute that can be construed to suspend its operation in the light of a fraudulent filer’s subsequent repentant conduct. Neither is there anything in the wording of § 6501(a) that itself enables a taxpayer to reinstate the section’s general 3-year limitations period by filing an amended return. Indeed, as this Court recently has noted, Hillsboro National Bank v. Commissioner, 460 U. S. 370, 378-380, n. 10 (1983), the Internal Revenue Code does not explicitly provide either for a taxpayer’s filing, or for the Commissioner’s acceptance, of an amended return; instead, an amended return is a creature of administrative origin and grace. Thus, when Congress provided for assessment at any time in the case of a false or fraudulent “return,” it plainly included by this language a false or fraudulent original return. In this connection, we note that until the decision of the Tenth Circuit in Dowell v. Commissioner, 614 F. 2d 1263 (1980), cert. pending, No. 82-1873, courts consistently had held that the operation of § 6501 and its predecessors turned on the nature of the taxpayer’s original, and not his amended, return.

The substantive operation of the fraud provisions of the Code itself confirms the conclusion that § 6501(c)(1) permits assessment at any time in fraud cases regardless of a taxpayer’s later repentance. It is established that a taxpayer who submits a fraudulent return does not purge the fraud by subsequent voluntary disclosure; the fraud was committed, and the offense completed, when the original return was prepared and filed. See, e. g., United States v. Habig, 390 U. S. 222 (1968); Plunkett v. Commissioner, 465 F. 2d 299, 302-303 (CA7 1972). “Any other result would make sport of the so-called fraud penalty. A taxpayer who had filed a fraudulent return would merely take his chances that the fraud would not be investigated or discovered, and then, if an investigation were made, would simply pay the tax which he owed anyhow and thereby nullify the fraud penalty.” George M. Still, Inc. v. Commissioner, 19 T. C. 1072, 1077 (1953), aff’d, 218 F. 2d 639 (CA2 1955). In short, once a fraudulent return has been filed, the case remains one “of a false or fraudulent return,” regardless of the taxpayer’s later revised conduct, for purposes of criminal prosecution and civil fraud liability under § 6653(b). It likewise should remain such a case for purposes of the unlimited assessment period specified by § 6501(c)(1).

We are not persuaded by Deleet’s suggestion, Brief for Petitioner in No. 82-1509, p. 15, that § 6501(c)(1) should be read merely to suspend the commencement of the limitations period while the fraud remains uncorrected. The Tenth Circuit, in Dowell v. Commissioner, supra, made an observation to that effect, stating that the 3-year limitations period was “put in limbo” pending further taxpayer action. 614 F. 2d, at 1266. The language of the statute, however, is contrary to this suggestion. Section 6501(c)(1) does not “suspend” the operation of § 6501(a) until a fraudulent filer makes a voluntary disclosure. Section 6501(c)(1) makes no reference at all to § 6501(a); it simply provides that the tax may be assessed “at any time.” And § 6501(a) itself contains no mechanism for its operation when a fraudulent filer repents. By its very terms, it does not apply to a case, such as one of “a false or fraudulent return,” that is “otherwise provided” for in § 6501. When Congress intends only a temporary suspension of the running of a limitations period, it knows how unambiguously to accomplish that result. See, e. g., §§ 6503(a)(1), (a)(2), (b), (c), and (d).

The weakness of petitioners’ proposed statutory construction is demonstrated further by its impact on § 6501(e)(1)(A), which provides an extended limitations period whenever a taxpayer’s return nonfraudulently omits more than 25% of his gross income.

Under petitioners’ reasoning, a taxpayer who fraudulently omits 25% of his gross income gains the benefit of the 3-year limitations period by filing an amended return. Yet a taxpayer who nonfraudulently omits 25% of his gross income cannot gain that benefit by filing an amended return; instead, he must live with the 6-year period specified in § 6501(e) (1)(A). We agree with the conclusion of the Court of Appeals in the instant cases that Congress could not have intended to “create a situation in which persons who committed willful, deliberate fraud would be in a better position” than those who understated their income inadvertently and without fraud. 693 P. 2d, at 302.

We therefore conclude that the plain and unambiguous language of § 6501(c)(1) would permit the Commissioner to assess “at any time” the tax for a year in which the taxpayer has filed “a false or fraudulent return,” despite any subsequent disclosure the taxpayer might make. Petitioners attempt to evade the consequences of this language by arguing that their original returns were “nullities.” Alternatively, they urge a nonliteral construction of the statute based on considerations of policy and practicality. We now turn successively to those proposals.

r-H H-4

Petitioners argue that their original returns, to the extent they were fraudulent, were “nullities” for statute of limitations purposes. See Brief for Petitioners in No. 82-1453, pp. 22-27; Brief for Petitioner in No. 82-1509, pp. 32-34. Inasmuch as the original return is a nullity, it is said, the amended return is necessarily “the return” referred to in § 6501(a). And if that return is nonfraudulent, § 6501(c)(1) is inoperative and the normal 3-year limitations period applies. This nullity notion does not persuade us, for it is plain that “the return” referred to in § 6501(a) is the original, not the amended, return.

