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United States v. Ratcliff

June 11, 2009

UNITED STATES OF AMERICA, AND JEFFREY BENNETT, REVENUE OFFICER, INTERNAL REVENUE SERVICE, PETITIONERS,
v.
EDWIN RATCLIFF, RESPONDENT.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER ENFORCING I.R.S. SUMMONSES

Taxpayer: EDWIN RATCLIFF

The United States and Revenue Officer Jeffrey Bennett here petition for enforcement of two I.R.S. summonses. The matter was placed before United States Magistrate Judge Gregory G. Hollows under 28 U.S.C. § 636 et seq. and Local Rule 73-302.

The Verified Petition to Enforce Internal Revenue Service Summons initiating this proceeding (filed March 31, 2008, vacated June 6, 2008, but now renewed) seeks to enforce two administrative summonses, attached as Exhibit A to the petition. One summons is in aid of Revenue Officer Bennett's investigation for collection of respondent's delinquent income tax assessments for the tax years ending December 31, 2001, December 31, 2002, December 31, 2003, and December 31, 2004. The other is for determination of respondent's income tax for the tax years ending December 31, 2005 and December 31, 2006.

On April 15, 2008, Judge Hollows issued an Order to Show Cause, ordering the respondent, Edwin Ratcliff, to show cause why the I.R.S. summons issued to him on October 22, 2007, should not be enforced. The Petition, Points and Authorities, and Order to Show Cause were served upon the respondent according to Fed. R. Civ. P. 4(e).

Respondent filed a statement of non-opposition under paragraph 6 on page 2 of the Order to Show Cause, and was therefore excused from appearing at the show-cause hearing held May 29, 2008. Judge Hollows presided at the hearing. Yoshinori H. T. Himel appeared for petitioners.

Because of respondent's statement of non-opposition to enforcement of the summonses, Judge Hollows filed an Order on June 6, 2008, vacating the petition to enforce without prejudice to its renewal, discharging the order to show cause, and ordering respondent to appear before Revenue Officer Bennett, or his designated representative, to provide testimony and produce the requested documents. Now, as allowed by the Order filed June 6, 2008, respondent has failed to comply and petitioners have renewed their petition to enforce the I.R.S. summonses.

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 entire record de novo under 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304. I read Judge Hollows' Order filed June 6, 2008, as theMagistrate Judge's findings and recommendations to grant the unopposed petition and to enforce the I.R.S. summonses. See United States v. First Nat'l Bank of Atlanta, 628 F.2d 871, 873 (5th Cir. 1980); United States v. Bell, 57 F. Supp. 2d 898, 901 (N.D. Cal. 1999). Accordingly, I find:

(1) The summonses issued by Revenue Officer Jeffrey Bennett to respondent Edwin Ratcliff, on October 22, 2007, seeking testimony and production of documents and records in respondent's possession, were issued in good faith and for a legitimate purpose under I.R.C. § 7602, that is, to obtain information to collect respondent's income tax for the tax years ending December 31, 2001, December 31, 2002, December 31, 2003, and December 31, 2004, and to determine respondent's correct income tax for the tax years ending December 31, 2005 and December 31, 2006.

(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 ...


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