God's Storehouse Topeka Church v. USA

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 22-mc-00046-PAB
GOD’S STOREHOUSE TOPEKA CHURCH,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
ORDER
This matter comes before the Court on the Recommendation of United States
Magistrate Judge [Docket No. 32]. The magistrate judge recommends that the Court:
(1) grant respondent’s motion for summary denial, (2) deny petitioner’s motion to quash,
and (3) deny petitioner’s motion for discovery. Docket No. 32 at 30. Petitioner God’s
Storehouse Topeka Church (“GSH”) filed an objection to the recommendation on March
9, 2023. Docket No. 33. On March 23, 2023, respondent responded. Docket No. 34.
I. BACKGROUND
GSH is a not-for-profit corporation incorporated in the state of Kansas. Docket
No. 1 at 3, ¶ 5. GSH self-declares as a church for tax purposes. Docket No. 9-1 at 3,
¶ 8. Richard Kloos serves as GSH’s president and is a member of the Board of
Directors. Docket No. 12-1 at 2, ¶ 2. In 2020, Mr. Kloos ran a successful campaign for
the Kansas Senate. Docket No. 1 at 4, ¶ 11. During the campaign, Mr. Kloos
distributed and posted campaign signs that stated: “Rick Kloos Kansas Senate” and
“Founder of God’s Storehouse.” Id.
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On February 24, 2021, the Internal Revenue Service (“IRS”) assigned Agent
Kesroy Henry to determine whether GSH may owe unrelated business income tax or
additional employment taxes. Docket No. 9-1 at 2, ¶ 4; Docket No. 9 at 1. Agent Henry
noted that GSH operates a thrift store and coffee shop. Docket No. 9-1 at 3, ¶ 8. He
failed to discover any information on GSH’s website about church services. Id., ¶ 9.
After reviewing GSH’s records, Agent Henry determined that GSH did not pay the IRS
any employment taxes on the gross wages for Mr. Kloos in 2019 or 2020. Id. at 3–4,
¶ 11.
Agent Henry received approval to open a church tax inquiry from the
Commissioner of the Tax Exempt and Government Entities Division of the IRS. Id. at 4,
¶¶ 13–14. The IRS issued a Notice of Church Tax Inquiry (“NCTI”) to GSH, asking it to
respond to a number of questions. Id., ¶ 14. Agent Henry found GSH’s responses
lacking and received approval from the Commissioner to begin a church tax
examination. Id. at 5, ¶¶ 16, 17. As part of the church tax examination, the IRS
contacted third parties. Id. at 6, ¶¶ 22, 26. One such third party was FISERV, which
processed credit card payments for GSH, primarily regarding thrift-store transactions.
Id., ¶ 26. The IRS issued a summons to FISERV, directing a FISERV representative to
produce all documents in FISERV’s possession concerning GSH’s merchant account.
Id. at 7, ¶ 27.
On February 28, 2022, GSH filed the petition before the Court, seeking to quash
the FISERV Summons. Docket No. 1. The IRS filed the motion for summary denial of
petitioner’s request to quash on May 19, 2022. Docket No. 9. On January 6, 2023,
GSH filed a motion seeking limited discovery in this matter. Docket No. 27. On
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February 22, 2023, Magistrate Judge Scott Varholak recommended that the Court grant
the IRS’s motion and deny GSH’s motions. Docket No. 32 at 30. GSH objected.
Docket No. 33.
First, GSH argues that Judge Varholak was wrong in concluding that the third-
party summons issued to FISERV was not subject to 28 U.S.C. § 7611. Id. at 2. GSH
maintains that § 7611 provides various procedural requirements that “are a condition
precedent to the issuance of any valid third-party summons issued pursuant to a church
tax examination.” Id. Because GHS claims that the requirements of § 7611 were not
met by the IRS, GSH argues that the summons should be quashed. Id. at 2–8.