Petitioners do not contend that their fraudulent original returns were nullities for purposes of the Code generally. There are numerous provisions in the Code that relate to civil and criminal penalties for submitting or assisting in the preparation of false or fraudulent returns; their presence makes clear that a document which on its face plausibly purports to be in compliance, and which is signed by the taxpayer, is a return despite its inaccuracies. See, e. g., §§7207, 6531(3), 6653(b). Neither do petitioners contend that their original returns were nullities for all purposes of § 6501. They contend, instead, that a fraudulent return is a nullity only for the limited purpose of applying § 6501(a). See Brief for Petitioners in No. 82-1453, p. 24; Brief for Petitioner in No. 82-1509, pp. 33-34. The word “return,” however, appears no less than 64 times in § 6501. Surely, Congress cannot rationally be thought to have given that word one meaning in § 6501(a), and a totally different meaning in §§ 6501(b) through (q).

Zellerbach Paper Co. v. Helvering, 293 U. S. 172 (1934), which petitioners cite, affords no support for their argument. The Court in Zellerbach held that an original return, despite its inaccuracy, was a “return” for limitations purposes, so that the filing of an amended return did not start a new period of limitations running. In the instant cases, the original returns similarly purported to be returns, were sworn to as such, and appeared on their faces to constitute endeavors to satisfy the law. Although those returns, in fact, were not honest, the holding in Zellerbach does not render them nullities. To be sure, current Regulations, in several places, e. g., Treas. Reg. §§301.6211-l(a), 301.6402-3(a), 1.451-l(a), and 1.461-l(a)(3)(i) (1983), do refer to an amended return, as does § 6213(g)(1) of the Code itself, 26 U. S. C. § 6213(g)(1) (1976 ed., Supp. V). None of these provisions, however, requires the filing of such a return. It does not follow from all this that an amended return becomes “the return” for purposes of § 6501(a).

We conclude, therefore, that nothing in the statutory language, the structure of the Code, or the decided cases supports the contention that a fraudulent return is a nullity for statute of limitations purposes.

IV

Petitioners contend that a nonliteral reading should be accorded the statute on grounds of equity to the repentant taxpayer and tax policy. “Once a taxpayer has provided the information upon which the Government may make a knowledgeable assessment, the justification for suspending the limitations period is no longer viable and must yield to the favored policy of limiting the Government’s time to proceed against the taxpayer.” Brief for Petitioner in No. 82-1509, p. 12. See also Brief for Petitioners in No. 82-1453, p. 17.

The cases before us, however, concern the construction of existing statutes. The relevant question is not whether, as an abstract matter, the rule advocated by petitioners accords with good policy. The question we must consider is whether the policy petitioners favor is that which Congress effectuated by its enactment of §6501. Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement. See TVA v. Hill, 437 U. S. 153, 194-195 (1978). This is especially so when courts construe a statute of limitations, which “must receive a strict construction in favor of the Government.” E. I. du Pont de Nemours & Co. v. Davis, 264 U. S., at 462.

We conclude that, even were we free to do so, there is no need to twist § 6501(c)(1) beyond the contours of its plain and unambiguous language in order to comport with good policy, for substantial policy considerations support its literal language. First, fraud cases ordinarily are more difficult to investigate than cases marked for routine tax audits. Where fraud has been practiced, there is a distinct possibility that the taxpayer’s underlying records will have been falsified or even destroyed. The filing of an amended return, then, may not diminish the amount of effort required to verify the correct tax liability. Even though the amended return proves to be an honest one, its filing does not necessarily “re-mov[e] the Commissioner from the disadvantageous position in which he was originally placed.” Brief for Petitioners in No. 82-1453, p. 12.

Second, the filing of a document styled “amended return” does not fundamentally change the nature of a tax fraud investigation. An amended return, however accurate it ultimately may prove to be, comes with no greater guarantee of trustworthiness than any other submission. It comes carrying no special or significant imprimatur; instead, it comes from a taxpayer who already has made false statements under penalty of perjury. A responsible examiner cannot accept the information furnished on an amended return as a substitute for a thorough investigation into the existence of fraud. We see no “tax policy” justification for holding that an amended return has the singular effect of shortening the unlimited assessment period specified in §§ 6501(c)(1) to the usual three years. Fraud cases differ from other civil tax cases in that it is the Commissioner who has the burden of proof on the issue of fraud. See § 7454(a) of the Code, 26 U. S. C. § 7454(a). An amended return, of course, may constitute an admission of substantial underpayment, but it will not ordinarily constitute an admission of fraud. And the three years may not be enough time for the Commissioner to prove fraudulent intent.

