United States District Court, E.D. California
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS
AND ORDER RE: IRS SUMMMONS ENFORCEMENT
P. GROSJEAN, Magistrate Judge.
matter came on before U.S. Magistrate Judge Erica P. Grosjean
on May 19, 2016, under the Order to Show Cause filed March
25, 2016, Doc. #4, and Minute Order filed April 20, 2016,
Doc. #6. The order, with the verified petition filed March
22, 2016, and its supporting memorandum, was personally
served on Respondent by personally handing the documents to
him at 1402 California Avenue, Dos Palos, California, see
Doc. #5; the minute order was likewise served on Respondent,
see Doc. #7. Respondent did not file an opposition or
non-opposition to the verified petition as provided for in
the Order to Show Cause. At the hearing on May 19, 2016,
Bobbie J. Montoya, Assistant United States Attorney, appeared
for Petitioner, and investigating Revenue Officer (RO) Tony
Garza was present in the courtroom. Respondent also
Verified Petition to Enforce IRS Summons initiating this
proceeding, Doc. #1, seeks to enforce an administrative
summons (Exhibit A to the petition) issued September 3, 2015.
The summons is part of an investigation of the Respondent to
secure information needed to collect the following assessed
federal income tax Form 940 for the calendar period ending
December 31, 2014, and Form 941 for the quarterly periods
ending March 31, 2010, December 31, 2010, March 31, 2011,
June 30, 2011, September 30, 2011, December 31, 2011,
September 30, 2012, December 31, 2012, March 31, 2013, June
30, 2013, September 30, 2013, December 31, 2013 and June 30,
Court has reviewed the petition and the supporting
documentation. Based on the uncontroverted petition verified
by RO Garza and the entire record, the Court makes the
summons issued by RO Garza on September 3, 2015, and served
on September 3, 2015, 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. Â§ 7602, that is, to secure information needed to
collect the following assessed federal income tax Form 940
for the calendar period ending December 31, 2014, and Form
941 for the quarterly periods ending March 31, 2010, December
31, 2010, March 31, 2011, June 30, 2011, September 30, 2011,
December 31, 2011, September 30, 2012, December 31, 2012,
March 31, 2013, June 30, 2013, September 30, 2013, December
31, 2013 and June 30, 2014.
information sought is relevant to that purpose.
information sought is not already in the possession of the
Internal Revenue Service.
administrative steps required by the Internal Revenue Code
have been followed.
There is no evidence of referral of this case by the Internal
Revenue Service to the Department of Justice for criminal
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).
burden shifted to Respondent, Stuart R. Schofield, DMD, to
rebut that prima facie showing.
Although the Respondent indicated that he thought he had
complied with the summons and also demonstrated a willingness
to cooperate with RO Garza by bringing additional paperwork
to the hearing, he did not rebut the prima facie showing.
Moreover, the documents he produced were insufficient to be
in compliance with the summons. See Declaration of Bobbie J.
Montoya, Doc. #10, at Â¶ 4. After engaging in a meet and
confer, Respondent agreed to produce the outstanding
documentary information sought in the summons to RO Garza by
no later than June 9, 2016, at the Internal Revenue Service,
2525 Capitol Street, Suite 206, Fresno, California. See
Declaration of Bobbie J. Montoya, Doc. #10, at Â¶
6. The documents Respondent shall produce
are as follows:
1) Provide copies of bank statements for WestAmerica Bank,
Merced School Employees; Federal Credit Union and Universal
Campus Credit Union. Dates: 01/01/2016 through 05/31/2016;
2) Provide copies of mortgage statement for primary
residence, 41690 Valeria Ave, Dos Palos, CA 93620. Dates: