UNITED STATES of America, Petitioner, Appellant,

                                       v.

     CHURCH OF SCIENTOLOGY OF BOSTON, INC., et al., Respondents, Appellees.

                                  No. 90-1900.

                         United States Court of Appeals,

                                 First Circuit.

                               Heard Feb. 5, 1991.

                              Decided May 29, 1991.

                         Rehearing Denied Aug. 9, 1991.

  Internal Revenue Service (IRS) petitioned for enforcement of summons issued

 to church as part of inquiry into church's tax-exempt status.  The

 United States District Court for the District of Massachusetts, Joseph L.

 Tauro, J., 739 F.Supp. 46, denied petition.  IRS appealed.  The Court of

 Appeals, Breyer, Chief Judge, held that IRS failed to show that church records

 were necessary to determine church's tax liability.

  Affirmed.



 INTERNAL REVENUE

 Under provision of Internal Revenue Code pertaining to church tax inquiries,

 Internal Revenue Service's (IRS) summons which called for production of massive

 amounts of church's material did not show that records were "necessary" to

 determine church's tax liability, and thus, could not be enforced;  summons

 could not satisfy any higher standard than simple "relevance."  26

 U.S.C.A. s 7611(b)(1).

  *1075 John A. Dudeck, Jr. with whom Shirley D. Peterson, Asst. Atty. Gen.,

 Gary R. Allen, Charles E. Brookhart, Attys., Tax Div., Dept. of Justice, and

 Wayne A. Budd, U.S. Atty., were on brief for petitioner-appellant.

  Michael Lee Hertzberg, with whom Eric M. Lieberman, Hillary Richard,

 Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C., New York City, Earle

 C. Cooley, and Cooley, Manion, Moore & Jones, P.C., were on brief for

 respondents-appellees.



  Before BREYER, Chief Judge, and CAMPBELL and TORRUELLA, Circuit Judges.



  BREYER, Chief Judge.

  The Internal Revenue Service, investigating the 1985, 1986, and 1987 tax

 liability of the Church of Scientology of Boston, has asked the district court

 to enforce a summons for church records.  The district court refused to enforce

 the summons because, in its view, 1) the church records were not "necessary to

 determine the [church's tax] liability," 26 U.S.C. s 7611(b)(1)(A), and

 2) the IRS had not issued the summons for a proper purpose.  739 F.Supp.

 46.  The IRS now appeals the district court's refusal to enforce the summons.

 After reviewing the record, we agree with the district court that the IRS has

 not shown that the church records requested are "necessary" to its

 investigation.  And, we affirm the district court's refusal to enforce the

 summons for that reason.

                                        I

                                 The Basic Issue

  A special provision of the Internal Revenue Code ("Code"), entitled

 "Restrictions on Church Tax Inquiries and Examinations," provides the governing

 legal standard.  It says that the IRS may examine "church records" only "to the

 extent necessary to determine" the church's tax "liability."  26 U.S.C. s

 7611(b)(1).  The basic issue in this case concerns the words "to the extent

 necessary to determine."  Do those words impose a rather high preliminary legal

 hurdle, as the word "necessary" seems to suggest?  Or, as the IRS argues, does

 careful analysis show the standard they impose is really no greater than one

 of "relevance?"

  The answer to this question determines the outcome of this appeal.  That is

 because the record makes clear that the IRS summons before us cannot satisfy

 any standard higher than simple "relevance."  The summons, set forth in the

 Appendix, is detailed and calls for the production of a massive amount of

 material, but it does not explain how or why compliance is "necessary" to

 determine the church's possible tax liability.  An affidavit of an IRS agent

 accompanies the summons.  However, the affidavit merely states a conclusion,

 namely that compliance is "necessary to determine" the church's tax liability;

 it does not explain in any detail how or why the documents for which it calls

 are "necessary" either.  The prior history of IRS/Scientology dealings,

 contained in the record, consists of lists of questions that the IRS asked and

 that the Church answered (in detail).  Nothing in that history explains to

 *1076 us how or why the particular documents that the summons lists are

 "necessary" to the investigation.  The church has challenged the IRS's claim

 that the documents are "necessary" and the IRS primarily argues that it has

 shown the summons to be "necessary" because "necessary" means "relevant."

