The opinion of the court was delivered by: Judge: U.S. District Judge Oliver W. Wanger
CONCERNING PETITION RE CONTEMPT OF ORDER FILED MARCH 11, 2009; ORDER SETTING THE MATTER BEFORE THE DISTRICT JUDGE FOR HEARING AND JUDGMENT PURSUANT TO 28 U.S.C. § 636(e)(6)(B)
This is a civil action to enforce an Internal Revenue Service summons. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 302(c)(9)and 303.
Pending before the Court is the Petition Re Contempt of Order Filed March 11, 2009, filed by petitioners United States of America and Naoemi Salinas, Revenue Agent of the Internal Revenue Service. The Petition (Doc. 25) alleges contempt by Respondent, Katherine Melendez Lopez, of United States District Judge Oliver W. Wanger's Order Adopting Findings and Recommendations Regarding Tax Summons Enforcement (Doc. 17). Judge Wanger's Order, filed March 11, 2009, directed Respondent to obey an IRS summons requiring Respondent to provide testimony and to bring books, records, papers, and other data relating to an IRS investigation of Respondent's assessed tax liabilities for the tax years ending December 31, 2001; December 31, 2002; December 31, 2003; December 31, 2004; December 31, 2005; and December 31, 2006.
Petitioners requested that the United States Magistrate Judge hold a hearing, certify the facts of the contempt to the District Judge, and set the matter before the District Judge for hearing and judgment pursuant to 28 U.S.C. § 636(e)(6)(B). The hearing before the undersigned was held on January 22, 2010. Benjamin E. Hall appeared on behalf of the Petitioners, along with Revenue Agent Naoemi Salinas. Respondent, Katherine Melendez Lopez, did not appear before the Court and filed no objection to the Petition.
Petitioners commenced this civil proceeding by filing their Petition to Enforce Internal Revenue Service Summons (Doc. 1) on May 29, 2008. The petition sought to enforce an IRS Summons issued December 6, 2007, which summoned Respondent to appear and give testimony and produce records relating to Respondent's tax liability for the tax years 2001 through 2006. (Doc. 1-2 at Exhibit "A"). An Order to Show Cause (Doc. 4) was issued by the Court on June 26, 2008, requiring Respondent to appear and show cause why she should not be compelled to obey the IRS summons. A Proof of Service filed with the Court (Doc. 7) demonstrates that on July 26, 2008, Respondent was personally served at her business address, 3037 E. Belmont, Fresno, California, with the Petition, the supporting materials, and the Order to Show Cause.
The case came before the previously assigned Magistrate Judge on the Order to Show Cause on October 17, 2008. As the Court noted in its Findings and Recommendations Re: Tax Summons Enforcement (Doc. 11), Respondent did not file objections to the Petition and did not appear at the hearing. The Magistrate Judge recommended that the IRS summons be enforced and that Respondent be ordered "to appear at such time and place as may be fixed by Revenue Officer Salinas or any other proper Officer or employee of the IRS and to produce for examining and copying the books, checks, records, papers and other data demanded by the summons." By Order filed March 11, 2009 (Doc. 17), Judge Wanger adopted in full the Magistrate Judge's Findings and Recommendations and directed Respondent to appear at a time and place as may be fixed by the IRS to produce the records demanded by the summons.
In support of their current Petition, Petitioners submitted the declaration of Ms. Salinas (Doc. 27) regarding the efforts of the IRS to obtain Respondent's compliance with the Court's Order. Ms. Salinas' declaration establishes that on March 12, 2009, she sent an appointment letter to Respondent at 3037 E. Belmont, Fresno, California, enclosing a copy of the March 11, 2009 Order, but the letter was returned with the notation "Attempted Not Known" on March 19, 2009. (Doc. 27 at ¶ 3 and Exhibit "A".) On March 30, 2009, Ms. Salinas made a field call to 3037 E. Belmont, Fresno, California, where she learned that Respondent's offices were closed. Ms. Salinas then inquired at a business next door and was informed that Respondent had relocated her offices to 431 N. 1st Street, Fresno, California. (Doc. 27 at ¶ 4.)
On March 30, 2009, Ms. Salinas prepared a second appointment letter and mailed it to Respondent at 431 N. 1st Street, Fresno, California, by regular U.S. Mail and Certified Mail. The letters were returned with the notation "Attempted Not Known." (Doc. 27 at ¶ 5 and Exhibits "B" and "C".) On May 1, 2009, Ms. Salinas prepared two IRS Postal Tracers (Form 4759) inquiring about the status and validity of Respondent's 431 N. 1st Street, Fresno, California address. On May 14, 2009, Ms. Salinas received confirmation from the United States Postal Service that mail is delivered both to Respondent and to her business, Margarita's and Katarina's Taxes, at 431 N. 1st Street, Fresno, California. (Doc. 27 at ¶ 6 and Exhibits "D" and "E".)
On July 20, 2009, Ms. Salinas sent a third appointment letter enclosing a copy of the March 11, 2009 Order to Respondent at 431 N. 1st Street, Fresno, California. Respondent was requested to appear at 9:00 a.m. on July 31, 2009, at the IRS offices located at 2525 Capitol Street, Suite 203, Fresno, California. This letter was not returned, but Respondent did not appear at the appointed time and has not ...