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United States v. Hernandez

United States District Court, E.D. California

March 13, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
JOSE ALEJANDRO HERNANDEZ, Respondent.

         Taxpayer: JOSE ALEJANDRO HERNANDEZ

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

          Barbara A. McAuliffe, UNITED STATES MAGISTRATE JUDGE

         This matter came on before Magistrate Judge Barbara A. McAuliffe on February 24, 2017, under the Order to Show Cause filed November 21, 2016. (Doc. 4). The order, with the verified petition filed November 17, 2016, (Doc. 1), and its supporting memorandum, (Doc. 3-1), were taped to the residence of Respondent Jose Alejandro Hernandez (“Respondent”) at 26128 Club Drive, Madera, California, by Revenue Agent Naoemi Salinas on December 13, 2016. Before Revenue Agent Salinas left the scene, Respondent drove up and was informed by Agent Salinas that the legal documents were taped to his door; she later saw that he had retrieved the documents. (Doc. 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 Agent Naoemi Salinas also was present in the courtroom. Respondent Jose Alejandro Hernandez personally appeared at the hearing.

         The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons issued July 22, 2016. See Exhibit A to the Petition, (Doc. 1-2.) The summons is part of an investigation of the respondent to secure information relating to the tax liability or the collection of the tax liability for federal income tax for the years ending December 31, 2013, December 31, 2014, and December 31, 2015.

         Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be proper. Internal Revenue Code §§ 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).

         The Court has reviewed the petition and documents in support. Based on the uncontroverted petition verified by Revenue Agent Naoemi Salinas and the entire record, the Court makes the following findings:

(1) The summons issued by Revenue Agent Naoemi Salinas on July 22, 2016, and served upon Respondent on July 22, 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 relating to the tax liability or the collection of the tax liability for federal income tax for the years ending December 31, 2013, December 31, 2014, and December 31, 2015.
(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, Jose Alejandro Hernandez, to rebut that pr ...

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