Next, GSH asserts that, even if § 7611 does not apply to third-party summons in
a church tax examination, Judge Varholak incorrectly concluded that the IRS made a
prima facie showing that the summons was issued in good faith under the factors laid
out in United States v. Powell, 379 U.S. 48, 57-58 (1964). Id. at 9. GSH primarily
argues that the IRS failed to show that the summons was issued for a legitimate
purpose because “the underlying reasons for the investigation are based on
speculation, factual inaccuracies, and a lack of evidence.” Id. at 10. Instead, GSH
suggests that the IRS’s investigation is the result of “political and partisan motives” at
the behest of Mr. Kloos’s political opponents and the Freedom From Religion
Foundation (“FFRF”). Id. at 12.
As part of its investigation into GSH, the IRS issued a summons to Kaw Valley
Bank. God’s Storehouse Topeka Church v. United States, 2024 WL 1515742, at *1
(10th Cir. Apr. 9, 2024). GSH filed a motion to quash the Kaw Valley Bank summons in
the United States District Court for the District of Kansas. Id. at *3. The court denied
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GSH’s motion and GSH appealed. Id. at *4. On appeal, GSH pursued the same
argument that the IRS’s third-party summons was required to comply with the
requirements of § 7611. Id. The Tenth Circuit rejected GSH’s argument, holding that
“[t]he relevant statutory language and applicable case law are harmonious: the
requirements in § 7611 for initiating church tax inquiries and examinations do not apply
to a third-party summons, even if summonses are issued in connection with such
inquiries and examinations. Instead, IRS must satisfy the requirements set out in
§ 7609, as incorporated into and analyzed by Powell, when it summonses materials
from a third party in this context.” Id. at *6.
II. LEGAL STANDARD
The IRS is “authorized and required to make the inquires, determinations, and
assessments of all taxes” imposed by law. 26 U.S.C. § 6201(a). This includes the
ability to “issue summonses ‘[f]or the purpose of ascertaining the correctness of any
return, making a return where none has been made, determining the liability of any
person for any internal revenue tax . . ., or collecting any such liability.’” United States
v. Clarke, 573 U.S. 248, 250 (2014) (quoting 26 U.S.C. § 7602(a)). “The IRS has
authority to issue summonses to the subject taxpayer and to third parties who may have
relevant information.” Standing Akimbo, LLC v. United States, 955 F.3d 1146, 1154
(10th Cir. 2020) (citing 26 U.S.C. § 7602(a)(2); High Desert Relief, Inc. v. United States,
917 F.3d 1170, 1181 (10th Cir. 2019)). In issuing a third-party summons under
§ 7602(a)(2), the IRS must follow specific notice procedures. See 26 U.S.C.
§ 7609(c)(1) (“[Subject to exceptions not applicable here], this section shall apply to any
summons issued under paragraph (2) of section 7602(a).”).
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The affected taxpayer may file a petition to quash the third-party summons in
federal court. Id., § 7609(b)(2). The IRS bears the initial burden of showing the
summons’ prima facie validity in a proceeding on a petition to quash. High Desert
Relief, 917 F.3d at 1182. This requires the IRS to make a showing that: (1) “the
investigation will be conducted pursuant to a legitimate purpose;” (2) “the inquiry may be
relevant to [that] purpose;” (3) “the information sought is not already within the [IRS’s]
possession;” and (4) “the administrative steps required by the Code have been followed
– in particular, that the ‘Secretary or his delegate,’ after investigation, has determined
the further examination to be necessary and has notified the taxpayer in writing to that
effect.” Powell, 379 U.S. 48 at 57–58. The IRS’s initial burden to show “that it meets
the Powell factors ‘is a slight one,’ primarily because the tax code ‘must be read broadly
in order to ensure that the enforcement powers of the IRS are not unduly restricted.’”
High Desert Relief, 917 F.3d at 1182 (quoting United States v. Balanced Fin. Mgmt.,
Inc., 769 F.2d 1440, 1443 (10th Cir. 1985)). “The requisite showing is generally made
by affidavit of the agent who issued the summons and who is seeking enforcement.” Id.
at 1182–83 (quotation omitted). Upon making this prima facie showing of validity, “[t]he
burden then shifts to the taxpayer to factually refute the Powell showing or factually
support an affirmative defense – conclusory allegations are insufficient.” Standing
Akimbo, 955 F.3d at 1155 (citing Balanced Fin. Mgmt., 769 F.2d at 1444). “This is a
heavy burden.” Id. (citation omitted).
