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United States of America and v. Walter Antonio

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


January 21, 2011

UNITED STATES OF AMERICA AND
R. L. WILLETT, REVENUE OFFICER, INTERNAL REVENUE SERVICE,
PETITIONERS,
v.
WALTER ANTONIO, JR., MEMBER OF "IUCG SUNSHINE DESIGNS LLC" RESPONDENT.

The opinion of the court was delivered by: Judge: Hon. Kendall J. Newman

ORDER TO SHOW CAUSE RE: TAX SUMMONS ENFORCEMENT

Taxpayer: WALTER ANTONIO, JR., and WALTER ANTONIO, JR.,

Date: Thursday, March 17, 2011 Time: 10:00 a.m.

Ctrm: #25 (8th Floor)

Upon the petition of BENJAMIN B. WAGNER, United States Attorney for the Eastern District of California, with the verification of Revenue R. L. WILLETT, and the Exhibit attached thereto, IT IS HEREBY ORDERED that:

Respondent, WALTER ANTONIO, JR., shall appear before United States Magistrate Judge Kendall J. Newman, in Courtroom 25 in the United States Courthouse, 501 I Street, Sacramento, California, on Thursday, March 17, 2011, at 10:00 a.m., to show cause why respondent should not be compelled to obey the Internal Revenue Service summonses issued on May 27, 2010.

It is FURTHER ORDERED that:

1. The United States Magistrate Judge will preside at the hearing scheduled above, pursuant to 28 U.S.C. § 636(b)(1) and Eastern District Local Rule 302(c)(9). Following the hearing, the Magistrate Judge intends to submit proposed findings and recommendations pursuant to Local Rule 304(a), with the original thereof filed by the Clerk of Court and a copy provided to all parties.

2. The Court hereby appoints the group manager of the petitioning Internal Revenue Service employee, and all federal employees designated by that group manager, under Federal Rule of Civil Procedure 4(c)(1), to serve process in this case.

3. A copy of this Order to Show Cause, the Verified Petition and its Exhibits, and the Points and Authorities on file with the court, shall be served by delivering a copy to the respondent personally or by leaving a copy at the respondent's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, within 21 days of the date this order is served upon the United States Attorney, unless such service cannot be made despite reasonable efforts.

4. If the federal employee assigned to serve these documents is unable to serve them as provided in paragraph 3, despite making reasonable efforts to do so, the documents may be served by any other means of service permitted by Federal Rule of Civil Procedure 4(e), or petitioners may request a court order granting leave to serve by other means. See Fed. R. Civ. P. 81(a)(5). The federal employee assigned to serve the documents shall make a certificate detailing the efforts made within the 21-day period to serve the respondent as provided in paragraph 3.

5. Proof of any service done pursuant to paragraph 3 or 4, above, shall be filed with the Clerk of this Court at least 14 days prior to the date set for the show cause hearing.

6. The file reflects a prima facie showing that the investigation is conducted pursuant to a legitimate purpose, that the inquiry may be relevant to that purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed. United States v. Powell, 379 U.S. 48, 57-58 (1964). The burden of coming forward therefore has shifted to whoever might oppose enforcement. See Stewart v. United States, 511 F.3d 1251, 1255 (9th Cir. 2008) (stating that "[o]nce a prima facie case is made a 'heavy' burden is placed on the taxpayer to show an 'abuse of process' or 'the lack of institutional good faith'") (citing Fortney v. United States, 59 F.3d 117, 210 (9th Cir. 1995)).

7. If respondent has any defense or opposition to the petition, such defense or opposition shall be made in writing and filed with the Clerk and a copy served on the United States Attorney at least 14 calendar days before the date set for the show-cause hearing.

8. At the show-cause hearing, the Magistrate Judge intends to consider the issues properly raised in opposition to enforcement. Only those issues brought into controversy by the responsive pleadings and supported by affidavit will be considered. Any uncontested allegation in the petition will be considered admitted.

9. The respondent may notify the Court, in a writing filed with the Clerk and served on the United States Attorney no later than 14 calendar days before the date set for the show-cause hearing, that the respondent has no objections to enforcement of the summons. The respondent's appearance at the hearing will then be excused.

KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

20110121

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