-MJS United States of America v. Patel, No. 1:2011cv01255 - Document 14 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS RE: 1 I.R.S. Summons Enforcement signed by Magistrate Judge Michael J. Seng on 10/07/2011. Referred to Judge Ishii; Objections to F&R due by 10/24/2011. (Flores, E)
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-MJS United States of America v. Patel 1 2 3 4 5 Doc. 14 BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Eastern District of California 501 I Street, Suite 10-100 Sacramento, CA 95814-2322 Telephone: (916) 554-2760 Facsimile: (916) 554-2900 Email: yoshinori.himel@usdoj.gov 6 Attorney for Petitioner United States of America 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 UNITED STATES OF AMERICA, ) ) Petitioner, ) ) v. ) ) HETENDRA M. PATEL, Agent for ) Service for Red Zone, Inc., ) ) Respondent. ) __________________________________ ) Case No. 1:11-CV-01255 AWI MJS MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT TAXPAYER: RED ZONE, INC. 17 This matter came before me on September 23, 2011, under the Order to Show 18 Cause filed August 1, 2011, which, with the verified petition and memorandum, was 19 adequately served upon respondent, Mr. Hetendra M. Patel, under Fed. R. Civ. P. 4(e), on 20 August 9, 2011. Respondent did not file written opposition. 21 At the hearing, Yoshinori H. T. Himel appeared for petitioner, and investigating 22 Revenue Officer Lisa Cumiford was present. Respondent appeared in person. The 23 parties, in open court, expressed their agreement to meet on Wednesday, November 2, 24 2011, at 9:00 a.m., at the Fresno IRS office, for respondent to comply with the IRS 25 summons. 26 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks 27 to enforce an administrative summons (Exhibit A to the petition) in aid of Revenue 28 Officer Cumiford’s investigation of Hetendra M. Patel, as Agent for Service of Red Zone, 1 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT Dockets.Justia.com 1 Inc., to obtain financial information relevant to the IRS’s efforts to collect Employer’s 2 Federal Quarterly Tax (Form 941) for the tax periods ending June 30, 2009, and 3 September 30, 2009. 4 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is 5 found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government 6 to bring the action. The Order to Show Cause shifted to respondent the burden of 7 rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 8 (1964). 9 I have reviewed the petition and documents in support. Based on the 10 uncontroverted verification of Revenue Officer Cumiford and the entire record, I make 11 the following findings: 12 (1) The summons issued by Revenue Officer John Costa to respondent, Hetendra 13 M. Patel, agent for service for Red Zone, Inc., on December 14, 2010, seeking testimony 14 and production of documents and records in respondent's possession, was issued in good 15 faith and for a legitimate purpose under I.R.C. § 7602, that is, to obtain information for 16 the collection of assessed Employer’s Federal Quarterly Tax (Form 941) for the tax 17 periods ending June 30, 2009, and September 30, 2009. 18 (2) The information sought is relevant to that purpose. 19 (3) The information sought is not already in the possession of the Internal Revenue 20 21 22 23 24 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. 25 (6) The verified petition and its exhibits made a prima facie showing of 26 satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 27 28 (7) The burden shifted to respondent, Hetendra M. Patel, to rebut that prima facie showing. 2 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT (8) Respondent presented no argument or evidence to rebut the prima facie 1 2 showing. 3 I therefore recommend that the IRS summons issued to respondent, Hetendra M. 4 Patel, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 2525 5 Capitol Street, Suite 205, Fresno, California 93721, before Revenue Officer Lisa 6 Cumiford, or her designated representative, on Wednesday, November 2, 2011, at 9:00 7 a.m., then and there to be sworn, to give testimony, and to produce for examining and 8 copying the books, checks, records, papers and other data demanded by the summons, the 9 examination to continue from day to day until completed. I further recommend that if it 10 enforces the summons, the Court retain jurisdiction to enforce its order by its contempt 11 power. 12 These findings and recommendations are submitted to the United States District 13 Judge assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72-304 of 14 the Local Rules of the United States District Court for the Eastern District of California. 15 Within ten (10) days after being served with these findings and recommendations, any 16 party may file written objections with the court and serve a copy on all parties. Such a 17 document should be titled "Objections to Magistrate Judge's Findings and 18 Recommendations." Any reply to the objections shall be served and filed within ten (10) 19 days after service of the objections. The District Judge will then review these findings 20 and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised that 21 failure to file objections within the specified time may waive the right to appeal the 22 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. 25 Dated: ci4d6 October 7, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 26 27 28 3 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT
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