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United States of America v. Summons Enforcement John A. Rolff

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 26, 2011

UNITED STATES OF AMERICA,
PETITIONER,
v.
SUMMONS ENFORCEMENT JOHN A. ROLFF,
RESPONDENT.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney United States Courthouse 2500 Tulare Street, Suite 4401 Fresno, California 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Attorneys for Petitioner United States of Americ1

MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S.

This matter came before me on May 13, 2011, under the Order to Show Cause filed March 29, 2011, which, with the verified petition and memorandum, was personally served upon respondent on April 5, 2011. Yoshinori H. T. Himel appeared for petitioners, and petitioning Revenue Officer Lorena Ramos was present. Respondent did not file an opposition and did not appear.

The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) in aid of Revenue Officer Ramos' investigation of John A. Rolff, as sole proprietor of Sierra Automotive, to determine financial information to collect assessed Employer's Annual Federal Unemployment Tax (Form 940) for the tax years ending December 31, 2006, December 31, 2007, and December 31, 2008; and Employer's Federal Quarterly Tax (Form 941) for the tax periods ending June 30, 2007, September 30, 2007, December 31, 2007, March 31, 2008, June 30, 2008, September 30, 2008, December 31, 2008, March 31, 2009, June 30, 2009, and September 30, 2009.

Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be proper. 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).

I have reviewed the petition and documents in support. Based on the uncontroverted verification of Revenue Officer Ramos and the entire record, I make the following findings:

(1) The summons issued by Revenue Officer Lorena Ramos to respondent, John A. Rolff, on April 13, 2010, 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 to collect assessed Employer's Annual Federal Unemployment Tax (Form 940) for the tax years ending December 31, 2006, December 31, 2007, and December 31, 2008; and Employer's Federal Quarterly Tax (Form 941) for the tax periods ending June 30, 2007, September 30, 2007, December 31, 2007, March 31, 2008, June 30, 2008, September 30, 2008, December 31, 2008, March 31, 2009, June 30, 2009, and September 30, 2009.

(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 made a prima facie showing of satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).

(7) The burden shifted to respondent, John A. Rolff, to rebut that prima facie showing. (8) Respondent presented no argument or evidence to rebut the prima facie showing.

I therefore recommend that the IRS summons issued to respondent, John A. Rolff, as sole proprietor of Sierra Automotive, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721, before Revenue Officer Lorena Ramos, or her designated representative, twenty-one (21) days after the filing of the summons enforcement order, or at a later date to be set in writing by Revenue Officer Ramos, 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. I further recommend that if it enforces the summons, the Court retain jurisdiction to enforce its order by its contempt power.

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 District Judge will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). 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).

The Clerk shall serve this and future orders by mail to Mr. John A. Rolff, 40110 Highway 49, Oakhurst, California 93644.

IT IS SO ORDERED.

icido3

20110526

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