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United States v. Rea

United States District Court, E.D. California

March 6, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
MANUEL CARRAZCO REA, Respondent.

         Taxpayer: MANUEL CARRAZCO REA

          PHILLIP A. TALBERT United States Attorney BOBBIE J. MONTOYA Assistant United States Attorney Eastern District of California Attorneys for Petitioner United States of America

          MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT

          MICHAEL J. SENG UNITED STATES MAGISTRATE JUDGE

         This matter came on before Magistrate Judge Michael J. Seng on February 24, 2017, under the Order to Show Cause filed November 15, 2016. ECF 4. The order, with the verified petition filed November 4, 2016, ECF 1, and its supporting memorandum, ECF 3-1, was personally served on Respondent, on December 22, 2016, in Madera, California. ECF 5. Respondent did not file opposition or non-opposition to the verified petition as provided for in the Order to Show Cause. At the hearing, Bobbie J. Montoya, Assistant United States Attorney, personally appeared on behalf of Petitioner, and investigating Revenue Officer Lorena Ramos also was present in the courtroom. Respondent did not appear at the hearing.

         The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons issued December 1, 2015. See Exhibit A to the Petition, ECF 1-2. The summons is part of an investigation of the respondent to determine the existence and amount of U.S. tax liability and collection of the tax liability for Form 940 for the calendar periods ending December 31, 2006, December 31, 2007, and December 31, 2008; Form 943 for the calendar periods ending December 31, 2006, and December 31, 2007, and Form CIVPEN for the calendar period ending December 31, 2006.

         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 the 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 Lorena Ramos and the entire record, I make the following findings:

         (1) The summons (Exhibit A to the Petition, ECF 1-2) issued by Revenue Officer Lorena Ramos on December 1, 2015, and served upon Respondent on December 4, 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. § 7602, that is, to determine the existence and amount of U.S. tax liability and collection of the tax liability for Form 940 for the calendar periods ending December 31, 2006, December 31, 2007, and December 31, 2008; Form 943 for the calendar periods ending December 31, 2006, and December 31, 2007, and Form CIVPEN for the calendar period ending December 31, 2006.

         (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 ...


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