Third, the difficulties that attend a civil fraud investigation are compounded where, as in No. 82-1453, the Commissioner’s initial findings lead him to conclude that the case should be referred to the Department of Justice for criminal prosecution. The period of limitations for prosecuting criminal tax fraud is generally six years. See § 6531. Once a criminal referral has been made, the Commissioner is under well-known restraints on the civil side and often will find it difficult to complete his civil investigation within the normal 3-year period; the taxpayer’s filing of an amended return will not make any difference in this respect. See United States v. La-Salle National Bank, 437 U. S. 298, 311-313 (1978); see also Tax Equity and Fiscal Responsibility Act of 1982, Pub. L. 97-248, § 333(a), 96 Stat. 622. As a practical matter, therefore, the Commissioner frequently is forced to place a civil audit in abeyance when a criminal prosecution is recommended.

We do not find petitioners’ complaint of “unfair treatment” persuasive. Petitioners claim that it is unfair “to forever suspend a Sword of Damocles over a taxpayer who at one time may have filed a fraudulent return, but who has subsequently recanted and filed an amended return providing the Government with all the information necessary to properly assess the tax.” Brief for Petitioner in No. 82-1509, p. 26. See Brief for Petitioners in No. 82-1453, p. 16. But it seems to us that a taxpayer who has filed a fraudulent return with intent to evade tax hardly is in a position to complain of the fairness of a rule that facilitates the Commissioner’s collection of the tax due. A taxpayer who has been the subject of a tax fraud investigation is not likely to be surprised when a notice of deficiency arrives, even if it does not arrive promptly after he files an amended return.

Neither are we persuaded by Deleet’s argument that a literal reading of the statute “punishes” the taxpayer who repentantly files an amended return. See Brief for Petitioner in No. 82-1509, p. 44. The amended return does not change the status of the taxpayer; he is left in precisely the same position he was in before. It might be argued that Congress should provide incentives to taxpayers to disclose their fraud voluntarily. Congress, however, has not done so in § 6501. That legislative judgment is controlling here.

V

Petitioners contend, finally, that a literal reading of § 6501(c) produces a disparity in treatment between a taxpayer who in the first instance files a fraudulent return and one who fraudulently fails to file any return at all. This, it is said, would elevate one form of tax fraud over another.

The argument centers in § 6501(c)(3), which provides that in a case of failure to file a return, the tax may be assessed “at any time.” It is settled that this section ceases to apply once a return has been filed for a particular year, regardless of whether that return is filed late and even though the failure to file a timely return in the first instance was due to fraud. See Bennett v. Commissioner, 30 T. C. 114 (1958), acq., 1958-2 Cum. Bull. 3. See also Rev. Rui. 79-178, 1979-1 Cum. Bull. 435. This, however, does not mean that § 6501 should be read to produce the same result in each of the two situations. From the language employed in the respective subsections of § 6501, we conclude that Congress intended different limitations results. Section 6501(c)(3) applies to a “failure to file a return.” It makes no reference to a failure to file a timely return (cf. §§ 6651(a)(1) and 7203), nor does it speak of a fraudulent failure to file. The section literally becomes inapplicable once a return has been filed. Section 6501(c)(1), in contrast, applies in the case of “a false or fraudulent return.” The fact that a fraudulent filer subsequently submits an amended return does not make the case any less one of a false or fraudulent return. Thus, although there may be some initial superficial plausibility to this argument on the part of petitioners, we conclude that the argument cannot prevail. If the result contended for by petitioners is to be the rule, Congress must make it so in clear and unmistakable language.

The judgment of the Court of Appeals in each of these cases is affirmed.

It is so ordered.

Justice Stevens,

dissenting.

The plain language of § 6501(c)(1) of the Internal Revenue Code conveys a different message to me than it does to the Court. That language is clear enough: “In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time.” 26 U. S. C. § 6501(c)(1). What is not clear to me is why this is a case of “a false or fraudulent return.”

In both cases before the Court, the Commissioner assessed deficiencies based on concededly nonfraudulent returns. The taxpayers’ alleged prior fraud was not the basis for the Commissioner’s action. Indeed, whether or not the Commissioner was obligated to accept petitioners’ amended returns, he in fact elected to do so and to use them as the basis for his assessment. When the Commissioner initiates a deficiency proceeding on the basis of a nonfraudulent return, I do not believe that the resulting case is one “of a false or fraudulent return.”

The purpose of the statute supports this reading. The original version of § 6501(c) was enacted in 1921. It was true in 1921, as it is today, that the fraudulent concealment of the facts giving rise to a claim tolled the controlling statute of limitations until full disclosure was made. Fraud did not entirely repeal the bar of limitations; rather the period of limitations simply did not begin to run until the fraud was discovered, or at least discoverable. See, e. g., Exploration Co. v. United States, 247 U. S. 435 (1918). Moreover, this Court soon ruled that if a return constitutes an honest and genuine attempt to satisfy the law, it is sufficient to commence the running of the statute of limitations. Zellerbach Paper Co. v. Helvering, 293 U. S. 172 (1934). The Court has subsequently adhered to this position. See Commissioner v. Lane-Wells Co., 321 U. S. 219 (1944); Germantown Trust Co. v. Commissioner, 309 U. S. 304 (1940). For example, the Court has construed another portion of the statute, dealing with underreporting of income, as inapplicable to returns which disclose the facts forming the basis for the deficiency.

