United States District Court, Eastern District of California
November 3, 2014
UNITED STATES OF AMERICA, Petitioner,
GREGORY FRANKS, Respondent.
Taxpayer: GREGORY FRANKS
FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT
SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE
This matter came on before Magistrate Judge Sheila K. Oberto on October 22, 2014, under the Order to Show Cause filed March 4, 2014, as modified by subsequent orders including the Order Resetting Show Cause Hearing filed September 15, 2014. Although petitioner could not serve process personally upon respondent, in an Order Granting Motion to Permit Alternate Process Service filed July 21, 2014, alternate service methods were permitted and it was found that respondent had actual knowledge of the proceeding.
Petitioner thereafter served process in compliance with the Order filed September 15, 2014; see Certificate of Service filed September 17, 2014. Accordingly, respondent was adequately served with process. Respondent did not file opposition or non-opposition to the verified petition as provided for in the Order Resetting Show Cause Hearing and Order to Show Cause.
At the hearing, Yoshinori H. T. Himel, Assistant United States Attorney, appeared on behalf of Petitioner, and investigating Revenue Officer Michael J. Papasergia also was present in the courtroom. Respondent did not appear at the hearing.
The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) issued July 18, 2013. The summons is part of an investigation of the respondent to secure information needed to collect assessed Form 1040 federal income taxes for the tax years ending December 31, 2003, December 31, 2004, and December 31, 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).
Based on the uncontroverted verified petition by Revenue Officer Michael J. Papasergia and the entire record, the Court makes the following findings:
(1) The summons issued by Revenue Officer Michael J. Papasergia on July 18, 2013, and served upon respondent, Gregory Franks, on July 19, 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 assessed Form 1040 federal income taxes for the tax years ending December 31, 2003, December 31, 2004, and December 31, 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.
(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, Gregory Franks, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing.
It is, therefore, recommended that the IRS summons served upon Respondent, Gregory Franks, be enforced, and that Respondent be ordered to appear at the I.R.S. offices at 4825 Coffee Road, Bakersfield, California 93308, before Revenue Officer Papasergia or his 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 Papasergia, 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 recommend 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, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72-304 of the Local Rules of the United States District Court for the Eastern District of California. 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 order and further orders by mail to Gregory Franks, 6131 Mills Drive, Bakersfield, California 93306.
IT IS SO ORDERED.