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United States v. Eib

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


February 12, 2009

UNITED STATES OF AMERICA, AND LYNNE HARTMANN, REVENUE OFFICER, INTERNAL REVENUE SERVICE, PETITIONERS,
v.
MATTHEW O. EIB, RESPONDENT.

MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT

Taxpayer: MATTHEW O. EIB

This matter came before me on February 6, 2009, under the Order to Show Cause filed November 5, 2008, which, with the verified petition and exhibits, was served at respondent's current residence on November 24, 2008, by leaving copies of the documents with someone of suitable age and discretion who resides there, in accordance with Fed. R. Civ. P. 4(e)(2)(B). Caroline A. Newman appeared for petitioners, and petitioning Revenue Officer Lynne Hartmann 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 Hartmann's investigation to determine financial information for assessed individual income tax liabilities for the tax years ending December 31, 1997, December 31, 1999, and December 31, 2001. Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be proper. 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).

I have reviewed the petition and documents in support. Based on the uncontroverted verification of Revenue Officer Hartmann and the entire record, I make the following findings:

(1) The summons issued by Revenue Officer Lynne Hartmann to respondent Matthew O. Eib on June 18, 2008, 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 determine financial information for assessed individual income tax liabilities for the tax years ending December 31, 1997, December 31, 1999, and December 31, 2001.

(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, Matthew O. Eib, to rebut that prima facie showing.

(8) Respondent presented no argument or evidence to rebut the prima facie showing.

I therefore recommend that the IRS summons issued to respondent, Matthew O. Eib, 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 Lynne Hartmann, or her 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 advised 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 of the Court is hereby directed to serve these findings and recommendations and any future orders to Mr. Matthew O. Eib, 7170 Claremont Circle, Roseville, CA 95678.

20090212

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