 Thus, we shall assume that the summons itself, read in light of the record,

 demonstrates that the documents it seeks may be relevant to the IRS tax

 inquiry, but we hold, giving particular attention to the district court's

 identical conclusion, see United States v. Coates, 692 F.2d 629, 634 (9th

 Cir.1982), that the summons fails to meet any more exacting standard.  And, we

 shall turn to the question of whether a showing of simple relevance satisfies

 the statutory test.

  To understand the specific legal question, the reader must understand

 the basic legal tests applicable to the typical IRS summons, a summons that is

 not aimed at church documents.  In a case called United States v. Powell,

 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964) the Supreme Court held that

 the IRS is entitled to court enforcement of a summons for documents as long as

 it shows:  (1) that "the investigation will be conducted pursuant to a

 legitimate purpose," (2) "that the inquiry may be relevant to the purpose,"

 (3) "that the information sought is not already within the Commissioner's

 possession," and (4) "that the administrative steps required by the Code have

 been followed."  Id. at 57-58, 85 S.Ct. at 255 (emphasis added).  As the IRS

 points out, this test, and, in particular, the "relevancy" requirement (which

 we have underlined) is not very difficult to satisfy.  Indeed, the Ninth

 Circuit has said that to do so, the government need show only that the summoned

 documents "might throw light upon the correctness of the taxpayer's returns."

 United States v. Ryan, 455 F.2d 728, 733 (9th Cir.1971) (emphasis added).

  The special "Church Tax Inquiries and Examination" provision of the Code,

 however, governs the summons before us.  That provision offers churches special

 protections.  It says that, even to begin an investigation of a church's tax

 liability,

   [A]n appropriate high-level Treasury official [must] reasonably believe

 [ ] (on the basis of facts and circumstances recorded in writing) that the

 church--

   (A) may not be exempt, by reason of its status as a church, from tax under

 section 501(a), or

   (B) may be carrying on an unrelated trade or business ... or [is] otherwise

 engaged in activities subject to taxation under this title.

  26 U.S.C. s 7611(a)(2).  The same section adds that the IRS may

   begin a church tax examination only if [the reasonable belief requirements

 just mentioned are satisfied] and such examination may be made only--

   (A) in the case of church records, to the extent necessary to determine the

 liability for, and the amount of, any tax imposed by this title and

   (B) in the case of religious activities, to the extent necessary to determine

 whether an organization claiming to be a church is a church for any period.

  26 U.S.C. s 7611(b)(1) (emphasis added).

  The critical legal question that the IRS raises concerns the meaning of the

 underlined language--"to the extent necessary"--in relation to the "may be

 relevant" test of Powell.  In particular, the IRS argues "that no showing

 beyond that required under Powell is needed in church summons cases."  If the

 IRS is right in its view of the meaning of this phrase, it is entitled to

 enforcement of the summons;  otherwise (given the record before us), it is not.

                                       II

                    The Meaning of "to the Extent Necessary"

  In trying to show that the word "necessary" in context means no more than "may

 be relevant," the IRS faces several formidable obstacles.  The words of the

 statute itself, "to the extent necessary to determine liability," do not seem

 on their face to mean that the IRS can obtain church documents by showing only

 a possible relevance *1077 to an inquiry or that they "might throw light

 upon" the correctness of a church's return.  Moreover, a 1969 predecessor

 statute used these same words, stating

   no examination of the books of account of [a church] ... shall be made

 other than to the extent necessary to determine the amount of tax imposed by

 this title.

  26 U.S.C. s 7605(c), repealed by Section 1033 of the Tax Reform Act of

 1984, Pub.L. No. 98-369, 98 Stat. 494, codified at 26 U.S.C. s 7611.  And,

 the federal courts uniformly interpreted these words to mean what they said.

