United States District Court, E.D. California
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS
AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT
K. Oberto. UNITED STATES MAGISTRATE JUDGE
matter came on before Magistrate Judge Sheila K. Oberto on
February 22, 2017, under the Order to Show Cause filed
November 21, 2016. (Doc. 4). The order, with the verified
petition filed November 8, 2016, (Doc. 1), and its supporting
memorandum, (Doc. 3, Ex. 1), was personally served on
Respondent, Julian C. Chapa, on December 15, 2016, at his
place of residence, 2368 5th Street, Sanger, California.
(Doc. 5). 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 J. Montoya,
Assistant United States Attorney, personally appeared on
behalf of Petitioner, and investigating Revenue Officer Lisa
R. Lopez (formerly known as Lisa R. Cumiford) was also
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
February 8, 2016. See Exhibit A to the Petition,
(Doc. 1, Ex. 2). The summons is part of an investigation of
the Respondent to secure information needed to collect the
tax liability for Form 1040 for the calendar periods ending
December 31, 2007, December 31, 2008, December 31, 2009,
December 31, 2010, December 31, 2011, and December 31, 2012.
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).
Court has reviewed the petition and the supporting documents.
Based on the uncontroverted petition verified by Revenue
Officer Lisa R. Lopez and the entire record, the Court makes
the following findings:
(1) The summons (Exhibit A to the Petition, Doc. 1, Ex. 2)
issued by Revenue Officer Lisa R. Lopez on February 8, 2016,
and served upon Respondent on February 9, 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 information needed to collect the tax liability for
Form 1040 for the calendar periods ending December 31, 2007,
December 31, 2008, December 31, 2009, December 31, 2010,
December 31, 2011, and December 31, 2012.
(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
(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, Julian C. Chapa, to
rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the
prima facie showing. The Court therefore recommends
that the I.R.S. summons served upon Respondent, Julian C.
Chapa, be enforced and that Respondent be ordered to appear
at the I.R.S. offices at 2525 Capitol Street, Suite 206,
Fresno, CA 93721-2227, before Revenue Officer Lisa R. Lopez
or her designated representative, on March 24, 2017, at 10:00
a.m., as agreed to by Revenue Officer Lopez and Respondent,
Julian C. Chapa, 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, papers and other data
demanded by the summons, the examination to continue from day
to day until completed, unless compliance with the summons is
fully achieved prior to that date and time. Should the
foregoing appointment date need to be continued or
rescheduled, the Respondent is to be notified in writing of a
later date by Revenue Officer Lopez. The Court further
recommends that if it enforces the summons, that the Court
retain jurisdiction to enforce its order by its contempt
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 304 of the Local Rules
of the United States District Court for the Eastern District
of California. Within fourteen (14) 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 fourteen (14) days after service of
the objections. The District Judge will then review these
findings and recommendations pursuant to 28 U.S.C. §