“We think that in enacting [the statute] Congress manifested no broader purpose than to give the Commissioner an additional two years to investigate tax returns in cases where, because of a taxpayer’s omission to report some taxable item, the Commissioner is at a special disadvantage in detecting errors. In such instances the return on its face provides no clue as to the existence of the omitted item. On the other hand, when, as here, the understatement of a tax arises from an error in reporting an item disclosed on the face of the return the Commissioner is at no such disadvantage. ” Colony, Inc. v. Commissioner, 357 U. S. 28, 36 (1958).

In light of the purposes and common-law background of the statute, as well as this Court’s previous treatment of what a “return” sufficient to commence the running of the limitations period is, it seems apparent that an assessment based on a nonfraudulent amended return does not fall within § 6501(c)(1). Once the amended return is filed the rationale for disregarding the limitations period is absent. The period of concealment is over, and under general common-law principles the limitations period should begin to run. The filing of the return means that the Commissioner is no longer under any disadvantage; full disclosure has been made and there is no reason why he cannot assess a deficiency within the statutory period.

The 1921 statute read as follows:

“[I]n the case of a false or fraudulent return with intent to evade tax, or of a failure to file a required return, the amount of tax due may be determined, assessed, and collected, and a suit or proceeding for the collection of such amount may be begun, at any time after it becomes due.” Revenue Act of 1921, § 250(d), 42 Stat. 265.

Under this statute, the filing of a fraudulent return had no greater effect on the limitations period than the filing of no return at all. In either case, since the relevant facts had not been disclosed to the Commissioner, the proper tax could be assessed “at any time.” In 1954 the statute was bifurcated; the provisions relating to a failure to file were placed into § 6501(c)(3). The legislative history of this revision indicates that the division was not intended to change the statute's meaning. This history supports petitioners’ reading of the statute. Fraudulent returns were treated the same as no return at all since neither gives the Commissioner an adequate basis to attempt an assessment. Once that basis is provided, however, the statute is inapplicable; it is no longer a “case of a false or fraudulent return.”

The Commissioner practically concedes as much since he agrees with the ruling in Bennett v. Commissioner, 30 T. C. 114 (1958), acq., 1958-2 Cum. Bull. 3, that if the taxpayer fraudulently fails to file a return, the limitations period nevertheless begins to run once a nonfraudulent return is filed. See also Rev. Rui. 79-178, 1979-1 Cum. Bull. 435. Yet there is nothing in the history of this statute indicating that Congress intended a bifurcated reading of a simple statutory command. There is certainly no logical reason supporting such a result; the Commissioner is if anything under a greater disadvantage when the taxpayer originally filed no return at all, since at least in the (c)(1) situation the Commissioner can compare the two returns. If the Commissioner can assess a deficiency within three years when no return was previously filed, he can do the same if the original return was fraudulent.

Whatever the correct standard for construing a statute of limitations when it operates against the Government, see ante, at 391-392, surely the presumption ought to be that some limitations period is applicable.

“It probably would be all but intolerable, at least Congress has regarded it as ill-advised, to have an income tax system under which there never would come a day of final settlement and which required both the taxpayer and the Government to stand ready forever and a day to produce vouchers, prove events, establish values and recall details of all that goes into an income tax contest. Hence, a statute of limitation is an almost indispensable element of fairness as well as of practical administration of an income tax policy.” Rothensies v. Electric Storage Battery Co., 329 U. S. 296, 301 (1946).

However, under the Commissioner’s position, adopted by the Court today, no limitations period will ever apply to the Commissioner’s actions, despite petitioners’ attempts to provide him with all the information necessary to make a timely assessment.

“Respondent would leave the statute open for that portion of eternity concurrent with the taxpayer’s life, whether he lives 3 score and 10 or as long as Methuselah. In most religions, one can repent and be saved, but in the peculiar tax theology of respondent, no act of contrition will suffice to prevent the statute from running in perpetuity. Merely to state the proposition is to refute it, unless some very compelling reasons of policy require visiting this absurdity on the taxpayer. ” Klemp v. Commissioner, 77 T. C. 201, 207 (1981) (Wilbur, J., concurring).

If anything, considerations of tax policy argue against the result reached by the Court today. In a system based on voluntary compliance, it is crucial that some incentive be given to persons to reveal and correct past fraud. Yet the rule announced by the Court today creates no such incentive; a taxpayer gets no advantage at all by filing an honest return. Not only does the taxpayer fail to gain the benefit of a limitations period, but at the same time he gives the Commissioner additional information which can be used against him at any time. Since the amended return will not give the taxpayer a defense in a criminal or civil fraud action, see ante, at 394, there is no reason at all for a taxpayer to correct a fraudulent return. Apparently the Court believes that taxpayers should be advised to remain silent, hoping the fraud will go undetected, rather than to make full disclosure in a proper return. I cannot believe that Congress intended such a result.

I respectfully dissent.