 See United States v. Church of World Peace, 775 F.2d 265, 267 (10th

 Cir.1985) ("IRS examination of church records may only be made to the 'extent

 necessary' ");  United States v. Coates, 692 F.2d 629, 634 (9th

 Cir.1982) (affirming district court application of the "necessity" standard);

 United States v. Dykema, 666 F.2d 1096, 1102 (7th Cir.1981), cert. denied,

 456 U.S. 983, 102 S.Ct. 2257, 72 L.Ed.2d 861 (1982) ("the examination of

 books of account must be limited to that which is necessary to determine the

 amount of the tax imposed");  United States v. Life Science Church of

 America, 636 F.2d 221, 224 (8th Cir.1980) (same);  United States v. Holmes,

 614 F.2d 985, 988 (5th Cir.1980) ("The second prong of the Powell test was

 pruned back by Congress in 1969, ... when it added [s 7605(c) ] ...").

 Further, when Congress, in 1984, reenacted this same 1969 language, the bill's

 sponsors said that they expected the courts to continue to interpret these

 words as they had done in the past.  See 130 Cong.Rec.S. 4486 (daily ed. April

 12, 1984) ("[T]o be certain churches are protected from unfounded examinations

 [the Bill] limits the inspection of church records to those necessary to

 determine the tax liability of a church ... As under present law, the IRS may

 examine the religious activities of an organization claiming to be a church ...

 only to the extent necessary to determine if the organization actually is a

 church.").

  Faced with these obstacles, and perhaps recognizing the counter intuitive

 nature of its claim, the IRS makes four arguments.  First, it asks us to read

 the statutory provision with the emphasis on the words "tax imposed by this

 title."  Thus, according to the IRS we should say that the statute limits an

 examination of church books "to the extent necessary to determine the liability

 for, and the amount of, any tax imposed by this title."  The statute, so read,

 would use the word "necessary" in order to forbid the IRS to look at church

 books for purposes of determining liability for some other tax, or for purposes

 of determining whether the church was breaking some totally different law, or

 perhaps just for fun.  But, assuming the IRS restricted its examination to the

 right purpose, then, says the IRS, it can look at whatever books, or documents,

 or records are "relevant," or would "cast some light upon," potential

 liability.  That is to say, any examination relevant to determining the right

 sort of liability is a "necessary" examination.

  The problem with this ingenious argument is that the rest of the statute

 belies it.  The first provision of the "Church Tax Inquiry" provision, which we

 quoted at the outset of this opinion, says that the IRS cannot even begin its

 investigation until it "reasonably believes" the church has the relevant

 liability.  The "tax examination" section says that, to examine books, the IRS

 must meet these "reasonable belief" requirements and it must also meet the

 "extent necessary" requirements.  The IRS's interpretation would basically make

 the "and" (and the entire "extent necessary" section) redundant.  Regardless,

 we find its interpretation strained, contrary to the view set forth in the

 cases we have cited above, and in conflict with the statements in the

 legislative history just quoted.

  Second, the IRS says that two cases support its position, including one

 from this circuit, United States v. Dykema, 666 F.2d 1096 (7th Cir.1981)

 and United States v. Freedom Church, 613 F.2d 316 (1st Cir.1979).  We do not

 agree, however, with the IRS's reading of these two cases.  Both of them

 involved different issues.  The 1969 statute imposed special restrictions upon

 tax investigations of a church, but it did not make clear which kinds of tax

 investigations *1078 it meant to limit.  In particular, there was a dispute

 as to whether the restrictions applied 1) only when the IRS investigated to see

 if a church had unrelated business income, see 26 U.S.C. s 513, or 2)

 also when the IRS investigated whether a claimed church was really a church.

 See 26 U.S.C. s 501(c)(3);  26 C.F.R. s 1-511-2(a)(3)(ii).  The Dykema

 court, like several other courts, held that the statute applied its

 investigatory restrictions only when the IRS investigated to see if the church

 had unrelated business income, and not otherwise.  But, in respect to

 investigations within the statute's scope, the word "necessary" means what it

 says.  Indeed, on the relevant issue, Dykema seems to hold against the IRS,

 for the court said that

   "the examination of corporate books of account [for the purpose of

 determining unrelated business income] must be limited to that which is

 necessary to determine the amount of the tax."

  Dykema, 666 F.2d at 1102 (emphasis added).

