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United States v. Freitas

United States District Court, E.D. California

June 26, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
CHARLES FREITAS, Respondent.

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

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

         This matter came on before Magistrate Judge Erica P. Grosjean on June 16, 2017, under the Order to Show Cause filed April 20, 2017, ECF 4. The order, with the verified petition filed April 17, 2017, ECF 1, and its supporting memorandum, ECF 3-1, was personally served on Respondent, on May 12, 2017, at his place of residence, 4332 S. Fruit Avenue, Fresno, California 93706. 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 did not appear at the hearing.

         The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons issued June 8, 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, 2009, December 31, 2010, December 31, 2011, and December 31, 2013, and Form 941 for the quarterly periods ending September 30, 2009, December 31, 2009, December 31, 2010, March 31, 2011, June 30, 2011, September 30, 2011, December 31, 2011, March 31, 2013, June 30, 2013, September 30, 2013, December 31, 2013.

         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. Based on the uncontroverted petition verified by Revenue Officer Lisa R. Lopez and the entire record, I make the following findings:

(1) The summons (Exhibit A to the Petition, ECF 1-2) issued by Revenue Officer Lisa R. Lopez on June 8, 2016 and served upon Respondent on June 9, 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, 2009, December 31, 2010, December 31, 2011, and December 31, 2013, and Form 941 for the quarterly periods ending September 30, 2009, December 31, 2009, December 31, 2010, March 31, 2011, June 30, 2011, September 30, 2011, December 31, 2011, March 31, 2013, June 30, 2013, September 30, 2013, December 31, 2013.
(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, Charles Freitas, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing. I therefore recommend that the I.R.S. summons served upon Respondent, Charles Freitas, be enforced and that Respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, CA 93721-2227, before Revenue Officer Lisa R. Lopez or her designated representative, on the twenty-first (21st) day after the filing date of the District Judge's summons enforcement order, or at a later date to be set in writing by Revenue Officer Lopez, 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. I further recommend that if it enforces the summons, the Court retain jurisdiction to enforce its order by its contempt power.

         These findings and recommendations are submitted to the United States District Judge assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of the United States District Court for the Eastern District of California. Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be titled “Objections to Magistrate Judge's Findings and Recommendations.” Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The District Judge will then review these findings and recommendations pursuant to 28 U.S.C. § ...


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