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United States of America v. Oralia Maya

July 31, 2012

UNITED STATES OF AMERICA, PETITIONER,
v.
ORALIA MAYA, RESPONDENT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT AND ORDER TAXPAYER: ORALIA MAYA

This matter came before Magistrate Judge Dennis L. Beck, on July 20, 2012, under the Order to Show Cause filed May 10, 2012, which, with the verified petition and memorandum, was personally served upon the respondent, Oralia Maya, on May 30, 2012. Respondent did not file written opposition. Yoshinori H. T. Himel, Assistant United States Attorney, appeared for petitioners; investigating Revenue Officer Lisa R. Cumiford was present. Respondent appeared for herself. She did not oppose the enforcement of the I.R.S. summons, and she agreed to appear and comply on August 1, 2012, at 9:30 a.m., at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721-2227.

The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons, Exhibit A to the petition. The summons seeks information to aid Revenue Officer Cumiford's investigation to determine financial information for the collection of assessed Form 940 Employer Annual Federal Unemployment Tax for the period ending December 31, 2007 and Form 943 Employer's Annual Tax for Agricultural Employees for the taxable periods ending December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009 and December 31, 2010.

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 the petition by Revenue Officer Cumiford and the entire record, I make the following findings:

(1) The summons issued by Revenue Officer Lisa R. Cumiford on August 10, 2011, and served upon respondent, Oralia Maya, on August 10, 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 financial information for the collection of assessed Form 940 Employer Annual Federal Unemployment Tax for the period ending December 31, 2007 and Form 943 Employer's Annual Tax for Agricultural Employees for the taxable periods ending December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009 and December 31, 2010.

(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, Oralia Maya, to rebut that prima facie showing.

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

I therefore recommend that the IRS summons served upon respondent, Oralia Maya, be enforced, and that respondent be ordered to appear, on the twenty-first (21) day after the filing date of the District Judge's summons enforcement order, or at a later date to be set in writing by Revenue Officer Cumiford, at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721-2227, before Revenue Officer Cumiford or her designated representative, 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 ...


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