  In Freedom Church the issue raised was whether the 1969 statute prohibited

 all examinations of "books of account" to determine whether an organization is

 in fact a church.  In the course of the opinion this court wrote that the

 Powell "may be relevant" standard applied to a church-related investigation,

 but the parties did not dispute that matter;  the meaning of the words "to the

 extent necessary" was not at issue in the case.  Freedom Church, 613 F.2d at

 319 (appellant only objected that "membership and contribution lists ... are

 not relevant to an investigation of tax exempt status").  Thus, we do not

 consider this court's affirmance of the application of the relevance standard

 controlling on the meaning of "necessity" as used in s 7611.

  Third, the IRS makes a logical argument that rests upon Powell itself.  It

 notes that a different statute, relevant to all tax investigations, says that

 "no taxpayer shall be subjected to unnecessary examination."  26 U.S.C. s

 7605(b) (emphasis added).  It adds that Powell, in saying that the IRS could

 examine whatever material was "relevant," must have meant that an examination

 of "relevant" material was not an "unnecessary" examination.  Therefore,

 Powell must have meant that an examination of relevant material was a

 "necessary" examination.  Consequently, "to the extent necessary" means "to the

 extent relevant."

  This argument sounds logical, but it is not.  In ordinary English there is a

 "middle" set of circumstances that "necessary" and "unnecessary" do not

 completely distribute between them.  For example, it is necessary that my car

 have gas if I am going to drive it;  it is unnecessary that it have a new paint

 job;  but, it is neither "necessary" nor "unnecessary" that I clean the

 windshields--to do so would simply be a wise precaution.  Similarly, an

 investigation of whatever documents "might throw light" on the matter is not

 an "unnecessary" investigation, but neither can one conclude that it is

 "necessary."  It might, for example, simply be somewhat helpful.

  Fourth, and perhaps most important, the IRS says that the words "to the

 extent necessary," if read naturally, would hamper tax investigations

 significantly.  How can the IRS possibly know whether the examination of a

 certain set of books, for example, is "necessary" to show liability unless and

 until it can see the books?  It is absurd to expect the IRS to be able to prove

 liability before it starts an investigation.  Thus, Congress cannot have meant

 courts to read this language literally.  As the IRS puts it, imposing this

 higher standard on the IRS "would place an impossible burden on the IRS with

 respect to any organization that claims to be a church.  Such a construction of

 the statute, which would nullify the summons authority of the IRS, is to be

 avoided."

  The answer to this argument, however, is that the words do not say "to the

 extent necessary to show liability."  They say "to the extent necessary to

 determine liability," i.e., to decide whether or not there is liability.  The

 IRS must show that the material is "necessary" to the investigation, not

 necessary to prove liability.  The statute focuses the court's attention on the

 needs of a competent investigator, not the *1079 needs of a prosecutor.  It

 requires the IRS to explain why the particular documents it seeks will

 significantly help to further the purpose of the investigation.  As so read, we

 do not believe that the standard, while stricter than "may be relevant," will

 impose upon the IRS unreasonably strict standards of proof when it seeks

 material that it needs for investigatory purposes.

  In sum, we reject the IRS's argument that the Powell relevance standard

 applies to an examination of church documents.  And, we hold that the present

 summons does not meet the stricter necessary-to-the-investigation standard.

                                       III

                                     Purpose

  The district court also held that the IRS failed to show it was proceeding for

 a proper purpose, namely to determine whether or not the church had tax-exempt

 status in the tax years in question.  Since we have already held that the

 court's decision not to enforce the subpoena was legally proper, we need not

 decide whether or not the district court's decision about lack of purpose was

 legally correct.  The IRS has argued forcefully, however, that the district

 court is wrong;  and, it may fear that the district court's "purpose"

 determination would bind it in another case, say, a renewed effort to enforce a

 revised summons against the church.  Because particular record-based

 circumstances may determine the outcome of this issue, because a new proceeding

 would likely involve different circumstances, and because we need not decide

 the question now, we shall not do so.  But we shall state that the district

 court's holding on this point, not necessary to its (or our) decision, does not

 have any binding effect and that the court may reconsider the legitimacy of the

 IRS's purpose in any future proceeding.

  The judgment of the district court is

  Affirmed.

