United States District Court, E.D. California
November 14, 2014
UNITED STATES OF AMERICA, Petitioner,
MARK DERZON, Respondent.
BENJAMIN B. WAGNER, United States Attorney, YOSHINORI H. T. HIMEL, Assistant United States Attorney, Eastern District of California, Sacramento, CA, Attorneys for Petitioner United States of America.
FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMMONS ENFORCEMENT (Doc. 1)
JENNIFER L. THURSTON, Magistrate Judge.
This matter came on before Magistrate Judge Jennifer L. Thurston on November 5, 2014, under the Order to Show Cause filed September 9, 2014. The order, with the verified petition filed August 28, 2014, and its supporting memorandum, was personally served on Respondent at his professional law office on November 13, 2013. Respondent did not file opposition or non-opposition to the verified petition as provided for in the Order to Show Cause. At the hearing, Alyson A. Berg, Assistant United States Attorney, appeared telephonically for Petitioner on behalf of Yoshinori H.T. Himel, Assistant United States Attorney, and investigating Revenue Officer Michael J. Papasergia was present in the courtroom. Respondent appeared 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 November 26, 2013. The summons is part of an investigation of the respondent to secure information needed to determine the correct federal income taxes and statutory additions for the years ending December 31, 2006, December 31, 2007, December 31, 2009, December 31, 2010, December 31, 2011, and December 31, 2012.
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 petition verified by Revenue Officer Michael J. Papasergia and the entire record, I make the following findings:
(1) The summons issued by Revenue Officer Kathy Ruiz on November 26, 2013, and served on November 26, 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 secure information needed to determine the correct federal individual income taxes and statutory additions for the years ending December 31, 2006, December 31, 2007, December 31, 2009, December 31, 2010, December 31, 2011, and December 31, 2012.
(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, Mark Derzon, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing.
(9) Respondent agreed with the Revenue Officer, and stated his agreement in open court, to appear at the I.R.S. offices at 4825 Coffee Road, Bakersfield, California 93308, before Revenue Officer Papasergia or his designated representative, on November 20, 2014, at 11:00 a.m. He is hereby ordered to make that appearance.
I therefore recommend that the IRS summons served upon Respondent 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 November 20, 2014, at 11:00 a.m., as agreed to by RO Papasergia and Respondent Derzon at the show cause hearing. Should the November 20 appearance need to be continued or rescheduled, the appearance is to be set in writing for a later date by RO Papasergia. Respondent is to appear before RO Papasergia or his 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 continue from day to day until completed. I 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 ten 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 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 Mark Derzon, 5055 California Avenue, Suite 315, Bakersfield, California XXXXX-XXXX.
IT IS SO ORDERED.