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United States v. Whitman

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


July 14, 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.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

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

The United States, Revenue Officer David Palmer and Revenue Agent Chung Ngo, here petition for enforcement of two I.R.S. summonses. The matter was placed before United States Magistrate Judge Kimberly J. Mueller under 28 U.S.C. § 636 et seq. and Local Rule 73-302. On April 2, 2010, Judge Mueller issued an Order to Show Cause, ordering the respondent, Roger P. Whitman, to show cause why the I.R.S. summonses issued to him on October 5, 2009, and October 12, 2009, should not be enforced. The Petition, Points and Authorities, and Order to Show Cause were personally served upon the respondent. Respondent did not file an opposition to enforcement under paragraph on page 3 of the Order to Show Cause, but sent an untimely response, via the Government, requesting that the hearing be moved to North Carolina where he is currently staying.

The Magistrate Judge did not address this request because the document was not filed with the Court and is consequently not a part of the court's record.

Judge Mueller presided at the show-cause hearing on June 9, 2010. Petitioners appeared; respondent failed to appear. On June 18, 2010, Judge Mueller filed Findings and Recommendations, finding that the requirements for summons enforcement had been satisfied and recommending that the summonses be enforced. Respondent again failed to file objections with the Court, but did mail his objections to the U.S. Attorney's Office. The government filed a reply to the objections and attached the objections for this Court's use.

The thrust of respondent's objections to the Magistrate Judge's Findings and Recommendations is for the I.R.S. to be reasonable when setting the place of the meeting for compliance with the summons and with this order under 26 U.S.C. § 7605. Petitioners' reply states that they are willing to conduct the meeting via videoconference between the U.S. Attorney's Office in Sacramento, California and the U.S. Attorney's Office in Asheville, North Carolina, which is only 34 miles from Brevard, North Carolina, where respondent is staying. Petitioners make their willingness conditional upon respondent's providing copies of the summoned documents to the I.R.S. before the videoconference as specified in an appointment letter. I find that the plan as stated by petitioners is reasonable.

I have reviewed the entire record de novo under 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304. I am satisfied that the Magistrate Judge's findings and recommendations are supported by the record and by proper analysis, and that the requested summons enforcement should be granted. Accordingly, it is hereby ORDERED as follows:

1. The Magistrate Judge's Findings and Recommendations Re: I.R.S. Summons Enforcement, filed June 18, 2010, are ADOPTED IN FULL.

2. The I.R.S. summonses issued to respondent, ROGER P. WHITMAN, are ENFORCED.

3. Respondent, ROGER P. WHITMAN, is ORDERED to provide copies of the books, checks, records, papers and other data demanded by the summonses, to Revenue Officer David Palmer and Revenue Agent Chung Ngo at their offices in California, to arrive one week before the day set for the videoconference, and to bring a copy with him to the videoconference in Asheville, North Carolina. The street addresses are:

Revenue Officer David Palmer Internal Revenue Service 1301 Clay Street Suite 1040 South Oakland, CA 94612 Revenue Agent Chung Ngo Internal Revenue Service 777 Sonoma Avenue Room 112 Santa Rosa, CA 95404

4. Respondent, ROGER P. WHITMAN, is ORDERED to appear at the U.S. Attorney's Office for the Western District of North Carolina, located in Room 233, U.S. Courthouse, 100 Otis Street, Asheville, North Caroline, 28801, to appear via videoconference before Revenue Officer David Palmer and Revenue Agent Chung Ngo, or their designated representatives, 21 days after of the issuance of this order, or at an alternate time and date to be set by Revenue Officer Palmer and Revenue Agent Ngo, then and there to be sworn and to give testimony, the examination to continue from day to day until completed.

It is SO ORDERED.

20100714

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