       Section 6501(a) reads in full:
      “Except as otherwise provided in this section, the amount of any tax imposed by this title shall be assessed within 3 years after the return was filed (whether or not such return was filed on or after the date prescribed) or, if the tax is payable by stamp, at any time after such tax became due and before the expiration of 3 years after the date on which any part of such tax was paid, and no proceeding in court without assessment for the collection of such tax shall be begun after the expiration of such period.”

       Section 6501(c)(1) reads:
      “In the case of a false or fraudulent return with the intent to evade tax, the tax may be assessed, or a proceeding in court for collection of such tax may be begun without assessment, at any time.”

       In Klemp, the Tax Court, in a reviewed decision with five judges dissenting on the issue, departed from its earlier holding in Dowell v. Commissioner, 68 T. C. 646 (1977), rev’d, 614 F. 2d 1263 (CA10 1980), cert. pending, No. 82-1873.

       Deleet asserts that the filing of its amended returns was voluntary. The taxpayer’s correct tax liability has not yet been determined. Although Deleet has not conceded that its original returns were fraudulent, both the District Court, App. to Pet. for Cert. in No. 82-1509, p. 4d, and the Court of Appeals, see 693 F. 2d 298, 299, n. 3 (CA3 1982), assumed, for purposes of Deleet’s summary judgment motion hereinafter referred to, that they were. We must make the same assumption here.

       The Tax Court, in cases concerning several of Deleet’s officers, has followed its ruling in Klemp, supra. See Kramer v. Commissioner, 44 TCM 42 (1982), ¶ 82, 308 P-H Memo TC; Elliott Liroff v. Commissioner, 44 TCM 43 (1982), ¶ 82, 309 P-H Memo TC; Derfel v. Commissioner, 44 TCM 45 (1982), ¶82, 311 P-H Memo TC; Richard B. Liroff v. Commissioner, 44 TCM 47 (1982), ¶ 82, 312 P-H Memo TC. See also Galvin v. Commissioner, 45 TCM 221 (1982), ¶ 82, 689 P-H Memo TC.

       Subsections (c)(1) and (c)(3) appeared separately only upon the enactment of the 1954 Code. From 1921 until the 1954 Code, they were combined. See, e. g., Revenue Act of 1921, § 250(d), 42 Stat. 265; Internal Revenue Code of 1939, § 276(a).

       Under every general income tax statute since 1918, the filing of a false or fraudulent return has indefinitely extended the period of limitations for assessment of tax. See Revenue Act of 1918, § 250(d), 40 Stat. 1083; Revenue Act of 1921, § 250(d), 42 Stat. 265; Revenue Act of 1924, § 278(a), 43 Stat. 299; Revenue Act of 1926, § 278(a), 44 Stat., pt. 2, p. 59; Revenue Act of 1928, § 276(a), 45 Stat. 857; Revenue Act of 1932, § 276(a), 47 Stat. 238; Revenue Act of 1934, § 276(a), 48 Stat. 745; Revenue Act of 1936, § 276(a), 49 Stat. 1726; Revenue Act of 1938, § 276(a), 52 Stat. 540; Internal Revenue Code of 1939, § 276(a).

       The significance of the original, and not the amended, return has been stressed in other, but related, contexts. It thus has been held consistently that the filing of an amended return in a nonfraudulent situation does not serve to extend the period within which the Commissioner may assess a deficiency. See, e. g., Zellerbach Paper Co. v. Helvering, 293 U. S. 172 (1934); National Paper Products Co. v. Helvering, 293 U. S. 183 (1934); National Refining Co. v. Commissioner, 1 B. T. A. 236 (1924). It also has been held that the filing of an amended return does not serve to reduce the period within which the Commissioner may assess taxes where the original return omitted enough income to trigger the operation of the extended limitations period provided by § 6501(e) or its predecessors. See, e. g., Houston v. Commissioner, 38 T. C. 486 (1962); Goldring v. Commissioner, 20 T. C. 79 (1953). And the period of limitations for filing a refund claim under the predecessor of § 6511(a) begins to run on the filing of the original, not the amended, return. Kaltreider Construction, Inc. v. United States, 303 F. 2d 366, 368 (CA3), cert. denied, 371 U. S. 877 (1962).

       In both Dowell and Klemp, the Commissioner had issued his deficiency notices more than three years after the amended returns were filed but within the extended 6-year period after the original returns were filed. The courts in those cases nonetheless ruled the notices untimely. That result flows necessarily from petitioners’ proposed statutory construction. It seems to us, however, to be unacceptably anomalous.

       Petitioners contend that these policy considerations favorable to the Commissioner do not apply on the facts of petitioners’ cases. Brief for Petitioners in No. 82-1453, pp. 33-34; Brief for Petitioner in No. 82-1509, pp. 35-36. This assertion is irrelevant, for the cases involve construction of a statute of limitations, not a question of laches, a defense to which the Government usually is not subject. See United States v. Summerlin, 310 U. S. 414, 416 (1940).

       See generally Brennan, The Uncertain Status of Amended Tax Returns, 7 Rev. of Taxation of Individuals 235, 252-264 (1983).

