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United States v. Pappace

United States District Court, E.D. California

June 23, 2017

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

         Taxpayer: MICHAEL A. PAPPACE

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

          BARBARA A. McAULIFFE UNITED STATES MAGISTRATE JUDGE

         This matter came on before Magistrate Judge Barbara A. McAuliffe on June 16, 2017, under the Order to Show Cause issued March 29, 2017. ECF 4. The order, with the verified petition filed March 21, 2017, ECF 1, and its supporting memorandum, ECF 3-1 were personally served on Respondent on May 16, 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 Lisa R. Lopez (formerly known as Lisa R. Cumiford) also was present in the courtroom. Respondent Michael A. Pappace personally appeared at the hearing.

         The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons issued July 21, 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 1040 for the calendar periods ending December 31, 2005, December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, December 31, 2011, and December 31, 2012.

         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).

         The Court has reviewed the petition and documents in support. Based on the uncontroverted petition verified by Revenue Officer Lisa R. Lopez and the entire record, the Court makes the following findings:

(1) The summons (Exhibit A to the Petition, ECF 1-2) issued by Revenue Officer Lisa R. Lopez on July 21, 2016 and served upon Respondent on July 21, 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 1040 for the calendar periods ending December 31, 2005, December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, December 31, 2011, and December 31, 2012.
(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. Pappace, to rebut that pri ...

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