United States District Court, E.D. California
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
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.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.
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.
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).
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
(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
(8) Respondent presented no argument or evidence to rebut the
prima facie showing.
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, ...