The recommendation reviewed IRS’s motion for summary denial under the
standard for summary judgment pursuant to Federal Rule of Civil Procedure 56
because the motion required the court to review declarations and affidavits outside of
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the petition. Docket No. 32 at 6. GSH has not objected to Judge Varholak’s use of the
summary judgment standard, and the Court will apply the same standard. See
Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (“if ‘matters outside
the pleading are presented to and not excluded by the court, the motion shall be treated
as one for summary judgment and disposed of as provided in Rule 56’” (quoting Fed. R.
Civ. P. 12(d))).
Accordingly, the Court will “view the record in the light most favorable to
[petitioner] and ask whether the IRS has shown that there are no genuine disputes of
material fact and that it is entitled to judgment as a matter of law.” Standing Akimbo,
955 F.3d at 1156 (quoting High Desert Relief, 917 F.3d at 1181). “Notably, [the]
traditional summary-judgment standard of review precludes [petitioner] from resting on
conclusory statements because such statements do not suffice to create a genuine
issue of material fact.” Id. (citation and quotations omitted).
The Court will “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is proper if it
is specific enough to enable the Court “to focus attention on those issues – factual and
legal – that are at the heart of the parties’ dispute.” United States v. 2121 East 30th
Street, 73 F.3d 1057, 1059 (10th Cir. 1996).
III. ANALYSIS
To the extent that GSH’s objection argues that the recommendation failed to
apply the correct legal standard because third-party summons are governed by the
procedures in 28 U.S.C. § 7611 and not by the application of the Powell factors, the
Court will deny the objection. The Tenth Circuit has rejected GSH’s argument and
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found that the IRS’s ability to issue third-party summons is governed by Powell, even in
church tax examinations. God’s Storehouse Topeka Church, 2024 WL 1515742, at *6
(citing with approval Judge Varholak’s recommendation, God’s Storehouse Topeka
Church v. United States, No. 22-mc-00046-PAB, 2023 WL 2824525, at *12 (D. Colo.
Feb. 22, 2023)).
The Court turns to GSH’s objection that Judge Varholak misapplied the Powell
factors. Docket No. 33 at 9. GSH asserts that the IRS has failed to establish that the
investigation will be conducted pursuant to a legitimate purpose. Id. (citing Powell, 379
U.S. at 58). GSH states that “it is proper for the ‘court to inquire into the underlying
reasons for the examination. It is the court’s process which is invoked to enforce the
administrative summons and a court may not permit its process to be abused.’” Id.
(citing Powell, 379 U.S. at 58).
GSH argues that there is an insufficient “grounding in fact to legitimize the
purposes of this examination.” 1 Id. at 11. GSH contends that the “only concrete ‘fact’
suggesting that the Church ‘is operating as a thrift shop rather than as a church’ instead
of a ‘church operating a thrift shop’ is that Agent Henry could not locate the Church’s
1 The objection also asserts that “Agent Henry’s affidavit is based on an incorrect
understanding of churches’ tax-exempt status under federal tax law.” Docket No. 33 at
10. GSH does not explain what relevance Agent’s Henry’s understanding of tax law has
to Judge Varholak’s order. As such, this objection is unspecific, and the Court need not
consider it. Furthermore, GSH’s argument regarding its tax exempt status under
§ 501(c)(3) assumes too much. Agent Henry is investigating whether or not GSH is a
church for tax purposes. As such, GSH’s reliance on the fact that churchs are
conconsidered tax exempt organizations does not call into question Agent Henry’s
investigation. GSH further argues that the IRS has failed to prove a legitimate purpose
because it has failed to sufficiently explain the concerns which give rise to inquiry as
required by § 7611. Id. The Tenth Circuit has rejected that § 7611 is applicable to third-
party summons. God’s Storehouse Topeka Church, 2024 WL 1515742 at *5. The
Court will not therefore incorporate § 7611’s requirements into the first Powell factor.