                                 *1080 APPENDIX





 



                                     *1081



 



  *1082 It will be necessary to provide all documents in your

 possession, custody or control relative to the Church of Scientology of Boston,

 Inc., during the period beginning January 1, 1985, and ending December 31,

 1987, (unless otherwise stated) as more specifically described below.  If all

 or part of the summoned accounting and/or financial records are maintained

 within an automated data processing system, then provide copies of the disks,

 magnetic tapes, or other machine-sensible records on which the data is stored,

 as well as documentation that provides a complete description of the automated

 data processing portion of the accounting system and those files that feed into

 the accounting system;  documentation as to the scope of the operations

 sufficient to indicate:  a) the application being performed, b) the procedures

 used in each application, and c) the controls used to ensure accurate and

 reliable processing;  and, for all files, documentation regarding:  1) record

 formats (including the meaning of all "codes" used to represent and retrieve

 information);  2) flowcharts (systems and program);  3) label descriptions;  4)

 source program listings of programs that created the files;  and 5) charts of

 accounts for the periods involved.  If the information is not maintained within

 an automated data processing system, then provide the paper records and

 documents.  Documents which were furnished by the Church of Scientology of

 Boston, Inc. in support of Form 1023, Application for Recognition of Exemption,

 need not be provided in compliance with this summons.  However, any document

 which has been revised or amended since the Church of Scientology of Boston,

 Inc. was granted exempt status in 1975, is to be produced in compliance with

 this summons.

  In the following description of the information sought by this summons, "CSBI"

 means Church of Scientology of Boston, Inc.  In addition, each request for

 documents and records that follows includes, but is not limited to, all

 pertinent Scientology Scriptures, directives and orders.

  1. All documents including, but not limited to, charters, articles of

 incorporation, agreements, by-laws and organizational charts, which describe

 the purpose and organizational structure of the CSBI.

  2. All documents including, but not limited to, by-laws, position

 descriptions, annual reports and brochures, which describe the responsibilities

 and duties of the officers, directors and trustees of the CSBI.

  3. All documents which identify those persons who served as an officer,

 director or trustee of the CSBI, including their names, addresses and social

 security numbers.

  4. All documents relating to the compensation, remuneration, and financial

 benefits received by officers, directors and trustees of the CSBI.

  5. All documents which describe those activities engaged in by the CSBI,

 including but not limited to statements as to whether the CSBI operates

 autonomously or under the supervision or control of any other entity.

  6. All documents which identify and describe the activities of organizations

 other than the CSBI, which use any property owned, leased or otherwise

 possessed by the CSBI, including the property at 448 Beacon Street.

  7. Original copies of any and all brochures, flyers, pamphlets and

 advertisements printed and distributed to members of the CSBI and/or the

 general public.

  8a. All documents which list or otherwise identify all of the various

 publications, devices or equipment which were provided free of charge to CSBI

 members or the public through the CSBI.

  8b. All documents relating to the various publications, devices or equipment

 sold through CSBI including, but not limited to, contracts, agreements,

 invoices, minutes of meetings, which list or otherwise show:  1) purchase

 prices, 2) sales prices, 3) quantities purchased and sold, 4) methods of sale

 and distribution, such as through book stores or mail order, and 5) methods for

 establishing purchase prices and sales prices.

  9. The original minutes of all meetings held by the governing body of the

 CSBI, *1083 and/or by other similar bodies or boards having authority for

 the Boston Church's ecclesiastical, financial, and/or corporate affairs for the

 calendar years ended December 31, 1983;  December 31, 1984;  December 31,

 1985;  December 31, 1986;  and December 31, 1987.

  10. All original books of account and records of the CSBI which report assets,

 liabilities, receipts and disbursements including, but not limited to, the

 following:

   A. General ledger

   B. General journal

   C. Accounts receivable ledgers

   D. Accounts payable ledgers

   E. Cash disbursement book

   F. All subsidiary ledgers

   G. Cash receipts book

   H. Supporting vouchers and invoices

   I. Check register and cancelled checks

   J. Purchases journal

   K. Sales journal

   L. Bank statements--savings and checking (domestic and foreign), single,

 joint or nominee

   M. Investment accounts (domestic and foreign), single, joint or nominee

   N. Certificates of deposits, single, joint or nominee

   O. Financial reports prepared by or under the supervision of any Financial

 Banking Officer including, but not limited to, the Flag Banking Officer.

