United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
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
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.
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).
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
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,
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
United States v. Powell, 379 U.S. 48, 57-58 (1964).
burden shifted to respondent, Michael A. Kelly, to rebut that
prima facie showing.
Respondent presented no argument or evidence to rebut ...