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United States v. Earth, Wind and Solar, Inc.

United States District Court, E.D. California

June 23, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
EARTH, WIND, AND SOLAR, INC., DEAN ANTONIS PRESIDENT, Respondent.

          PHILLIP A. TALBERT, BOBBIE J. MONTOYA Attorneys for Petitioner United States of America

          MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT TAXPAYER: EARTH, WIND, SOLAR, INC., DEAN ANTONIS, PRESIDENT

         This matter came on before Magistrate Judge Erica P. Grosjean on June 16, 2017, under the Order to Show Cause issued by Magistrate Judge Michael J. Seng on April 5, 2017, ECF 4.[1]The order, with the verified petition filed March 31, 2017, ECF 1, and its supporting memorandum, ECF 3-1, was personally served on Respondent on April 11, 2017. ECF 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 for Petitioner, and investigating Revenue Officer Tony Garza was present in the courtroom. Respondent appeared at the hearing. Minutes of the proceeding were filed after the hearing. ECF 8.

         The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons issued May 17, 2016. See Exhibit A to the Petition, ECF 1-2. The summons is part of an investigation of the respondent to secure information needed to collect the tax liability for Form 940 for the calendar periods ending December 31, 2013, and December 31, 2014, and Form 941 for the quarterly periods ending June 30, 2013, September 30, 2013, December 31, 2013, March 31, 2014, June 30, 2014, September 30, 2014, and December 31, 2014.

         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 respondent the burden of rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).

         I have reviewed the petition and documents in support, along with the minutes of the order to show cause hearing. Based on the uncontroverted petition verified by Revenue Officer Tony Garza and the entire record, I make the following findings:

(1) The summons (Exhibit A to the Petition, ECF 1-2) issued by Revenue Officer Tony Garza on May 17, 2016 and served upon Respondent on May 17, 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 collect the tax liability for Form 940 for the calendar periods ending December 31, 2013, and December 31, 2014, and Form 941 for the quarterly periods ending June 30, 2013, September 30, 2013, December 31, 2013, March 31, 2014, June 30, 2014, September 30, 2014, and December 31, 2014.
(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, Earth, Wind, and Solar, Inc., Dean Antonis, President, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing.

         I therefore recommend that the IRS summons served upon Respondent, Earth, Wind, and Solar, Inc., Dean Antonis, President, be enforced, and that Respondent be ordered to appear at the IRS offices at 2525 Capitol Street, Suite 206, Fresno, CA 93721-2227, before Revenue Officer Tony Garza or her designated representative, on or before July 17, 2017, as agreed to by Revenue Officer Garza and Respondent Dean Antonis, 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 deadline need to be extended or rescheduled, ...


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