-MJS United States of America v. Rolff, No. 1:2011cv00430 - Document 9 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Re 1 Petition to Enforce IRS Summons signed by Magistrate Judge Sandra M. Snyder on 5/26/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due in Ten Days. (Sant Agata, S)
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-MJS United States of America v. Rolff Doc. 9 5 BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney United States Courthouse 2500 Tulare Street, Suite 4401 Fresno, California 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 6 Attorneys for Petitioner United States of Americ1 1 2 3 4 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 UNITED STATES OF AMERICA, ) ) Petitioner, ) ) v. ) ) ) JOHN A. ROLFF, ) ) Respondent. ) ____________________________________ ) Case No. 1:11-cv-00430-LJO-SMS MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT 17 This matter came before me on May 13, 2011, under the Order to Show Cause filed 18 19 March 29, 2011, which, with the verified petition and memorandum, was personally served upon 20 respondent on April 5, 2011. Yoshinori H. T. Himel appeared for petitioners, and petitioning 21 Revenue Officer Lorena Ramos was present. Respondent did not file an opposition and did not 22 appear. 23 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to 24 enforce an administrative summons (Exhibit A to the petition) in aid of Revenue Officer Ramos’ 25 investigation of John A. Rolff, as sole proprietor of Sierra Automotive, to determine financial 26 information to collect assessed Employer’s Annual Federal Unemployment Tax (Form 940) for 27 the tax years ending December 31, 2006, December 31, 2007, and December 31, 2008; and 28 Employer’s Federal Quarterly Tax (Form 941) for the tax periods ending June 30, 2007, Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 1 Dockets.Justia.com 1 September 30, 2007, December 31, 2007, March 31, 2008, June 30, 2008, September 30, 2008, 2 December 31, 2008, March 31, 2009, June 30, 2009, and September 30, 2009. 3 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to 4 be proper. Authorization for the action is under I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.). The 5 Order to Show Cause shifted to respondent the burden of rebutting any of the four requirements 6 of United States v. Powell, 379 U.S. 48, 57-58 (1964). 7 I have reviewed the petition and documents in support. Based on the uncontroverted 8 verification of Revenue Officer Ramos and the entire record, I make the following findings: 9 (1) The summons issued by Revenue Officer Lorena Ramos to respondent, John A. Rolff, 10 on April 13, 2010, seeking testimony and production of documents and records in respondent's 11 possession, was issued in good faith and for a legitimate purpose under I.R.C. § 7602, that is, to 12 determine financial information to collect assessed Employer’s Annual Federal Unemployment 13 Tax (Form 940) for the tax years ending December 31, 2006, December 31, 2007, and December 14 31, 2008; and Employer’s Federal Quarterly Tax (Form 941) for the tax periods ending June 30, 15 2007, September 30, 2007, December 31, 2007, March 31, 2008, June 30, 2008, September 30, 16 2008, December 31, 2008, March 31, 2009, June 30, 2009, and September 30, 2009. 17 (2) The information sought is relevant to that purpose. 18 (3) The information sought is not already in the possession of the Internal Revenue 19 Service. 20 (4) The administrative steps required by the Internal Revenue Code have been followed. 21 (5) There is no evidence of referral of this case by the Internal Revenue Service to the 22 23 24 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). 25 (7) The burden shifted to respondent, John A. Rolff, to rebut that prima facie showing. 26 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 27 I therefore recommend that the IRS summons issued to respondent, John A. Rolff, as sole 28 proprietor of Sierra Automotive, be enforced, and that respondent be ordered to appear at the Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 2 1 I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721, before Revenue Officer 2 Lorena Ramos, or her designated representative, twenty-one (21) days after the filing of the 3 summons enforcement order, or at a later date to be set in writing by Revenue Officer Ramos, 4 then and there to be sworn, to give testimony, and to produce for examining and copying the 5 books, checks, records, papers and other data demanded by the summons, the examination to 6 continue from day to day until completed. I further recommend that if it enforces the summons, 7 the Court retain jurisdiction to enforce its order by its contempt power. These findings and recommendations are submitted to the United States District Judge 8 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72- 10 304 of the Local Rules of the United States District Court for the Eastern District of California. 11 Within ten (10) days after being served with these findings and recommendations, any party may 12 file written objections with the court and serve a copy on all parties. Such a document should be 13 titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the 14 objections shall be served and filed within ten (10) days after service of the objections. The 15 District Judge will then review these findings and recommendations pursuant to 28 U.S.C. 16 § 636(b)(1). The parties are advised that failure to file objections within the specified time may 17 waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 18 1991). 19 20 The Clerk shall serve this and future orders by mail to Mr. John A. Rolff, 40110 Highway 49, Oakhurst, California 93644. 21 22 23 IT IS SO ORDERED. 24 25 Dated: icido3 May 26, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 26 27 28 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 3
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