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United States v. Silva

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


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 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, Stephen J. Silva, to rebut that prima facie showing.

(8) Despite opportunity for written response and submission of two written responses, respondent presented no argument or evidence rebutting the prima facie showing.

(9) Respondent appeared in person at the Show Cause Hearing and stated that he was willing to comply with the summonses.

Accordingly, it is hereby ORDERED as follows:

1. The I.R.S. summonses issued to respondent, Stephen J. Silva, are ENFORCED.

2. Respondent, Stephen J. Silva, is ORDERED to appear at the I.R.S. offices at 4330 Watt Avenue, SA-3315, Sacramento, California, 95821, before Revenue Officer Charles Duff, or his designated representative, within 21 days of the issuance of this order, or at an alternate time and date to be set in writing by Revenue Officer Duff, 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.

3. The Clerk shall serve this and future orders to Mr. Stephen J Silva, P.O. Box 7104, Auburn, California, 95604.

It is SO ORDERED.

20090731

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