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United States of America v. Nathan D. Bacon

November 23, 2011

UNITED STATES OF AMERICA,
PETITIONER,
v.
NATHAN D. BACON,
RESPONDENT.



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

MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT TAXPAYER: NATHAN D. BACON

This matter came before me on November 16, 2011, under the Order to Show Cause filed August 2, 2011, which, with the verified petition and memorandum, was personally served upon respondent on September 15, 2011. Respondent did not file written opposition.

At the hearing, Yoshinori H. T. Himel appeared telephonically for petitioner, and investigating Revenue Officer Michael Nicholas was present. Respondent 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 Nicholas' investigation of Nathan D. Bacon to determine his correct liabilities for personal income tax for the tax years ending December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2009.

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 Nicholas and the entire record, I make the following findings:

(1) The summons issued by Revenue Officer Martha Rodriguez to respondent, Nathan D. Bacon, on January 7, 2011, 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 his correct liabilities for personal income tax for the tax years ending December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 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, Nathan D. Bacon, to rebut that ...


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