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United States v. Whitman

June 17, 2010

UNITED STATES OF AMERICA, DAVID PALMER, REVENUE OFFICER AND CHUNG NGO, REVENUE AGENT, INTERNAL REVENUE SERVICE, PETITIONERS,
v.
ROGER P. WHITMAN TAXPAYER: ROGER P. WHITMAN RESPONDENT.



FINDINGS AND RECOMMENDATIONS

This matter came on for hearing on June 9, 2010, on the Order to Show Cause filed April 2, 2010, which, with the verified petition and exhibits, was personally served on respondent in compliance with Fed. R. Civ. P. 4(e) on April 22, 2010. Yoshinori H. T. Himel appeared for petitioners, and petitioning Revenue Officer David Palmer and petitioning Revenue Agent Chung Ngo were present. Respondent did not appear at the hearing. During the hearing, petitioners handed up a copy of an unfiled opposition that respondent served on them.

The Verified Petition to Enforce Internal Revenue Service Summons initiating this proceeding seeks to enforce two administrative summonses (Exhibit A to the petition). The first summons is in aid of Revenue Officer David Palmer's investigation to determine financial information for the collection of assessed U.S. individual income tax liabilities (Form 1040) for the tax years ending December 31, 1997, December 31, 1998, December 31, 1999 and December 31, 2000. The second summons is in aid of Revenue Agent Chung Ngo's investigation to determine the existence and amounts of U.S. individual income tax liabilities (Form 1040) for the taxable years ending December 31, 2001, December 31, 2002, December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, December 31, 2007 and December 31, 2008.

Subject matter jurisdiction is proper under 28 U.S.C. §§ 1340 and 1345. 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).

Based on the petition and the uncontroverted verifications of Revenue Officer Palmer and Revenue Agent Ngo and the entire record, the court makes the following findings:

(1) The summons issued by Revenue Officer David Palmer to respondent, Roger P. Whitman, on October 5, 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 financial information for the collection of assessed U.S. individual income tax liabilities (Form 1040) for the tax years ending December 31, 1997, December 31, 1998, December 31, 1999 and December 31, 2000.

(2) The summons issued by Revenue Agent Chung Ngo to respondent, Roger P. Whitman, on October 12, 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 U.S. individual income tax liabilities (Form 1040) for the taxable years ending December 31, 2001, December 31, 2002, December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, December 31, 2007 and December 31, 2008.

(3) The information sought is relevant to those purposes.

(4) The information sought is not already in the possession of the Internal Revenue Service.

(5) The administrative steps required by the Internal Revenue Code have been followed.

(6) There is no evidence of referral of this case by the Internal Revenue Service to the Department of Justice for criminal prosecution.

(7) The verified petition and its exhibits make a prima facie showing of satisfaction of the requirements set forth in United States v. Powell, supra.

(8) The burden shifted to respondent, Roger P. Whitman, to rebut that prima facie showing.

(9) Respondent presented no proper argument or evidence to rebut the prima facie showing.

(10) Paragraph 7 of the show-cause order filed April 2, 2010, required that opposition be served and filed. Respondent's attempted opposition was dated June 7, 2010. It was served ...


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