United States District Court, E.D. California
JOSE ALEJANDRO HERNANDEZ
FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S.
Barbara A. McAuliffe, UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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
(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 ...