       Applicable regulations indicate that the amended returns filed by petitioners must be the basis for his assessment. See Treas. Reg. § 301.6211-1(a), 26 CFR § 301.6211-l(a) (1983).

       See also Florsheim Bros. Co. v. United States, 280 U. S. 453, 462 (1930).

       It is axiomatic that statutes in derogation of the common law should be narrowly construed, as the Court pointed out earlier this Term. See Norfolk Redevelopment & Housing Authority v. Chesapeake & Potomac Tel. Co., ante, at 35-36.

         “In the case of failure to file a return, the tax may be assessed, or a proceeding in court for the collection of such tax may be begun without assessment, at any time.” 26 U. S. C. § 6501(c)(3).

      See S. Rep. No. 1622, 83d Cong., 2d Sess., 583-585 (1954); H. R. Rep. No. 1337, 83d Cong., 2d Sess., A413-A414 (1954).

       The Court attempts to justify its position by reference to § 6501(e) (1)(A), which provides a 6-year limitations period for a taxpayer who nonfraudulently omits more than 25% of his or her gross income, noting that the taxpayer cannot escape this extended period by filing an amended return. Ante, at 395-396. However, this Court has never so held; the majority justifies its position only by assuming its conclusion as to the correct construction of § 6501(e)(1)(A), an issue not before the Court. The Court cites only two old Tax Court decisions neither of which considers the arguments advanced by petitioners here. See Houston v. Commissioner, 38 T. C. 486 (1962); Goldring v. Commissioner, 20 T. C. 79 (1953). Moreover, it is incorrect that the taxpayer who files a fraudulent return is in a better position than the taxpayer who innocently understates his income by more than 25%, since the former is subject to criminal penalties under a 6-year statute of limitations. See 26 U. S. C. § 6531. He is also subject to a 50% penalty. See 26 U. S. C. § 6653(b). Thus, both taxpayers face the same limitations period, though the sanctions faced by the former are much more severe. Finally, the Commissioner is in no position to rely on a disparity of treatment between two separate parts of the statute, §§ 6501(c)(1) and 6501(e)(1)(A), since he is willing to tolerate disparate treatment between (c)(1) and (c)(3), which have the same statutory origin and purpose.

       Even Judge Wilbur's estimation of the sweep of the Commissioner’s position may be too modest, for under § 6901(c)(1) the Commissioner is entitled to assess deficiencies against a taxpayer’s beneficiaries after his or her death for one year after the limitations period runs. Since the limitations period will never run, the Commissioner may presumably hound a taxpayer’s beneficiaries and their descendants in perpetuity.

       The Court also argues that the Commissioner cannot be expected to comply with a limitations period since his civil investigation will be hampered if he has referred the fraud case to the Department of Justice for criminal prosecution. Ante, at 399. If that is the problem, however, then in an appropriate case the limitations period could be tolled during the pendency of the criminal investigation. Tolling during periods in which an action could not reasonably have been brought is much more in accord with usual limitations principles than the result the Court reaches today. Additionally, the conflicting demands of dual civil and criminal investigations are evidently no obstacle to the Commissioner in the fraudulent-failure-to-file context, since the Commissioner there is able to live with a 3-year limitations period. In any event, the need to conduct criminal investigations, which in all events must end or result in an indictment within six years, does not justify the power to assess deficiencies in perpetuity, and even in cases, such as No. 82-1509, where no reference to the Department of Justice is ever made.


author: Justice Rehnquist

text:
    DONOVAN, SECRETARY OF LABOR, et al. v. LONE STEER, INC.
    No. 82-1684.
    Argued November 29, 1983
    Decided January 17, 1984

      Alan I. Horowitz argued the cause for appellants. With him on the briefs were Solicitor General Lee, Deputy Solicitor General Geller, Karen I. Ward, and Charles I. Hadden.

      Richard G. Peterson argued the cause for appellee. With him on the brief was James Patrick Barone.

      Briefs of amid curiae urging affirmance were filed for the National Restaurant Association by Robert W. Hartland; and for the Washington Legal Foundation by Daniel J. Popeo, Paul D. Kamenar, and Nicholas E. Calió.

        Robert E. Williams, Douglas S. McDowell, and Stephen C. Yohay filed a brief for the Equal Employment Advisory Council as amicus curiae.

   Justice Rehnquist

delivered the opinion of the Court.

Section 11(a) of the Fair Labor Standards Act of 1938 (FLSAor Act), 52Stat. 1066, 29 U. S. C. § 211(a), authorizes the Secretary of Labor to investigate and gather data regarding wages, hours, and other conditions of employment to determine whether an employer is violating the Act. Section 9 of the FLSA, 29 U. S. C. § 209, empowers the Secretary of Labor to subpoena witnesses and documentary evidence relating to any matter under investigation. Pursuant to those provisions, an official of the Department of Labor served an administrative subpoena duces tecum on an employee of appellee Lone Steer, Inc., a motel and restaurant located in Steele, N. D. The subpoena directed an officer or agent of appellee with personal knowledge of appellee’s records to appear at the Wage and Hour Division of the United States Department of Labor in Bismarck, N. D., and to produce certain payroll and sales records. In an action filed by appellee to challenge the validity of the subpoena, the District Court for the District of North Dakota held that, although the Secretary of Labor had complied with the applicable provisions of the PLSA in issuing the subpoena, enforcement of the subpoena would violate the Fourth Amendment of the United States Constitution because the Secretary had not previously obtained a judicial warrant. We noted probable jurisdiction of the Secretary’s appeal, 462 U. S. 1105 (1983), and we now reverse the judgment of the District Court.

