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United States v. Kelly

United States District Court, E.D. California

June 6, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
MICHAEL A. KELLY, Respondent.

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

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         This matter came on before the undersigned on May 26, 2017, under the Order to Show Cause filed March 30, 2017. (ECF No. 3.) The order, with the verified petition filed March 21, 2017, (ECF No. 1), and its supporting memorandum, (ECF No. 2-1), was personally served on Respondent, on April 5, 2017, at his place of business, at 6108 Watt Avenue, N. Highlands, California. (ECF 4.) 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, appeared for Petitioner, and investigating Revenue Officer Kim Ulring also was present in the courtroom. Respondent appeared at the hearing on his own behalf.[1]

         The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons issued June 17, 2016. See Exhibit A to the Petition, ECF 1-2. The summons is part of an investigation of the respondent to secure information related to the tax liability or the collection of the tax liability for assessed federal income tax (Form 1040) for the tax periods ending December 31, 2010, December 31, 2011, December 31, 2012, 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. 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).

         The undersigned has reviewed the petition and documents in support. Based on the uncontroverted petition verified by Revenue Officer Ulring, and the entire record, I make the following findings:

         (1) The summons (Exhibit A to the Petition, ECF 1-2) issued by Revenue Officer Kim Ulring on June 17, 2016 and served upon Respondent on June 17, 2017, 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 related to the tax liability or the collection of the tax liability for assessed federal income tax (Form 1040) for the tax periods ending December 31, 2010, December 31, 2011, December 31, 2012, 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, Michael A. Kelly, to rebut that prima facie showing.

         (8) Respondent presented no argument or evidence to rebut ...


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