The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DISCHARGING ORDER TO SHOW CAUSE FINDINGS AND RECOMMENDATIONS REGARDING PETITION TO ENFORCE IRS SUMMONS (Documents 1 & 4)
Petitioners are proceeding with a civil action in this Court. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b) and Local Rules 302(9) and 303. Pending before the Court is a petition to enforce a summons issued by the Internal Revenue Service (IRS) to Respondent.
The petition came on regularly for hearing on May 27, 2011, in Courtroom 10 before the Honorable Gary S. Austin, United States Magistrate Judge. Glen F. Dorgan appeared on behalf of Petitioners, and Janice Polglase, specially appearing for Henry D. Nunez, appeared on behalf of Respondent Sonia Gomez, whom was also personally present.
The Court has reviewed the petition, all supporting papers, and all papers submitted by Respondent. The matter was submitted to the Court for preparation of findings and recommendations.
Discharging Order to Show Cause
Respondent having appeared pursuant to the order to show cause, it IS ORDERED that the order to show cause BE DISCHARGED.
Petition to Enforce IRS Summons
Agent Lorena Ramos is a duly commissioned revenue officer employed by the IRS, and she is authorized to issue the IRS summons pursuant to Title 26 of the United States Code section 7602; she did so in the course of conducting an investigation of the tax liabilities of Respondent for the tax years 2002 through 2005. (Doc. 1 at ¶¶ 3 & 5.) Ramos believes "Respondent is in possession and control of the testimony, books, records, papers, and other data that may shed light on" these matters. (Doc. 1 at ¶ 6, see also ¶ 14.) Ramos issued an IRS summons on January 6, 2010, directing Respondent to appear before her on February 10, 2010, to provide testimony and documents relating to the investigation. (Doc. 1 at ¶ 7.) She left an attested copy of the summons at Respondent's last and usual place of abode on January 12, 2010, at 3:30 p.m. (Doc. 1 at ¶ 8.) Respondent failed to appear. (Doc. 1 at ¶ 10.)
An order to show cause issued on March 1, 2011, and was served on Respondent on March 9, 2011; it directed Respondent to appear and to file a written response. Following a single continuance of the original hearing date, Respondent filed a Declaration on May 23, 2011. (Doc. 7.)
B. The Merits of the Petition
At the hearing, Petitioners stated that although Respondent's Declaration indicates she has no responsive documents as requested in the summons, Petitioners require Respondent's testimony; thus, Petitioners requested enforcement of the summons. Respondent did not argue otherwise or object. The parties consulted with regard to dates upon which Respondent would appear at the IRS office in order to provide testimony. In light of the foregoing, the Court considers the merits of the petition.
The IRS is authorized to examine papers or data which may be relevant or material in determining the correctness of a tax return, the liability of any person for any internal revenue tax, or collecting any such liability. 26 U.S.C. § 7602(a)(1). It is also authorized to take such testimony as may be relevant or material. 26 U.S.C. § 7602(a)(3). Moreover, it has the authority to issue summonses for the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax, or collecting any such liability. 26 U.S.C. § 7602(a); Crystal v. United States, 172 F.3d 1141, 1143 (9th Cir. 1999).
To defeat a motion to quash, or in order to enforce an IRS summons, the government has the initial burden of proving that the summons: (1) is issued for a legitimate purpose; (2) seeks information relevant to the purpose; (3) seeks information not already within the IRS's possession; and (4) satisfies all of the administrative steps required by the Internal Revenue Code. United States v. Powell, 379 U.S. 48, 57-58 (1964); Crystal v. United States, 172 F.3d at 1143-44. The government's burden is a slight one that may be satisfied by a declaration from the investigating agent that these requirements have been met. United States v. Abrahams, 905 F.2d 1276, 1280 (9th Cir. 1990); Liberty Financial Servs. v. United States, 778 F.2d 1390, 1392 (9th Cir. 1985). Once the prima facie case is made, a heavy burden falls upon the taxpayer to show an abuse of process (Abrahams, 905 ...