United States District Court, E.D. California
November 19, 2014
UNITED STATES OF AMERICA, Petitioner,
ALMA D. SANDERS, Respondent.
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. Respondent is hereby ordered to make that document production and that telephonic appearance.
The Court therefore recommends that the IRS summons served upon Respondent be enforced; and that Respondent be ordered to comply with the summons by producing 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., as agreed to by RO Moses and Respondent Sanders at the show cause hearing, then and there to be sworn, to give testimony, and to produce for examining and copying the books, checks, records, paper and other data demanded by the summons, the examination to continue from day to day until completed. Should the December 10th telephonic appearance need to be continued or rescheduled, the appearance is to be set in writing for a later date by RO Moses. The Court further recommends 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 (10) 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 and further orders by mail to Alma D. Sanders, 6356 N. Palm Avenue, Fresno, CA 93704-1440.
IT IS SO ORDERED.