United States District Court, E.D. California
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
matter came on before Magistrate Judge Michael J. Seng on
February 24, 2017, under the Order to Show Cause filed
November 21, 2016. ECF 4. The order, with the verified
petition filed November 17, 2016, ECF 1, and its supporting
memorandum, ECF 3-1, was personally served on Respondent, on
December 28, 2016, at his residence, 3453 Dorothy Street,
Bakersfield, 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 Michael J. Papasergia also was
present in the courtroom. Respondent appeared at the hearing.
Verified Petition to Enforce I.R.S. Summons initiating this
proceeding seeks to enforce an administrative summons issued
July 20, 2016. See Exhibit A to the Petition, ECF
1-2. The summons is part of an investigation of the
respondent to secure collection information for federal
income tax (Form 1040) for the calendar years ending December
31, 2000, December 31, 2003, December 31, 2004, December 31,
2005, and December 31, 2006.
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).
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
summons (Exhibit A to the Petition, ECF 1-2) issued by
Revenue Officer Michael J. Papasergia on July 20, 2016, and
served upon Respondent on July 20, 2016, 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
collection information needed for federal income tax (Form
1040) for the calendar years ending December 31, 2000,
December 31, 2003, December 31, 2004, December 31, 2005, and
December 31, 2006.
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