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dates and times of weekly services on the internet.” Id. (quoting Docket No. 9-1 at 3,
¶ 9). GSH asserts that the only fact upon which the IRS relied to initiate its investigation
into whether it engaged in political campaign intervention is Mr. Kloos’s use of the
phrase “Founder of God’s Storehouse” on his political signs. Id. at 2. Finally, GSH
claims that the IRS had no concrete facts to rely on to investigate whether it owed
unrelated business income tax for its sale of coffee because Agent Henry’s preliminary
investigation showed that GSH sells coffee to patrons at cost. Id. at 13. GSH argues
these facts are insufficient grounds for the IRS to initiate a church tax inquiry. Id. at 11–
12.
GSH also maintains that Judge Varholak mischaracterizes GSH’s arguments as
requesting the Court to stand in the shoes of the IRS and assess the merits of GSH’s
claim that it is a church. Id. at 13. Instead, it insists that it is only asking the Court to
assess the underlying reasons for the examination. Id. GSH claims that Judge
Varholak improperly disregarded evidence that the IRS’s investigation was initiated
because the FFRF sent the IRS a letter suggesting that GSH had committed tax
violations. Id. at 12. GSH further argues that Judge Varholak “ignored the evidence of
the IRS’s past actions regarding the targeting of nonprofit organizations.” Id. It asserts
that this evidence, viewed in the light most favorable to GSH, is sufficient to support an
inference that the IRS’s investigation is being conducted for an illegitimate purpose and
that this inference is sufficient to defeat summary judgment. Id. at 12–13.
The recommendation states that “Agent Henry attests that he issued the FISERV
Summons in order to assist in determining whether Petitioner is properly classified as a
tax-exempt church, engaged in prohibited political intervention, or is liable for
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unreported taxes.” Docket No. 32 at 16. Judge Varholak concluded that “[t]hese
purposes are plainly proper.” Id. at 16–17 (citing Clarke, 573 U.S. at 250 (emphasizing
that the IRS has “broad latitude to issues summonses ‘for the purpose of ascertaining
the correctness of any return [and] determining the liability of any person for any internal
revenue tax’” (quoting 26 U.S.C. § 7602(a))). Judge Varholak explained that the IRS is
not required to make a “showing of cause for suspecting fraud” and that a reviewing
court “may ask only whether the IRS issues a summons in good faith.” Id. at 17
(quoting Powell, 379 U.S. at 57 and Clarke, 573 U.S. at 254). Judge Varholak found
that GSH’s “proposed inferences miss the point. At this stage, the Court’s task is to
evaluate the IRS’s good faith in undertaking the investigation, as measured by the
Powell factors.” Id. at 18 n.10. Judge Varholak determined that GSH’s proposed
inferences “relate to the merits of the IRS’s ongoing investigation as opposed to the
IRS’s good faith in undertaking the investigation [and] are immaterial to the analysis at
hand.” Id. The recommendation expressly addresses the FFRF letter. Id. at 19. Judge
Varholak found that GSH “has made a valid factual allegation that the FFRF sent a
letter to the IRS requesting that the IRS investigate Petitioner on various grounds.” Id.
Judge Varholak explained that, while “it may be that the FFRF acted with political
motivations in notifying the IRS of Petitioner’s potential tax violations,” GSH’s “allegation
that the IRS received a politically motivated tip regarding [GSH] does not meet [GSH’s]
‘heavy burden’ to factually refute the IRS’s prima facie showing of a proper purpose.”
Id. (citing Standing Akimbo, 955 F.3d at 1155).
