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United States v. Silva

July 31, 2009

UNITED STATES OF AMERICA, AND CHARLES DUFF, REVENUE OFFICER, INTERNAL REVENUE SERVICE, PETITIONERS,
v.
STEPHEN J. SILVA, RESPONDENT.



ORDER ENFORCING I.R.S. SUMMONSES

Taxpayer: ALTA SIERRA GROUP TRUST

The United States and Revenue Officer Charles Duff 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 seeks to enforce two administrative summonses, attached as Exhibit A to the petition:

1. One summons is in aid of Revenue Officer Duff's tax determination investigation to ascertain the existence and amounts of U. S. Income Tax for Estates and Trusts (Form 1041) for the taxable years ending December 31, 2001, December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, and December 31, 2007, of Alta Sierra Group Trust, STEPHEN J. SILVA, Trustee.

2. The other summons is for the RO's tax collection investigation to collect assessed and delinquent U. S. Income Tax for Estates and Trusts for the tax years ending December 31, 1998, and December 31, 1999, and Employer's Federal Quarterly Tax for the period ending March 31, 2006, all of Alta Sierra Group Trust, STEPHEN J. SILVA, Trustee.

On May 12, 2009, Judge Hollows issued an Order to Show Cause, ordering the respondent, Stephen J. Silva, to show cause why the I.R.S. summonses issued to him on November 13, 2008, should not be enforced. The Petition, Points and Authorities, and Order to Show Cause were personally served upon the respondent.

This matter came before Judge Hollows on June 25, 2009. Yoshinori H. T. Himel appeared for petitioners, and petitioning Revenue Officer Charles Duff was present. Respondent appeared in person and stated that he was willing to comply with the summonses. Because of respondent's statement, Judge Hollows orally ordered respondent to appear before the I.R.S. officer, provide testimony and produce the requested documents on the agreed date of July 15, 2009, at 9:00 a.m. Judge Hollows also filed an Order on July 7, 2009, discharging the order to show cause and ordering respondent to appear before Revenue Officer Duff, or his designated representative, to provide testimony and produce the requested documents on July 15, 2009, at 9:00 a.m.

Respondent appeared for the appointment before the Revenue Officer, but he failed to comply.

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 July 7, 2009, as the Magistrate Judge's findings and recommendations to grant the unopposed petition and to enforce the I.R.S. summonses. See United States v. Ratcliff, No. 2:08-mc-00042-MCE-GGH (E.D. Cal. June 12, 2009); 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 Charles Duff to respondent Stephen J. Silva, on November 13, 2008, 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 determine the existence and amounts of U. S. Income Tax for Estates and Trusts (Form 1041) for the taxable years ending December 31, 2001, December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, and December 31, 2007; and to collect assessed and delinquent U. S. Income Tax for Estates and Trusts for the tax years ending December 31, 1998 and December 31, 1999, and Employer's Federal Quarterly Tax for the period ending March 31, 2006, all for Alta Sierra Group Trust, STEPHEN J. SILVA, Trustee.

(2) The information sought is relevant to that purpose.

(3) The information sought is not already in the possession of the ...


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