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U.S. v. SMITH
January 30, 2004.
UNITED STATES OF AMERICA and ED SABRACK, Revenue Officer, Internal Revenue Service, Petitioners,
EMMETT W. SMITH, Respondent
The opinion of the court was delivered by: WILLIAM HASKELL ALSUP, District Judge
PETITIONERS' STATUS STATEMENT AND VOLUNTARY
DISMISSAL OF ACTION
PURSUANT TO F.R.C.P. 41(a)
On August 20, 2003, the Petitioners, the United States of America and
Revenue Officer Ed Sabrack, filed a Verified Petition to enforce an
administrative Internal Revenue Service ("IRS") summons served upon the
Respondent, Emmett W. Smith, on March 31, 2003, which sought testimony
and records with respect to the Respondent's potential income tax
liabilities for taxable years 1999, 2000, and 2001. On September 8, 2003,
the Court issued an Order to Show Cause pursuant to which the Respondent
was ordered to appear before the Court and show cause as to why he should
not be compelled to comply with the administrative summons. The Order to
Show Cause was served upon the Respondent on September 11, 2003, by
leaving a copy thereof at his last and usual place of abode located at
6 Hillcrest, Unit 5, Larkspur, California 94939.
On October 16, 2003, the Court held the Show Cause hearing; the
Respondent failed to appear. On that same date, the Court entered an
Order Enforcing Summons, pursuant to which the Respondent was ordered to
appear before an agent of the IRS on November 4, 2003, at 10:00
a.m. and give testimony and produce documents in response to the
summons. In the event the Respondent failed to either appear or to
provide testimony and documents in response to the summons, and as
ordered by the Court, the Order further set a Contempt hearing for
November 6, 2003, at 11:00 a.m.
The Petitioners were ordered to serve the Order Enforcing Summons upon
the Respondent. The IRS made three attempts to personally serve the
Respondent, to no avail. On the last attempt, a neighbor of the
Respondent advised the IRS agent attempting service that the Respondent
had moved to San Jose, but did not provide a forwarding address. The ERS
immediately filed a postal tracer with the U.S. Postal Service, but has
to date not received any further information regarding the Respondent's
current address or whereabouts. As such, the IRS has been unable to
personally serve the Order Enforcing Summons upon the Respondent. In
addition, copies of the Order that were mailed to the Respondent from the
office of Counsel for the Petitioners have been returned as unclaimed.
VOLUNTARY DISMISSAL OF ACTION UNDER F.R.C.P.
Given that the IRS has been unable to locate the Respondent to
effectuate personal service of the Order Enforcing Summons or to further
prosecute this action, the Petitioners hereby voluntarily dismiss ...
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