MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT
This matter was before the court on July 16, 2008, pursuant to the Order to Show Cause filed May 27, 2008, which, with the verified petition and exhibits, was served on respondent on June 11, 2008, according to Fed. R. Civ. P. 4(e). Sylvia Quast appeared for petitioners, and petitioning Revenue Officer Thomas Woods was present. Respondent did not file an opposition and did not appear at the hearing.
The Verified Petition to Enforce Internal Revenue Service Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) in aid of Revenue Officer Woods' investigation for collection of respondent's Employer's Quarterly federal tax returns (Form 941) for the periods ending March 31, 2003, March 31, 2004, June 30, 2004, and September 30, 2004; as well as for collection of respondent's Employer's Annual Unemployment tax (Form 940) for the years ending December 31, 2003, and December 31, 2004. The court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1340 and 1345. Authorization for the action is under I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.). The Order to Show Cause shifted to respondent the burden of rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
The court has reviewed the petition and documents in support thereof. Based on the uncontroverted verification of Revenue Officer Woods and the entire record, the court finds as follows:
(1) The summons issued by Revenue Officer Thomas Woods to respondent Richard Torres on November 30, 2007, seeking testimony and production of documents and records in respondent's possession, was issued in good faith and for a legitimate purpose under I.R.C. § 7602, that is, to collect respondent's Employer's Quarterly federal tax returns for the periods ending March 31, 2003, March 31, 2004, June 30, 2004, and September 30, 2004; as well as respondent's Employer's Annual Unemployment tax for the years ending December 31, 2003 and December 31, 2004.
(2) The information sought is relevant to that purpose. (3) The information sought is not already in the possession of the Internal Revenue Service.
(4) The administrative steps required by the Internal Revenue Code have been followed.
(5) There is no evidence of referral of this case by the Internal Revenue Service to the Department of Justice for criminal prosecution.
(6) The verified petition and its exhibits made a prima facie showing of satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
(7) The burden shifted to respondent, Richard Torres, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing.
The undersigned therefore recommends that the IRS summonses issued to respondent, Richard Torres, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 4330 Watt Avenue, Sacramento, California, 95821, before Revenue Officer Thomas Woods or his designated representative, on the twenty-first day after the filing date of the summons enforcement order, or at a later date and time to be set in writing by the Revenue Officer, then and there to be sworn, to give testimony, and to produce for examining and copying the books, checks, records, papers and other data demanded by the summons, the examination to continue from day to day until completed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72-304 of the Local Rules of the United States District Court for the Eastern District of California. Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The District Judge will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are admonished that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
The Clerk shall serve this order and future orders to Mr. Richard Torres, at 4220 Alan Drive, North ...