IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 3, 2010
UNITED STATES OF AMERICA, AND CLIFFORD BROWN, REVENUE OFFICER, INTERNAL REVENUE SERVICE, PETITIONERS,
STANLEY J. JENKINS, RESPONDENT.
ORDER AND FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT Taxpayer: STANLEY J. JENKINS
This matter came on for hearing on May 5, 2010, under the Order to Show Cause filed February 18, 2010. That order, with the verified petition and exhibits, was served on respondent in conformity with Fed. R. Civ. P. 4(e) on April 13, 2010. Yoshinori H. T. Himel appeared for petitioners, and petitioning Revenue Officer Clifford Brown was present. Respondent, who did not file an opposition, appeared at the hearing.
The Verified Petition to Enforce Internal Revenue Service Summons initiating this proceeding seeks to enforce an administrative summons, filed as Exhibit A to the petition, in aid of Revenue Officer Brown's investigation of Stanley Jenkins, to determine the taxpayer's ability to collect assessed Employer's Federal Quarterly Tax for the periods ending June 30, 2007, March 31, 2008, June 30, 2008, and September 30, 2008, for Eden Lawn Care and Maintenance, a sole proprietorship. Petitioners properly invoke subject matter jurisdiction under 28 U.S.C. §§ 1340 and 1345. The action is authorized 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).
Based on the uncontroverted verification of Revenue Officer Brown and the entire record, the court makes the following findings:
(1) The summons issued by Revenue Officer Clifford Brown to respondent, Stanley Jenkins, on May 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 taxpayer's ability to collect assessed Employer's Federal Quarterly Tax for the periods ending June 30, 2007, March 31, 2008, June 30, 2008, and September 30, 2008, for Eden Lawn Care and Maintenance, a sole proprietorship.
(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 make a prima facie showing of satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
(7) The burden thus has shifted to respondent, Stanley Flores, to rebut that prima facie showing.
(8) Respondent has presented no argument or evidence to rebut the prima facie showing, and in fact indicated at hearing that he did not oppose enforcement.
Accordingly, IT IS HEREBY RECOMMENDED that the IRS summons issued to respondent, Stanley Jenkins, be enforced, and that respondent be ordered to appear at the I.R.S. Fairfield office at 4830 Business Center Drive, Suite 250, Fairfield, California 94534, before Revenue Officer Clifford Brown, or his designated representative, on Thursday, May 27, 2010, at 2:00 p.m., 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. It is further recommended that if it enforces the summons, the court retain jurisdiction to enforce its order by its contempt power.
IT IS HEREBY ORDERED that the Clerk shall serve this order and future orders on Mr. Stanley Jenkins, 824 Brookwood Avenue, Vallejo, California 94591.
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 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).
nunc pro tunc to May 5, 2010.
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