United States District Court, E.D. California
June 3, 2014
UNITED STATES OF AMERICA, Petitioner,
RICHARD RODRIGUEZ, Respondent.
BENJAMIN B. WAGNER, United States Attorney, YOSHINORI H. T. HIMEL, #66194 Assistant United States Attorney, Eastern District of California, Sacramento, CA, Attorneys for Petitioner United States of America
FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT
GARY S. AUSTIN, Magistrate Judge.
This matter came before Magistrate Judge Gary S. Austin on May 9, 2014, under the Order to Show Cause filed March 10, 2014. The Order to Show Cause, with the Verified Petition to Enforce I.R.S. Summons filed March 6, 2014 and its supporting memorandum, was personally served upon the respondent, Richard Rodriguez, on March 18, 2014. Respondent did not file a written opposition or a notice of non-opposition to the verified petition as provided for in the Order to Show Cause. Yoshinori H. T. Himel, Assistant United States Attorney, appeared on behalf of Petitioner, and investigating Revenue Officer Lorena Ramos was also present. Respondent did not appear at the scheduled hearing.
The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) issued May 28, 2013. The summons is part of an investigation of the respondent to secure information needed to collect Form 1040 assessed federal income taxes for the tax year ending December 31, 2007, and civil penalties for the quarterly tax periods ending June 30, 2008, September 30, 2008, December 31, 2008, March 31, 2009, June 30, 2009, September 30, 2009, December 31, 2009, March 31, 2010, June 30, 2010, September 30, 2010, December 31, 2010, March 31, 2011, June 30, 2011, and September 30, 2011.
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).
The Court has reviewed the petition and supporting documents. Based on the uncontroverted verified petition by Revenue Officer Lorena Ramos and the entire record, the Court makes the following findings:
(1) The summons issued by Revenue Officer Lorena Ramos on May 28, 2013, and served upon respondent, Richard Rodriguez, on May 28, 2013, 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 secure information needed to collect Form 1040 assessed federal income taxes for the tax year ending December 31, 2007, and civil penalties for the quarterly tax periods ending June 30, 2008, September 30, 2008, December 31, 2008, March 31, 2009, June 30, 2009, September 30, 2009, December 31, 2009, March 31, 2010, June 30, 2010, September 30, 2010, December 31, 2010, March 31, 2011, June 30, 2011, and September 30, 2011.
(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. Findings and Recommendations Re: I.R.S. Summons 2 Enforcement; Order
(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 in satisfaction of the requirements of United States v. Powell , 379 U.S. 48, 57-58 (1964).
(7) The burden shifted to respondent, Richard Rodriguez, 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 served upon Respondent, Richard Rodriguez, be enforced, and that Respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California, before Revenue Officer Lorena Ramos or her designated representative, on the twenty-first (21st) 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 Ramos, 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. It is further recommended that if it enforces the summons, the District Court should retain jurisdiction to enforce its order by means of its contempt power.
These findings and recommendations are submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of this Court. 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 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 further orders by mail to Richard Rodriguez, 7233 W. Browning, Fresno, California 93723.
IT IS SO ORDERED.