IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
February 1, 2010
UNITED STATES OF AMERICA, AND CHARLES DUFF, REVENUE OFFICER, INTERNAL REVENUE SERVICE, PETITIONERS,
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 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, Linda P. Shadley, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing.
I therefore recommend that the IRS summons issued to respondent, Linda P. Shadley, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 4330 Watt Avenue, Sacramento, California, 95821, before Revenue Officer Charles Duff, or his designated representative, on the twenty-first day after the filing date of the summons enforcement order, or at a later date and time to be set in writing by the Revenue Officer, 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. I further recommend that if it enforces the summons, the Court retain jurisdiction to enforce its order by its contempt power.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72-304 of the Local Rules of the United States District Court for the Eastern District of California. Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten (10) days after service of the objections. The District Judge will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
The Clerk shall serve this and future orders by mail to Ms. Linda P. Shadley, at 3601 Mint Way, Greenwood, California, 95635.
It is SO ORDERED.
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