On January 6, 1982, A1 Godes, a Compliance Officer with the Wage and Hour Division of the Department of Labor, telephoned Susanne White, appellee’s manager, to inform her that he intended to begin an investigation of appellee the following morning and to request that she have available for inspection payroll records for all employees for the past two years. White telephoned Godes later that day to inform him that it would not be convenient to conduct the inspection on the following morning. After some preliminary skirmishing between the parties, during which appellee inquired about the scope and reason for the proposed investigation and appellants declined to provide specific information, Godes and Gerald Hill, Assistant Area Director from the Wage and Hour Division in Denver, arrived at appellee’s premises on February 2, 1982, for the purpose of conducting the investigation. After waiting for White, Godes served the administrative subpoena at issue here on one of appellee’s other employees. The subpoena was directed to any employee of appellee having custody and personal knowledge of the records specifically described therein, records which appellee was required by law to maintain. See 29 CFR §§ 516.2(a), 516.5(c) (1983). The subpoena directed the employee to appear with those records at the Wage and Hour Division of the Department of Labor in Bismarck, N. D.

Appellee refused to comply with the subpoena and sought declaratory and injunctive relief in the District Court, claiming that the subpoena constituted an unlawful search and seizure in violation of the Fourth Amendment. Appellants counterclaimed for enforcement of the subpoena. The District Court concluded that the actions of appellants in issuing the administrative subpoena “unquestionably comport with the provisions of the Fair Labor Standards Act, as amended, 29 U. S. C. §201, et seq.” App. A to Juris. Statement 6a. Relying on our decision in Marshall v. Barlow’s, Inc., 436 U. S. 307 (1978), however, the District Court held that the applicable provisions of the FLSA violate the Fourth Amendment insofar as they authorize the Secretary of Labor to issue an administrative subpoena without previously having obtained a judicial warrant. In Barlow’s this Court declared unconstitutional the provisions of the Occupational Safety and Health Act of 1970 (OSHA) which authorized inspectors to enter an employer’s premises without a warrant to conduct inspections of work areas. The District Court rejected appellants’ arguments that Barlow’s is not dispositive of the issue here by stating:

“It is reasonable to conclude that the exigencies of an entry upon commercial premises for the purpose of conducting a safety and health inspection designed to protect the personal well-being of employees supply more compelling bases for proceeding without a warrant than the circumstances presented here, where entry is sought for the purpose of determining compliance with wage and hour regulations. The reasoning of the Supreme Court in Barlow’s applies with equal — if not greater— force in the instant situation.
“In sum, I hold that the Secretary of Labor may not proceed to enter upon the premises of Lone Steer, Inc., for the purpose of inspecting its records under Section 11 of the Fair Labor Standards Act without first having obtained a valid warrant.” App. A to Juris. Statement 8a.

We think that the District Court undertook to decide a case not before it when it held that appellants may not “enter upon the premises” of appellee to inspect its records without first having obtained a warrant. The only “entry” upon appel-lee’s premises by appellants, so far as the record discloses, is that of Godes on February 2, 1982, when he and Gerald Hill entered the motel and restaurant to attempt to conduct an investigation. The stipulation of facts entered into by the parties, App. 11-17, and incorporated into the opinion of the District Court, App. A to Juris. Statement 2a-8a, describe what happened next:

“They asked for Ms. White and were told she was not available but expected shortly. They were offered some coffee, and waited in the lobby area. After 20-30 minutes, when Ms. White had not appeared, Mr. Godes served an Administrative Subpoena Duces Tecum on employee Karen Arnold.” App. 15.

An entry into the public lobby of a motel and restaurant for the purpose of serving an administrative subpoena is scarcely the sort of governmental act which is forbidden by the Fourth Amendment. The administrative subpoena itself did not authorize either entry or inspection of appellee’s premises; it merely directed appellee to produce relevant wage and hour records at appellants’ regional office some 25 miles away.

The governmental actions which required antecedent administrative warrants in Marshall v. Barlow’s, Inc., supra, and Camara v. Municipal Court, 387 U. S. 523 (1967), are quite different from the governmental action in this case. In Barlow’s an OSHA inspector sought to conduct a search of nonpublic working areas of an electrical and plumbing installation business. In Camara a San Francisco housing inspector sought to inspect the premises of an apartment building in that city. See also See v. City of Seattle, 387 U. S. 541 (1967) (involving a similar search by a fire inspector of commercial premises). In each case, this Court held that an administrative warrant was required before such a search could be conducted without the consent of the owner of the premises.

