United States District Court, N.D. California, San Francisco Division
United States of America, Plaintiff, Pro se, San Francisco, CA USA.
ORDER FOR REASSIGNMENT WITH REPORT AND RECOMMENDATION RE ENFORCEMENT OF INTERNAL REVENUE SERVICE SUMMONS
NATHANAEL M. COUSINS, United States Magistrate Judge.
Petitioner, the United States of America, seeks enforcement of an Internal Revenue Service Summons against Respondent, Anchi Aggarwal. Revenue Officer Ava Pointer is attempting to conduct an investigation into the collection of Khana Peena Indian Cuisine's Form 941 tax liabilities for the quarterly periods ending September 30, 2012, September 30, 2013, and December 31, 2013, and Form 1065 partnership income for the calendar periods ending December 31, 2010, December 31, 2011, and December 31, 2012. Verified Petition, ¶ 3. On May 20, 2104, Revenue Office Pointer served a Summons upon Respondent by leaving an attested copy taped to the entrance door of the last and usual place of abode of Respondent. Id. at ¶ 6. The Summons required Respondent to appear before Revenue Officer Pointer on June 6, 2014, to give testimony and to bring for examination certain documents and records relating to Khana Peena Indian Cuisine. Id. at Exhibit A. Respondent did not appear on June 6, 2014 as required in the Summons. Id. at ¶ 8. By letter dated June 27, 2014, Respondent was provided a second opportunity to comply with the Summons and appear before Revenue Officer Pointer on July 25, 2014. Id. at ¶ 9 and Exhibit B. Respondent failed to appear on July 25, 2014 or otherwise comply. Id. at ¶ 10. Because the respondent has not consented to the jurisdiction of a magistrate judge, the Court refers this case for reassignment to a district court judge.
On September 4, 2014, Petitioner filed a Verified Petition to Enforce Internal Revenue Service Summons against Respondent, requesting that the Court order Respondent to appear before Revenue Officer Pointer to give testimony and produce items requested in the Summons, at a time and place directed by the Court. Id. at ¶ ¶ A-B. Petitioner also requested that the Court grant its costs in this proceeding, as well as any other relief that may be necessary and proper. Id. at ¶ C.
On September 15, 2014, this Court issued an Order to Show Cause (" OSC") why the Summons should not be enforced, and a hearing was set for November 12, 2014. See Order to Show Cause. On September 19, 2014, Revenue Officer Pointer served the OSC on Respondent's daughter-in-law, Neetu Aggarwal, at Respondent's last and usual place of abode. Declaration of Ava Pointer, ¶ 2. Following this service, also on September 19, 2014, Respondent called Revenue Officer Pointer and acknowledged receipt of the OSC. Id. at ¶ 3. During this call, Revenue Officer Pointer made an appointment with Respondent for her to provide the summonsed records on September 23, 2014. Id.
On September 23, 2014, Respondent and her son, Deepak Aggarwal, appeared before Revenue Officer Pointer. Id. at ¶ 4. Respondent and her son told Revenue Officer Pointer how many people they employed at their restaurant, Khana Peena Indian Cuisine, as well as the balance due for the restaurant's June 2014 Form 941 tax return. Id. Respondent and her son, however, did not provide any further information, documents, or records to comply with the summons. Id. At the end of this meeting, Revenue Officer Pointer requested that Respondent provide the summonsed records by October 17, 2014. Id.
On October 17, 2014, Respondent e-faxed documents to Revenue Officer Pointer, but the information was insufficient to satisfy the summons. Id. at ¶ 5. For example, Respondent provided Forms 433-A and 433-B for Khana Peena Indian Cuisine, but both forms were incomplete. Id. Respondent did not list any income or provide verification of business expenses, and thus was not in compliance with the summons. Id.
On October 21, 2014, Respondent's niece called Revenue Officer Pointer but no documents or records were submitted. Id. at ¶ 6. On October 28, 2014, Respondent, her niece, and her son, Deepak, called Revenue Officer Pointer. Id. at ¶ 7. During this call, Revenue Officer Pointer requested that Respondent provide the summonsed records by October 31, 2014. Id. Revenue Officer Pointer has not heard from Respondent since the October 28, 2014 phone call. Id. at ¶ 8. Currently, Respondent has not fully complied with the summons. Id. at ¶ 9.
At the hearing on November 12, 2014, Thomas Moore and Emily Rossi appeared for the United States. Respondent did not file any opposition, and did not appear in response to the OSC.
Respondent has not consented to the jurisdiction of a U.S. Magistrate judge, so under 28 U.S.C. § 636 and Local Civil Rule 72, this Order is in the form of a report and recommendation to the District Court. Any party must serve and file its objection to this Order within fourteen days of being served with a copy of this Order. For the reasons stated below, IT IS HEREBY RECOMMENDED that Petitioner's Summons be enforced.
A. Validity of Summons