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United States of America v. Freddy Viscarra and Taxpayers: Freddy Viscarra Veronica Viscarra

January 19, 2012

UNITED STATES OF AMERICA,
PETITIONER,
v.
FREDDY VISCARRA AND TAXPAYERS: FREDDY VISCARRA VERONICA VISCARRA, AND VERONICA VISCARRA RESPONDENTS.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

AGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT; ORDER

This matter came before me on January 13, 2012, under the Order to Show Cause filed December 1, 2011 (Doc. 4), and on petitioner's motion to permit alternate process service, filed December 16, 2011. (Doc. 5.) Respondents did not file written opposition to the verified petition filed November 29, 2011, nor did they file opposition to the service motion. Yoshinori H. T. Himel, Assistant United States Attorney, appeared for petitioner, and investigating Revenue Officer David M. Lopez was present. Respondents did not appear.

The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce administrative summonses (Exhibit A to the petition), issued July 12, 2011, to aid Revenue Officer Lopez' investigation of Freddy Viscarra and Veronica Viscarra to

Magistrate Judge's Findings and Recommendations Re: I.R.S. Summons Enforcement; Order determine financial information relevant to the IRS' efforts to collect their Personal Income Tax (Form 1040) for the taxable year ending December 31, 2006.

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).

Petitioner first moves for an order permitting alternate process service. The motion itself was served properly and timely under Local Rule 230(b). The declaration of Revenue Officer Tony Garza reflects that respondents lived in a fenced and gated compound containing three residences. The declaration raises safety issues arising from the presence of two large dogs, and from signage and behavior suggesting that the dogs were a hazard to strangers. Other signage asserted that the dogs' owners wielded firearms and compared that hazard to that of the dogs. A woman at one of the residences, identifying herself as Freddy Viscarra's mother, told Revenue Officer Garza that she owned the compound and lived in that residence, and that the respondents lived in another of the residences, located at the back of the compound. When RO Garza handed the mother envelopes containing the verified petition, the order to show cause and the points and authorities, the mother promised to hand the papers to each respondent personally. Additionally, the proof of service attached to Petitioner's request for an order permitting alternate service of process reflects that another copy of the of the IRS summons was mailed to each Respondent. (Doc. 5, p. 5.) These combined methods underscore the high probability of actual notice.

On the issue of process service, the Court finds as follows:

(1) RO Garza was validly concerned for his own safety should he leave his car to approach respondents' residence to deliver the process directly to them;

(2) The method of service used by petitioner, i.e., personal delivery to respondents' resident landlord who was the mother of one respondent and who promised prompt Magistrate Judge's Findings and Recommendations Re: I.R.S. Summons Enforcement; Order personal delivery to both respondents, was reasonably calculated to give respondents timely actual notice of these proceedings;

(3) The method of process service adopted by petitioner comports with the Due Process Clause in U.S. Const. Amend. V and the purposes of Fed. R. Civ. P. 4(e).

Accordingly, under Fed. R. Civ. P. 81(a)(5) and the Order to Show Cause, the motion to permit alternate process service should be and is GRANTED.

The Court has reviewed the verified petition and the documents in support thereof. On the summons enforcement merits, based on the uncontroverted verification of the petition by Revenue Officer Lopez and the entire record, The Court find as follows:

(1) The summonses issued by Revenue Officer David M. Lopez to respondents, Freddy Viscarra and Veronica Viscarra, on July 12, 2011, seeking testimony and production of documents and records in respondents' possession, was issued in good faith and for a legitimate purpose under I.R.C. § 7602, that is, to determine financial information relevant to the IRS' efforts to collect Personal Income Tax (Form 1040) for the tax year ending December 31, 2006;

(2) The information sought is relevant to that purpose; (3) The information sought is not already in the possession ...


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