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United States v. Burch

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


December 8, 2009

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

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

ORDER RE: CONTEMPT

On November 2, 2009, this Court issued an Order to Show as to why Respondent Daniel W. Burch should not be held in civil contempt for his failure to comply with the Court's Order filed on August 31, 2009, which directed Respondent to comply with the Internal Revenue Service ("IRS") Summons issued by Petitioners on November 20, 2008. A hearing on the Order to Show Cause was held on December 3, 2009. Respondent appeared in pro se. Petitioners were represented by Assistant United States Attorney Yoshinori Himel.

The Court found at the conclusion of the hearing, by clear and convincing evidence, that Respondent remained in contempt of the Court's prior orders in this case. The Court makes the following findings of fact in that regard:

1. On May 5, 2009, Petitioners filed the instant Petition to Enforce IRS summons as a result of Respondent's failure to comply with an IRS summons seeking information pertaining to Burch's federal quarterly taxes between March 31, 2005 and December 31, 2006, and pertaining to Burch's annual unemployment taxes for the period between December 31, 2005 and December 31, 2006;

2. The assigned magistrate judge thereafter issued an Order to Show Cause as to why Respondent should not be compelled to comply with the IRS summons issued on November 31, 2008;

3. While the magistrate judge discharged the OSC upon Respondent's representation that he would comply with Petitioners' requests, Respondent in fact failed to do so, prompting this Court to issue an Order on August 31, 2009 compelling Respondent's appearance at IRS offices within 21 days following issuance of the Order;

4. On October 27, 2009, Petitioners filed a Petition for Contempt on grounds that while Respondent appeared at the IRS' offices, he failed to provide the required documents;

5. On November 2, 2009, the Court issued the second Order to Show Cause in this matter on grounds of Respondent's continuing noncompliance, and set a hearing for December 3, 2009;

6. Respondent wrote a letter to the Court dated November 23, 2009 indicating his intent to provide the information requested by the IRS, but failing to explain his earlier failure to provide that information;

7. Despite Respondent's representation as set forth above, at the time of the December 3, 2009 he made no offer to locate and/or produce the requested documents, stating only that the IRS would have to find his accountant to do so;

8. The Court finds by clear and convincing evidence that Respondent's actions throughout this matter have been evasive, untruthful, and in willful and direct contempt of this Court's Orders.

As a result of Respondent's ongoing contempt, the Court ordered, at the close of the December 3, 2009 hearing, that he be remanded to custody until such time as he demonstrates compliance with the IRS summons dated August 31, 2009, to the satisfaction of the Court. The daily housing fee is waived by the Court.

IT IS SO ORDERED.

20091208

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