United States District Court, E.D. California
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.
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.
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.
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. 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
(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.
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. §