  11. All original financial reports--weekly, monthly, quarterly and annually--

 internal audit reports, and management letters.

  12. Copies of Forms 941E, Employment Tax Returns;  copies of Forms W-4,

 Employees Exemption Allowance Certificate;  Forms W-3 and W-2, Annual Wage and

 Tax Statements;  and Forms 1096 and 1099, Information Reports, (Service

 completion awards, commissions, etc.).

  13. Original agreements, contracts, and leases relating to any service or any

 tangible or intangible property including, but not limited to trademarks,

 copyrights, space (either as a lessee or lessor), employment, and equipment

 that the CSBI, owned or used, during 1985, 1986, and 1987.  This would include

 licensing agreements, including Film Trust agreements, ecclesiastical

 management agreements, ecclesiastical management services agreements, including

 agreements with Church of Scientology International;  ecclesiastical trust

 agreements;  agreements or copyrights;  patents;  trademarks;  trade names;

 service marks;  religious marks;  equipment;  advices, directives, orders,

 policy letters and documents used by the church.

  14. All documents which describe the schedule of charges for various

 levels of auditing and training and all records which reflect the names,

 addresses, social security numbers and the amounts paid by each individual who

 participated in the auditing and training sessions.

  15. Copies of all Scientology Scriptures which set forth financial management

 and recordkeeping procedures.

  16. All documents executed by parishioners whereby they agreed to perform

 services for or on behalf of the CSBI.

  17. Records which show the commissions paid by or on behalf of the CSBI,

 including amounts paid to or on behalf of individuals, directly or indirectly,

 as well as documents which explain how and by whom amounts were determined and

 whether such amounts were reported on Forms 1099 and/or W-2.

  18. Records which show the Church's financial relationship to all other

 entities in the Scientology hierarchy and to other Scientology churches and

 organizations.

  19. Any agreements signed by parishioners of the CSBI, whereby they agreed not

 to assert legal claims against the Church and/or other individuals or entities

 in the Scientology hierarchy.

  20. All documents relating to the furnishing of training/auditing/consulting

 services by other Scientology-related organizations to individuals connected

 with or referred by CSBI.

  21. All documents relating to the furnishing of training/auditing/consulting

 services by CSBI to individuals connected with *1084 or referred by other

 Scientology-related organizations.

  22. All documents relating to payments made to or received from other

 Scientology-related organizations for management services, advice, guidance,

 penalties or fines.

  23. Copies of all documents including, but not limited to Scientology

 Scriptures which set forth procedures by which reserve accounts were maintained

 by the Church of Scientology of Boston, Inc.

  24. Copies of all documents including, but not limited to Scientology

 Scriptures which set forth how amounts of distributions from CSBI reserve

 accounts were determined.

  25. Copies of all documents including, but not limited to, Scientology

 Scriptures which set forth how amounts of contributions made to CSBI reserve

 accounts were determined.

  26. Copies of all documents including, but not limited to, Scientology

 Scriptures, correspondence, memorandums, books, records, journals and/or

 ledgers which describe the anticipated needs for which the CSBI maintained

 reserve accounts.

  27. Copies of all documents including, but not limited to, Scientology

 Scriptures, correspondence, memorandums, books, records, journals and/or

 ledgers which set forth how and by whom the anticipated needs for which the

 CSBI maintained reserve accounts were determined.

  28a. All Books of account, ledgers, journals and records which reflect amounts

 contributed to the Church of Scientology of Boston reserve accounts.

  28b. All records which identify the contributor and the amount, date and

 purpose of each contribution made to CSBI reserve accounts.

  29a. All Books of account, ledgers, journals and records which reflect

 amounts distributed by the CSBI reserve accounts.

  29b. All records which identify the distributee, and the amount, date and

 purpose of each distribution made from the CSBI reserve accounts.

  30. Statements of account, ledgers, journals, books and records necessary to

 determine the opening and closing balances in all CSBI reserve accounts during

 each month.

  31. Bank signature cards for all CSBI reserve accounts held in banks or

 financial institutions.