-MJS United States of America v. Bishop, No. 1:2011cv01604 - Document 11 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the IRS summons issued to respondent, Norman Bishop, be enforced and that respondent be ordered to appear at the IRS offices on the 21st day after the filing of the District Judge's summons enforcem ent order, or at a later date to be set by the Revenue Officer, to give testimony and to produce documents for examination, and that the Court retain jurisdiction to enforce its order by its contempt power. These findings are referred back to District Judge Lawrence J. O'Neill for review with objections to same due by 2/7/2012; order signed by Magistrate Judge Sheila K. Oberto on 1/23/2012. (Rooney, M)

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-MJS United States of America v. Bishop Doc. 11 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 UNITED STATES OF AMERICA, ) ) Petitioner, ) ) v. ) ) NORMAN D. BISHOP, ) ) Respondent. ) _________________________________ ) Case No. 1:11-cv-01604-LJO-MJS MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT AND ORDER OBJECTIONS DUE: 10 DAYS TAXPAYER: NORMAN D. BISHOP, as Sole Proprietor of Clovis Ace Hardware 17 18 19 This matter came before Magistrate Judge Sheila K. Oberto on January 13, 2012, 20 under the Order to Show Cause filed October 20, 2011, which, with the verified petition and 21 memorandum, was personally served upon respondent on November 8, 2011. Respondent 22 did not file a written opposition. Yoshinori H. T. Himel, Assistant United States Attorney, 23 appeared for petitioner, and investigating Revenue Officer Lorena Ramos was present. 24 Respondent did not appear. 25 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to 26 enforce an administrative summons (Exhibit A to the petition) in aid of Revenue Officer 27 Ramos’ investigation of Norman D. Bishop to determine financial information relevant to 28 the IRS’ efforts to collect Employer’s Federal Quarterly Tax (Form 941) for the tax periods 1 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement and Order Dockets.Justia.com 1 ending March 31, 2008, June 30, 2008, September 30, 2008, December 31, 2008, March 31, 2 2009, and June 30, 2009; as well as Employer Annual Federal Unemployment Tax (Form 3 940) for the tax year ending December 31, 2008, assessed against Norman D. Bishop and 4 relating to his sole-proprietorship business, Clovis Ace Hardware. The summons was issued 5 by Revenue Officer Ramos on January 13, 2011, and was served by hand delivery to 6 respondent on the same date. 7 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found 8 to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring 9 the action. The Order to Show Cause shifted to respondent the burden of rebutting any of 10 11 12 the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). I have reviewed the petition and documents in support. Based on the uncontroverted allegations of the verified petition, and the entire record, I make the following findings: 13 (1) The summons issued by Revenue Officer Lorena Ramos to respondent, Norman 14 D. Bishop, on January 13, 2011, seeking testimony and production of documents and records 15 in respondent’s possession, was issued in good faith and for a legitimate purpose under I.R.C. 16 § 7602, that is, to determine financial information relevant to the IRS’ efforts to collect 17 Employer’s Federal Quarterly Tax (Form 941) for the tax periods ending March 31, 2008, 18 June 30, 2008, September 30, 2008, December 31, 2008, March 31, 2009, and June 30, 2009; 19 as well as Employer Annual Federal Unemployment Tax (Form 940) for the tax year ending 20 December 31, 2008, assessed against Norman D. Bishop and relating to his sole- 21 proprietorship business, Clovis Ace Hardware. 22 (2) The information sought is relevant to that purpose. 23 (3) The information sought is not already in the possession of the Internal Revenue 24 25 26 27 28 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. 2 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement and Order 1 2 3 4 (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, Norman D. Bishop, to rebut that prima facie showing. 5 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 6 For the reasons set forth above, it is HEREBY RECOMMENDED that: 7 1. The IRS summons issued to respondent, Norman D. Bishop, be enforced; 8 2. Respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, 9 Suite 206, Fresno, California 93721-2227, before Revenue Officer 10 Lorena Ramos, or her designated representative, on the twenty-first (21st) day 11 after the filing date of the District Judge's summons enforcement order, or at 12 a later date to be set in writing by Revenue Officer Ramos, then and there to 13 be sworn, to give testimony, and produce for examining and copying the 14 books, checks, records, papers and other data demanded by the summons, the 15 examination to continue from day to day until completed; and 16 3. The Court retain jurisdiction to enforce its order by its contempt power. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local 19 Rules of the United States District Court for the Eastern District of California. Within ten 20 (10) days after being served with these findings and recommendations, any party may file 21 written objections with the court and serve a copy on all parties.1 Such a document should 22 be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to 23 the objections shall be served and filed within ten (10) days after service of the objections. 24 The District Judge will then review these findings and recommendations pursuant to 25 28 U.S.C. § 636(b)(1). The parties are advised that failure to file objections within the 26 27 1 28 The Clerk shall serve this and further orders by mail to Norman D. Bishop at 11092 E. Mitchell Peak W ay, Clovis, CA 93619. 3 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement and Order 1 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 2 F.2d 1153 (9th Cir. 1991). 3 4 5 IT IS SO ORDERED. 6 Dated: ie14hj January 23, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement and Order

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