## Facts

- Sidney Backer, a certified public accountant, assisted in preparing tax returns for Walter D. Williams, Jr. and participated in multiple interviews with IRS agents during an investigation of Williams’s tax liabilities.
- Backer had previously cooperated by answering questions and producing requested documents, both with and without the taxpayer’s attorney present.
- The IRS later subpoenaed Backer to appear and testify under oath before an IRS special agent at a specified time and place.
- Backer appeared with attorney Cubbedge Snow, who had also filed a power of attorney to represent Williams in the investigation.
- The special agent refused to allow Snow to be present during Backer’s examination because Snow also represented the taxpayer; on Snow’s advice, Backer declined to be examined without counsel present.
- The Commissioner petitioned the district court to enforce the summons while excluding Snow from the proceeding.
- The district court found Snow had been retained and paid by Backer independently, without suggestion from the taxpayer, and that neither Backer nor Snow had attempted to impede the investigation.
- Despite those findings, the district court ordered Backer to appear and testify without representation by Snow.

## Issues

1. Whether the Administrative Procedure Act grants a subpoenaed witness the right to be accompanied, represented, and advised by counsel during a compelled IRS examination.
2. Whether the IRS (and a district court enforcing an IRS summons) may exclude the witness’s chosen attorney solely because the attorney also represents the taxpayer under investigation, absent a showing of obstruction or improper conduct.

## Decision

- The Fifth Circuit reversed the district court’s enforcement order.
- The court held that Backer, as a person compelled to appear before an agency representative, was entitled under the APA to be accompanied, represented, and advised by counsel.
- The IRS could not require Backer to testify without his chosen counsel merely because that counsel also represented the taxpayer, where there was no showing of obstruction, improper tactics, or other disqualifying conduct.

## Legal Principles

- The APA provides that any person compelled to appear before a federal agency or its representative must be accorded the right to be accompanied, represented, and advised by counsel.
- An agency’s internal practice cannot curtail a statutory right to counsel conferred by Congress.
- Absent evidence that counsel is obstructing the inquiry or engaging in improper conduct, the government may not categorically bar a compelled witness’s chosen attorney based solely on the attorney’s representation of another interested person.
- Concerns about potential interference by counsel may be addressed through judicial supervision and available remedies if misconduct occurs, rather than preemptive exclusion.

## Conclusion

A subpoenaed witness in an IRS investigation has a statutory right under the APA to appear with counsel of the witness’s choosing, and the IRS may not exclude that counsel solely due to dual representation of the taxpayer when the record shows no obstruction or improper conduct.


Backer v. Comm’r, 275 F.2d 141 (5th Cir. 1960)