United States District Court, E.D. California
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT
SHEILA K. OBERTO, Magistrate Judge.
This matter came on before Magistrate Judge Sheila K. Oberto on November 5, 2014, pursuant to the Order to Show Cause filed September 29, 2014. The Order, with the verified petition filed September 15, 2014, and its supporting memorandum, was personally served on Respondent by delivery to her adult son at their residence on October 3, 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, Bobbie Montoya, Assistant United States Attorney, appeared telephonically for Petitioner on behalf of Yoshinori H.T. Himel, Assistant United States Attorney, and investigating Revenue Officer Evan D. Moses was present in the courtroom. Respondent appeared at the hearing and was accompanied by Dwayne Sanders.
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 collect Form 1040 federal income taxes for tax years ending December 31, 2001, December 31, 2002, December 31, 2004, December 31, 2005, December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, 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).
The Court has reviewed the petition and documents in support. Based on the uncontroverted verified petition by Revenue Officer Evan D. Moses and the entire record, the Court makes the following findings:
(1) The summons issued by Revenue Officer Evan D. Moses on March 13, 2014, and served on March 14, 2014, 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 federal income taxes (Form 1040) for tax years ending December 31, 2001, December 31, 2002, December 31, 2004, December 31, 2005, December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, 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, Alma D. Sanders, 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 her agreement in open court, to produce the documentary information sought in the summons to RO Moses on or before December 3, 2014, and to appear by telephone on December 10, 2014, at 11:00 a.m., by calling the direct line of RO Moses (XXX-XXX-XXXX), or his designated representative. ...