The Court finds that GSH has failed to show that Judge Varholak erred in
determining that the IRS made a prima facie showing that its investigation was made
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pursuant to a legitimate purpose and that GSH has failed to meet its heavy burden to
factually refute the IRS’s Powell showing. The Court finds Agent Henry’s affidavit, that
indicates the summons was issued to assist the IRS in determining whether GSH is
properly classified as a tax-exempt church, whether GSH engaged in prohibited political
intervention, and whether GSH is liable for unreported taxes, is sufficient to meet the
IRS’s “slight” burden to meet the first Powell factor. See High Desert Relief, 917 F.3d at
1183 (quoting Sugarloaf Funding, LLC v. U.S. Dep’t of the Treasury, 584 F.3d 340, 345
(1st Cir. 2009) (“An affidavit of the investigating agent that the Powell requirements are
satisfied is sufficient to make the prima facie case.”)); see also United States v.
Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir. 1993); Alphin v. United States, 809 F.2d 236,
238 (4th Cir. 1987); In re Newton, 718 F.2d 1015, 1019 (11th Cir. 1983); United States
v. Will, 671 F.2d 963, 966 (6th Cir. 1982); United States v. Kis, 658 F.2d 526, 538 (7th
Cir. 1981); United States v. Garden State Nat’l Bank, 607 F.2d 61, 68 (3d Cir. 1979).
GSH does not dispute that the purposes for third-party summons stated by Agent Henry
are legitimate. See Docket No. 33 at 9–14. Rather, GSH suggests that the facts relied
upon by Agent Henry are insufficient grounds for a church tax investigation. Id. GSH
has not shown why Judge Varholak’s reliance on Agent Henry’s affidavit, which
identifies legitimate purposes, is not, by itself, sufficient to support a prima facie showing
on the first Powell factor, regardless of the facts that Agent Henry purports to have
relied on in determining that a church tax examination is warranted. See Sugarloaf
Funding, LLC, 584 F.3d at 345 (“An affidavit of the investigating agent that the Powell
requirements are satisfied is sufficient to make the prima facie case.”). Furthermore,
GSH provides no support for its contention that an IRS agent’s inability to locate
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information about church services on GSH’s website, the fact that GSH sells coffee to
patrons, and the fact that Mr. Kloos’s political campaign signs state that he is the
founder of GSH fail to provide a sufficient basis for further investigating GSH’s assertion
that it is eligible for treatment as a church under the tax code. Given that the Supreme
Court has expressly rejected the idea that the IRS must make a “showing of cause for
suspecting fraud,” Powell, 379 U.S. at 53, and that the IRS must meet only a “slight”
burden in making a prima facie showing on the Powell factors, the Court finds that
Agent Henry’s affidavit provides sufficient grounds to show the summons was issued
pursuant to legitimate purposes.
The Court finds that GSH has also failed to meet its “heavy burden” to factually
refute the IRS’s prima facie Powell showing. Standing Akimbo, 955 F.3d at 1155.
Where “the moving party does not bear the ultimate burden of persuasion at trial, it may
satisfy its burden at the summary judgment stage by identifying a lack of evidence for
the nonmovant on an essential element of the nonmovant’s claim.” Bausman v.
Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (internal quotations and
citation omitted). “Once the moving party meets this burden, the burden shifts to the
nonmoving party to demonstrate a genuine issue for trial on a material matter.”
Concrete Works of Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir.
1994). The nonmoving party may not rest solely on the allegations in the pleadings, but
instead must designate “specific facts showing that there is a genuine issue for trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid
summary judgment, the nonmovant must establish, at a minimum, an inference of the
presence of each element essential to the case.” Bausman, 252 F.3d at 1115. This
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summary judgment standard is consistent with the burden GSH faces to receive an
evidentiary hearing on its motion to quash. The Supreme Court has held that:
As part of the adversarial process concerning a summons’s validity, the taxpayer
is entitled to examine an IRS agent when he can point to specific facts or
circumstances plausibly raising an inference of bad faith. Naked allegations of
improper purpose are not enough: The taxpayer must offer some credible
evidence supporting his charge. But circumstantial evidence can suffice to meet
that burden; after all, direct evidence of another person’s bad faith, at this
threshold stage, will rarely if ever be available. And although bare assertion or
conjecture is not enough, neither is a fleshed out case demanded: The taxpayer
need only make a showing of facts that give rise to a plausible inference of
improper motive.
