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United States of America, Kim Ulring v. Taxpayer: Everett D. Calhoun

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


October 13, 2011

UNITED STATES OF AMERICA, KIM ULRING, REVENUE OFFICER, INTERNAL REVENUE SERVICE
PETITIONERS,
v.
TAXPAYER: EVERETT D. CALHOUN EVERETT D. CALHOUN,
RESPONDENT.

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

This matter came before me on September 30, 2011, under the Order to Show Cause filed August 2, 2011, which, with the verified petition and memorandum, was sufficiently served upon respondent, Mr. Everett D. Calhoun, under Fed. R. Civ. P. 4(e), on August 18, 2011. Respondent did not file written opposition.

At the hearing, Yoshinori H. T. Himel appeared for petitioner, and petitioning Revenue Officer Kim Ulring was present. Respondent appeared in person and brought with him what the Revenue Officer accepted as partial compliance with the IRS summons. The parties, in open court, expressed their agreement to meet on Wednesday, October 5, 2011, at 3:00 p.m., at the Sacramento IRS office, for respondent to continue complying with the IRS summons.

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 Ulring's investigation of Everett D. Calhoun, to determine the existence and amounts of U.S. individual income tax liabilities for the taxable years ending December 31, 2000, December 31, 2001, December 31, 2003, and December 31, 2004.

Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the action. 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 Ulring and the entire record, I make the following findings:

(1) The summons issued by Revenue Officer Kim Ulring to respondent, Everett D. Calhoun, on April 20, 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 obtain information to determine the existence and amounts of U.S. individual income tax liabilities for the taxable years ending December 31, 2000, December 31, 2001, December 31, 2003, and December 31, 2004.

(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 therefore shifted to respondent, Everett D. Calhoun, to rebut that prima facie showing.

(8) Respondent has presented no argument or evidence to rebut the prima facie showing.

I therefore recommend that the IRS summons issued to respondent, Everett D. Calhoun, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 4330 Watt Avenue, Sacramento, California 95821, before Revenue Officer Kim Ulring, or her designated representative, within 10 days of this issuance of the summons enforcement order, 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 under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of the United States District Court for the Eastern District of California. Within fourteen (14) 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 seven (7) days after service of the objections. The assigned 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).

20111013

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