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United States v. Canepa

United States District Court, E.D. California

November 20, 2017

UNITED STATES OF AMERICA, Petitioner,
v.
WILLIAM C. CANEPA, Respondent.

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

          ORDER

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         This matter came on before Magistrate Judge Edmund F. Brennan on November 8, 2017, under the Order to Show Cause filed May 17, 2017, ECF 4, and the continuance of hearing order filed September 25, 2017, ECF 9. The order, with the verified petition filed May 11, 2017, ECF 1, and its supporting memorandum, ECF 2-1, were personally handed to the Respondent at his residence at 219 S. Fairmont, Lodi, California, by Revenue Officer Cynthia J. Kallich on June 8, 2017. ECF 5. Respondent did not file opposition or non-opposition to the verified petition as provided for in the Order to Show Cause. Respondent engaged a power of attorney to represent him before the I.R.S., who was working with Revenue Officer Kallich to get Respondent in compliance with the tax summons at issue in this proceeding before the hearing. The court continued the hearing twice in order to give Respondent additional time to fully comply without the hearing, but Respondent has failed to produce to Revenue Office Kallich all of the requested records. At the hearing, Bobbie J. Montoya, Assistant United States Attorney, personally appeared on behalf of Petitioner, and investigating Revenue Officer Kallich also was present in the courtroom. Respondent failed to appear at the hearing.

         The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons issued March 18, 2016. See Exhibit A to the Petition, ECF 1-2. The summons is part of an investigation of the Respondent to secure information relating to the tax liability and the collection of the tax liability for Form 1040 for the calendar periods ending December 31, 2004, December 31, 2005, December 31 2006, December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, and December 31, 2011.[1]

         Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be proper. The I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the action. The Order to Show Cause shifted to the 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 Cynthia J. Kallich 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 Cynthia J. Kallich on March 18, 2016, and served upon Respondent on March 18, 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 relating to the tax liability and the collection of tax liability, currently limited to Form 1040 calendar periods ending December 31, 2004, December 31, 2005, December 31 2006, December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, and December 31, 2011.[2]
(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, William C. Canepa, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing. The court therefore recommend that the I.R.S. summons served upon Respondent, William C. Canepa, be enforced and that Respondent be ordered to appear at the I.R.S. offices at 4643 Quail Lakes Drive, Stockton, California, before Revenue Officer Cynthia J. Kallich or her designated representative, on the twenty-eighth (28th) 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 Cynthia J. Kallich, 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 ...

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