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
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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) 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, 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 ...