United States of America v. Carranco, No. 1:2011cv01621 - Document 11 (E.D. Cal. 2011)

Court Description: MAGISTRATE JUDGE'S FINDINGS and RECOMMENDATIONS RE: I.R.S. Summons Enforcement re 1 Petition to Enforce IRS Summons filed by United States of America, signed by Magistrate Judge Barbara A. McAuliffe on 11/29/11: Objections due within ten (10) days after being served with these findings and recommendations. (Hellings, J)
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United States of America v. Carranco 1 2 3 4 5 Doc. 11 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 UNITED STATES OF AMERICA, ) ) Petitioner, ) ) v. ) ) FELIPE CARRANCO, General Partner, ) ) Respondent. ) __________________________________ ) Case No. 1:11-cv-01621-LJO-BAM MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT TAXPAYER: F&J CARRANCO FARM LABOR 16 17 This matter came before this Court on November 18, 2011, under the Order to 18 Show Cause filed September 27, 2011, which, with the verified petition and 19 memorandum, was properly served upon respondent under Fed. R. Civ. P. 4(e) on 20 October 4, 2011. Yoshinori H. T. Himel appeared for petitioners, and investigating 21 Revenue Officer Lisa Cumiford was present. Respondent did not file an opposition and 22 did not appear. 23 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks 24 to enforce an administrative summons (Exhibit A to the petition) in aid of Revenue 25 Officer Cumiford's investigation of Felipe Carranco, as General Partner for F&J Carranco 26 Farm Labor, to determine financial information relevant to the IRS’s efforts to collect 27 Employer’s Annual Federal Unemployment Tax (Form 940) for the tax years ending 28 December 31, 2001, and December 31, 2003; as well as Employer’s Annual Federal Tax Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 1 Dockets.Justia.com 1 Return for Agricultural Employees (Form 943) for the tax years ending December 31, 2 2001, December 31, 2002, and December 31, 2003; plus a civil penalty for the tax year 3 ending December 31, 2001. 4 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is 5 found to be proper. Authorization for the action is under I.R.C. §§ 7402(b) and 7604(a) 6 (26 U.S.C.). The Order to Show Cause shifted to respondent the burden of rebutting any 7 of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 8 9 10 11 The Court has reviewed the petition and documents in support. Based on the uncontroverted verification of Revenue Officer Cumiford and the entire record, the Court makes the following findings: (1) The summons issued by Revenue Officer Lisa Cumiford to respondent, Felipe 12 Carranco, on March 18, 2011, seeking testimony and production of documents and 13 records in respondent's possession, was issued in good faith and for a legitimate purpose 14 under I.R.C. § 7602, that is, to determine financial information relevant to the IRS’s 15 efforts to collect Employer’s Annual Federal Unemployment Tax (Form 940) for the tax 16 years ending December 31, 2001, and December 31, 2003; as well as Employer’s Annual 17 Federal Tax Return for Agricultural Employees (Form 943) for the tax years ending 18 December 31, 2001, December 31, 2002, and December 31, 2003; plus a civil penalty for 19 the tax year ending December 31, 2001. 20 (2) The information sought is relevant to that purpose. 21 (3) The information sought is not already in the possession of the Internal Revenue 22 23 24 25 26 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. 27 (6) The verified petition and its exhibits made a prima facie showing of 28 satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 2 (7) The burden shifted to respondent, Felipe Carranco, to rebut that prima facie 1 2 showing. (8) Respondent presented no argument or evidence to rebut the prima facie 3 4 showing. The Court therefore recommends that the IRS summons issued to respondent, 5 6 Felipe Carranco, as General Partner for F&J Carranco Farm Labor, be enforced, and that 7 respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 206, 8 Fresno, California 93721, before Revenue Officer Lisa Cumiford, or her designated 9 representative, twenty-one (21) days after the filing of the summons enforcement order, 10 or at a later date to be set in writing by Revenue Officer Cumiford, then and there to be 11 sworn, to give testimony, and to produce for examining and copying the books, checks, 12 records, papers and other data demanded by the summons, the examination to continue 13 from day to day until completed. The Court further recommends that if it enforces the 14 summons, the Court retain jurisdiction to enforce its order by its contempt power. These findings and recommendations are submitted to the United States District 15 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) 17 and Rule 72-304 of the Local Rules of the United States District Court for the Eastern 18 District of California. Within ten (10) days after being served with these findings and 19 recommendations, any party may file written objections with the court and serve a copy 20 on all parties. Such a document should be titled "Objections to Magistrate Judge's 21 Findings and Recommendations." Any reply to the objections shall be served and filed 22 within ten (10) days after service of the objections. The District Judge will then review 23 these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are 24 advised that failure to file objections within the specified time may waive the right to 25 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 26 /// 27 /// 28 /// Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 3 1 2 The Clerk shall serve this and future orders by mail to Mr. Felipe Carranco, 2023 Olive Street, Selma, California 93662. 3 4 IT IS SO ORDERED. 5 6 Dated: 10c20k November 29, 2011 /s/ Barbara A. McAuliffe 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 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 4