It is plain to us that those cases turned upon the effort of the government inspectors to make nonconsensual entries into areas not open to the public. As we have indicated, no such entry was made by appellants in this case. Thus the enforceability of the administrative subpoena duces tecum at issue here is governed, not by our decision in Barlow’s as the District Court concluded, but rather by our decision in Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186 (1946). In Oklahoma Press the Court rejected an employer’s claim that the subpoena power conferred upon the Secretary of Labor by the FLSA violates the Fourth Amendment.

“The short answer to the Fourth Amendment objections is that the records in these cases present no question of actual search and seizure, but raise only the question whether orders of court for the production of specified records have been validly made; and no sufficient showing appears to justify setting them aside. No officer or other person has sought to enter petitioners’ premises against their will, to search them, or to seize or examine their books, records or papers without their assent, otherwise than pursuant to orders of court authorized by law and made after adequate opportunity to present objections . . . Id., at 195 (footnotes omitted).

We cited Oklahoma Press with approval in See v. City of Seattle, supra, a companion case to Camara, and described the constitutional requirements for administrative subpoenas as follows:

“It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.” See v. City of Seattle, supra, at 544 (footnote omitted).

See also United States v. Morton Salt Co., 338 U. S. 632, 652-653 (1950).

Thus although our cases make it clear that the Secretary of Labor may issue an administrative subpoena without a warrant, they nonetheless provide protection for a subpoenaed employer by allowing him to question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court. See v. City of Seattle, supra, at 544-545; Oklahoma Press, supra, at 208-209. Our holding here, which simply reaffirms our holding in Oklahoma Press, in no way leaves an employer defenseless against an unreasonably burdensome administrative subpoena requiring the production of documents. We hold only that the defenses available to an employer do not include the right to insist upon a judicial warrant as a condition precedent to a valid administrative subpoena.

Appellee insists that “[t]he official inspection procedure used by the appellants reveal[s] that the use of the administrative subpoena is inextricably intertwined with the entry process,” Brief for Appellee 11, and states that it is appellants’ established policy to seek entry inspections by expressly relying on its inspection authority under §11 of the FLSA. Id., at 12. We need only observe that no non-consensual entry into protected premises was involved in this case.

The judgment of the District Court is accordingly

Reversed.

       Section 11(a), as set forth in 29 U. S. C. § 211(a), provides:
      “The Administrator or his designated representatives may investigate and gather data regarding the wages, hours, and other conditions and practices of employment in any industry subject to this chapter, and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this chapter, or which may aid in the enforcement of the provisions of this chapter. Except as provided in section 212 of this title and in subsection (b) of this section, the Administrator shall utilize the bureaus and divisions of the Department of Labor for all the investigations and inspections necessary under this section. Except as provided in section 212 of this title, the Administrator shall bring all actions under section 217 of this title to restrain violations of this chapter.”
      Although § 11(a) grants investigatory authority specifically to the Wage and Hour Administrator, pursuant to Reorg. Plan No. 6 of 1950, 3 CFR 1004 (1949-1953 comp.), 64 Stat. 1263, 5 U. S. C. App. p. 743, the functions of all officers of the Department of Labor, including the Wage and Hour Administrator, are transferred to the Secretary of Labor, who may in turn delegate those functions.

       Section 9 of the FLSA provides that for the purpose of any hearing or investigation under the provisions of the Act, § 9 of the Federal Trade Commission Act of 1914, 38 Stat. 722, as amended, 15 U. S. C. § 49, is made applicable “to the jurisdiction, powers, and duties of the Administrator, the Secretary of Labor and the industry committees.” Section 9 of the Federal Trade Commission Act of 1914, as set forth in 15 U. S. C. § 49, provides in pertinent part:
      “[T]he Commission, or its duly authorized agent or agents, shall at all reasonable times have access to, for the purpose of examination, and the right to copy any documentary evidence of any person, partnership, or corporation being investigated or proceeded against; and the Commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the Commission may sign subpoenas, and members and examiners of the Commission may administer oaths and affirmations, examine witnesses, and receive evidence.
      “Such attendance of witnesses, and the production of such documentary evidence, may be required from any place in the United States, at any designated place of hearing. And in case of disobedience to a subpoena the Commission may invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence.
      “Any of the district courts of the United States within the jurisdiction of which such inquiry is carried on may, in ease of contumacy or refusal to obey a subpoena issued to any person, partnership, or corporation issue an order requiring such person, partnership, or corporation to appear before the Commission, or to produce documentary evidence if so ordered, or to give evidence touching the matter in question; and any failure to obey such order of the court may be punished by such court as a contempt thereof.”

       Because the District Court’s order seemed only to bar “entry” onto ap-pellee’s premises, appellants filed a motion to alter or amend the judgment, arguing that the District Court’s order did “not address the relief sought by the Secretary.” App. A to Juris. Statement 15a. They sought to amend the District Court’s order so as to compel appellee to produce documents at appellants’ Bismarck office, emphasizing that compliance with such an order would not require an “entry” onto appellee’s premises. The District Court denied the motion without opinion. Id., at 13a-14a.