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United States v. Ochoa

United States District Court, Eastern District of California

November 3, 2014

UNITED STATES OF AMERICA, Petitioner,
v.
JOSE OCHOA, Respondent.

Taxpayer: JOSE OCHOA

MAGISTRATE JUDGE’S 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 September 4, 2014. The order, with the verified petition filed August 26, 2014, and its supporting memorandum, was personally served on Respondent’s wife, Francisca Ochoa, at their residence on September 11, 2014. Respondent did not file an opposition or a non-opposition to the verified petition as provided for in the 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 appeared at the hearing with his interpreter, Ruby Garcia.

The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) issued October 31, 2013. The summons is part of an investigation of the respondent to secure information needed to collect Form 1040 federal income taxes for tax years ending December 31, 2006, December 31, 2007, December 31, 2008, and December 31, 2009.

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 documents in support. 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 October 31, 2013, and served upon Respondent’s wife, Francisca Ochoa, [1] on November 1, 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 federal income taxes for tax years ending December 31, 2006, December 31, 2007, December 31, 2008, and December 31, 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, Jose Ochoa, to rebut that ...

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