The opinion of the court was delivered by: Judge: Oliver W. Wanger
CERTIFICATION OF FACTS CONCERNING PETITION RE: CONTEMPT OF ORDER FILED JANUARY 11, 2008 (DOCS. 27, 28, 30) ORDER SETTING THE MATTER FOR HEARING AND JUDGMENT OF CONTEMPT BEFORE THE DISTRICT JUDGE PURSUANT TO 28 U.S.C. § 636(e)(6)(B)
Petitioners are proceeding with a civil action in this Court. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 72-302(c)(9) and 72-303.
Pending before the Court is the petition of Petitioners United States of America and Mike Goode, Revenue Agent of the Internal Revenue Service (IRS), filed on July 2, 3, and 22, 2008, regarding alleged contempt by Respondent Allan D. Tervort of the Court's order dated January 11, 2008. In the order of January 11, 2008, the Court directed Respondent to appear personally in obedience to the summons. (Order at 2.) The summons directed Petitioner to appear before the revenue officer to provide testimony and to bring books, records, papers, and other data relating to his investigation of Respondent's income tax liability for tax years ending in 2001 through 2004, and a penalty concerning tax year ending December 31, 2003. (Decl. of Goode, Doc. 1-3 p. 2, Ex. A.)
Petitioners requested that the Magistrate Judge hold a hearing and certify the facts of the contempt to the District Judge and set the matter before the District Judge for hearing and judgment pursuant to 28 U.S.C. § 636(e)(6)(B).
On July 22, 2008, the Court issued an order to Respondent to show cause why, for his failure to comply with the Court's order, he should not be held in civil contempt of this Court, be incarcerated until he complies with the order, and be ordered to pay a daily fine until he complies with the order along with compensatory fines for the resources the government has spent issuing and enforcing the summons. (Doc. 30.) The OSC was served on the Respondent by mail on July 22, 2008. Respondent filed a response on September 23, 2008, along with the declarations of Alan Tervort and Matthew Mark. Petitioner served and filed a reply on October 7, 2008.
The hearing on the order to show cause was held on November 7, 2008. Stephanie Hamilton Borchers appeared on behalf of the Petitioner, along with Revenue Agent Mike Goode. Respondent Allan Tervort appeared personally at the hearing. The parties were given an opportunity to file supplemental briefs, and the Petitioner filed a supplemental brief on November 21, 2008; Respondent filed on December 9, 2008, a supplemental brief that was due no later than December 5, 2008. The brief was untimely and is therefore DISREGARDED.
On January 11, 2008, the Court adopted the undersigned Magistrate Judge's findings and recommendations to grant the petition of Petitioners United States of America and Revenue Officer Mike Goode to enforce an IRS summons. (Doc. 25). The district court's order specifically provided the following:
Respondent shall personally appear in obedience to the IRS summons on February 21, 2008, at 10:00 a.m., at the IRS office located at 4825 Coffee Road, Bakersfield, CA, 93308. (Emphasis added.) (Order p. 2.)
The summons was described in the declaration of Petitioner Goode submitted in support of the petition to enforce the summons. (Doc. 1-3, p. 2.) Further, a copy of it was attached to Petitioner Goode's declaration, (Doc. 1-3, Ex. A). The summons stated that it was for periods described as follows:
Form 1040 for the calendar periods ending December 31, 2001, December 31, 2002, December 31, 2003, December 31, 2004 and December 31, 2005 and Civil Penalty for the quarterly period ending December 31, 2003. (Doc. 1-3, Ex. A, p. 5.) The summons directed the following:
You are hereby summoned and required to appear before MIKE GOODE, an Internal Revenue Service (IRS) officer, and/or his or her designee, to give testimony and to bring for examination the following information related to the collection of the tax liability of the person identified above for the periods shown: Form 1040 for the calendar periods ending December 31, 2001, December 31, 2002, December 31, 2003, December 31, 2004 and December 31, 2005 and Civil Penalty for the quarterly period ending December 31, 2003 All documents and records you possess or control regarding assets, liabilities, or accounts held in the taxpayer's name or for the taxpayer's benefit which the taxpayer wholly or partially owns, or in which the taxpayer has a security interest. These records and documents include but are not limited to: all bank statements, checkbooks, canceled checks, saving account passbooks, records or certificates of deposit for the period:
From 06/30/2006 To 01/20/2007
Also include all current vehicle registration certificates, deeds or contracts regarding real property, stocks and bonds, accounts, notes and judgments receivable, and all life or health insurance policies.
IRS will use this information to prepare a Collection Information Statement. We have attached a blank statement to guide you in producing the necessary documents and records. (Id.)
In support of the request for issuance of an order to show cause, Petitioners served and filed on July 2, 2008, the declaration of Revenue Officer Goode (Doc. 27-2), in which Officer Goode stated that in connection with Respondent's tax liabilities for years ending December 31, 2001 through December 13, 2004, he had issued the summons; the summons had been delivered to Respondent; Respondent had appeared on February 21, 2008, as summoned; however, Respondent refused to produce any documents or records as had been demanded in the summons, and he refused to answer questions propounded by Officer Goode regarding where Respondent worked and banked, and Respondent's address. (Goode Decl., p. 2.) Goode stated that Respondent stated that his house in Rosamond was vacant and that he was living with different friends, and he claimed that ...