UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 29, 2011
UNITED STATES OF AMERICA, PETITIONER,
SHARRON NISBETT, RESPONDENT,
The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT TAXPAYER: SHARRON NISBETT
This matter came before this Court on November 18, 2011, under the Amended Order to Show Cause filed September 27, 2011, which, with the verified petition and memorandum, was personally served upon respondent on October 11, 2011. Yoshinori H. T. Himel appeared for petitioners, and investigating Revenue Agent Elaine Moore was present. Respondent appeared and partially complied with the 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 Agent Moore's investigation of Sharron Nisbett to determine the existence and amount of personal income tax liability (Form 1040) for the tax year ending 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).
The Court has reviewed the petition and documents in support. Based on the uncontroverted verification of Revenue Agent Moore and the entire record, the Court makes the following findings:
(1) The summons issued by Revenue Agent Elaine Moore to respondent, Sharron Nisbett, on June 30, 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 the existence and amount of personal income tax liability (Form 1040) for the tax year ending 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, Sharron Nisbett, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing. The Court therefore recommends that the IRS summons issued to respondent, Sharron Nisbett, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 203, Fresno, California 93721, before Revenue Agent Elaine Moore, or her designated representative, within twenty-one (21) days after the filing of the summons enforcement order, or at a later date to be set in writing by Revenue Agent Moore, 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. The Court further recommends 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 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 Ms. Sharron Nisbett, 2994 Holly Avenue, Clovis, California 93611.
IT IS SO ORDERED.
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