Clarke, 573 U.S. at 254–55.
While both Rule 56 and Clarke require a court to make plausible inferences in a
taxpayer’s favor, GSH has failed to point to specific facts and circumstances that
plausibly raise an inference of bad faith. As Judge Varholak explained, GSH has shown
that the FFRF may have had an improper motive in notifying the IRS about GSH’s
alleged tax violations, but GSH has failed to make any showing that can impute this
improper purpose to the IRS. Docket No. 32 at 19 (“And it may be that the FFRF acted
with political motivations in notifying the IRS of Petitioner’s potential tax violations. But
Petitioner’s allegation that the IRS acted with the same political purpose in undertaking
an investigation into Petitioner’s status and tax liability is conclusory.”).
Furthermore, GSH is incorrect that Judge Varholak “ignored the evidence of the
IRS’s past actions regarding the targeting of nonprofit organizations.” Docket No. 33 at
12. Judge Varholak expressly addressed GSH’s evidence. The recommendation
states that GSH “cites to nearly decade-old findings by the United States House of
Representatives and the Treasure Inspector General for Tax Administration that one
specific former IRS official had used her influence to improperly target organizations for
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partisan purposes. That former official has no apparent or alleged connection to the
investigation at issue, and the Court declines to find that a congressional or agency
finding of bad faith by a former agency official imputes a reasonable inference of bad
faith to the entire agency nearly a decade later.” Id. at 20–21 n.12 (internal citations
omitted). The Court agrees. GSH has failed to identify specific facts that show that
Agent Henry or the IRS issued the summons for the partisan purposes alleged by GSH.
That a political opponent may stand to gain from an inquiry into GSH’s tax-exempt
status is irrelevant to whether GSH has benefited from special tax treatment that it may
not be entitled to. Because GSH has failed to demonstrate specific facts and
circumstances that give rise to a plausible inference of bad faith, GSH has failed to
refute the IRS’s prima facie showing on the first Powell factor and has failed to
demonstrate that it is entitled to examine IRS agents under Clarke.
GSH’s other objections to Judge Varholak’s determination that the IRS satisfied
its burden under Powell are either perfunctory or rely on an incorrect understanding of
the IRS’s obligations under § 7611. GSH’s arguments under § 7611 have been rejected
by the Tenth Circuit, and the Court will not consider them. The Court also need not
consider GSH’s remaining perfunctory arguments. Elide Fire USA, Corp. v. Auto Fire
Guard, LLC, No. 21-cv-00943-WJM-KLM, 2022 WL 18777076, at *3 (D. Colo. Nov. 17,
2022) (citing Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007) (a court “is not
required to consider arguments inadequately presented”)); see also Halik v. Darbyshire,
No. 20-cv-01643-PAB-KMT, 2021 WL 4305011, at *2 (D. Colo. Sept. 22, 2021) (citing
United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not
consider . . . issues adverted to in a perfunctory manner, unaccompanied by some effort
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at developed argumentation.”). Because GSH has failed to show Judge Varholak erred
in any findings of fact or conclusions of law in his recommendation, the Court will
overrule GSH’s objection and will adopt the recommendation.
III. CONCLUSION
For the foregoing reasons, it is
ORDERED that the Recommendation of United States Magistrate Judge [Docket
No. 32] is ACCEPTED. It is further
ORDERED that Petitioner’s Objection to Recommendation of United States
Magistrate Judge [Docket No. 33] is OVERRULED. It is further
ORDERED that petitioner’s Verified Petition to Quash Internal Revenue Service
Third-Party Summons [Docket No. 1] and God’s Storehouse Topeka Church Motion for
Limited Discovery with Incorporated Brief in Support [Docket No. 27] are DENIED. It is
further
ORDERED that United States’ Motion for Summary Denial of Verified Petition to
Quash Internal Revenue Service Third-Party Summons [Docket No. 9] is GRANTED. It
is further
ORDERED that this case is closed.
DATED January 6, 2026.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
_____	__	__	___	__	____	_________________________	_
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