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United States v. Shadley

February 1, 2010

UNITED STATES OF AMERICA, AND CHARLES DUFF, REVENUE OFFICER, INTERNAL REVENUE SERVICE, PETITIONERS,
v.
LINDA P. SHADLEY RESPONDENT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

MAGISTRATE JUDGE'S ORDER AND FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT

Taxpayer: LINDA P. SHADLEY

This matter came before me on October 15, 2009, under the Order to Show Cause filed September 3, 2009, which, with the verified petition and exhibits, was personally served on respondent on September 18, 2009, in compliance with Fed. R. Civ. P. 4(e). Yoshinori H. T. Himel appeared for petitioners, and petitioning Revenue Officer Charles Duff was present. Respondent did not file an opposition and appeared at the hearing.

The Verified Petition to Enforce Internal Revenue Service Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) in aid of Revenue Officer Duff's investigation to determine the existence and amounts of individual income tax liabilities for the years ending December 31, 2001, December 31, 2002, December 31, 2004, December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2008.

During the Order to Show Cause Hearing, respondent stated that she was willing to comply with the summons. Because of respondent's statement, I filed an Order on October 21, 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 November 3, 2009, at 1:00 p.m.

Respondent appeared for the appointment before the Revenue Officer, but she failed to comply. On December 7, 2009, the undersigned directed the government to file and serve declaration outlining how respondent failed to comply with the summons. The government has now filed the declaration of Charles Duff which states in part:

4. On November 3, 2009, respondent appeared before me at the IRS Sacramento Offices. She brought with her non of the papers requested in the summons. She was placed under oath and did respond to some questions, until such time as she asked to stop so she could have an attorney present with her. She has yet to provide a power of attorney in this case.

Duff. Decl., filed December 11, 2009.

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 petition and documents in support. Based on the uncontroverted verification of Revenue Officer Woods and the entire record, I make the following findings:

(1) The summons issued by Revenue Officer Charles Duff to respondent, Linda P. Shadley, on April 29, 2009, seeking testimony and production of documents and records in respondent's possession, was issued in good faith and for a legitimate purpose under I.R.C. § 7602, that is, to determine the existence and amounts of individual income tax liabilities for the years ending December 31, 2001, December 31, 2002, December 31, 2004, December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2008.

(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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