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United States v. Burch Construction

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


August 28, 2009

UNITED STATES OF AMERICA, AND CHARLES DUFF, REVENUE OFFICER, INTERNAL REVENUE SERVICE, PETITIONERS,
v.
BURCH CONSTRUCTION RESPONDENT.

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

ORDER ENFORCING I.R.S. SUMMONS

Taxpayer: DANIEL W. BURCH dba DANIEL W. BURCH,

The United States and Revenue Officer Charles Duff here petition for enforcement of an I.R.S. summons. 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 an administrative summons, attached as Exhibit A to the petition. The summons is in aid of Revenue Officer Duff's investigation to collect assessed and delinquent Employer's Federal Quarterly tax for the periods ending March 31, 2005, June 30, 2005, September 30, 2005, December 31, 2005, March 31, 2006, June 30, 2006, September 30, 2006, and December 31, 2006, and Employer's Federal Annual Unemployment tax for the years ending December 31, 2005 and December 31, 2006, all owed by Daniel W. Burch dba Burch Construction.

On May 12, 2009, Judge Hollows issued an Order to Show Cause, ordering the respondent, Daniel W. Burch, to show cause why the I.R.S. summons issued to him on November 20, 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 summons. Because of respondent's statement, Judge Hollows filed an Order on July 7, 2009, discharging the order to show cause and ordering respondent to appear before petitioning Revenue Officer Charles Duff, or his designated representative, to provide testimony and produce the requested documents, on July 17, 2009, at 9:00 a.m. At respondent's request, the appearance date was reset by letter dated July 13, 2009, from AUSA Himel to respondent, from July 17 to July 20, 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. Silva, No. 2:09-mc-00044-LKK-GGH (E.D. Cal. July 3, 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 summons issued by Revenue Officer Charles Duff to respondent Daniel W. Burch, on November 20, 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 collect assessed and delinquent Employer's Federal Quarterly tax for the periods ending March 31, 2005, June 30, 2005, September 30, 2005, December 31, 2005, March 31, 2006, June 30, 2006, September 30, 2006, and December 31, 2006, and Employer's Federal Annual Unemployment tax for the years ending December 31, 2005 and December 31, 2006, all of Daniel W. Burch dba Burch Construction.

(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, Daniel W. Burch, to rebut that prima facie showing.

(8) 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 summons.

Accordingly, it is hereby ORDERED as follows:

1. The I.R.S. summons issued to respondent, Daniel W. Burch, is ENFORCED.

2. Respondent, Daniel W. Burch, 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. Daniel W. Burch, 9554 Highland Park Drive, Roseville, CA, 95678.

IT IS SO ORDERED.

20090828

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