United States of America v. Capps, No. 1:2011cv01968 - Document 9 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the IRS served upon respondent, Mark Capps, be enforced, and that respondent be ordered to appear at the IRS offices on March 30, 2012, at 9:00 AM, or another date to be set in writing by the Revenue Off icer, 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 Chief Judge Anthony W. Ishii 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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United States of America v. Capps Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 UNITED STATES OF AMERICA, ) ) Petitioner, ) ) v. ) ) MARK CAPPS, Corporate Vice President, ) Mustang Ranch II, Inc., ) ) Respondent. ) __________________________________ ) Case No. 1:11-cv-01968-AWI-MJS MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT AND ORDER OBJECTIONS DUE: 10 DAYS TAXPAYER: MUSTANG RANCH II, INC. 17 18 This matter came before Magistrate Judge Sheila K. Oberto on January 13, 2012, 19 under the Order to Show Cause filed December 1, 2011, which, with the verified petition and 20 memorandum, was personally served upon the respondent, Mark Capps, as Corporate Vice 21 President, Mustang Ranch II, Inc., on December 6, 2011. Respondent did not file a written 22 opposition. 23 petitioners; investigating Revenue Officer David M. Lopez was present. Respondent 24 appeared for himself. He did not oppose the enforcement of the I.R.S. summons, and he 25 agreed to comply. 26 Yoshinori H. T. Himel, Assistant United States Attorney, appeared for The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to 27 enforce an administrative summons, Exhibit A to the petition. 28 information to aid Revenue Officer Lopez’ investigation to determine the correct liabilities The summons seeks 1 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT AND ORDER Dockets.Justia.com 1 of Mustang Ranch II, Inc. for corporate income tax (Form 1120) for the tax year ending 2 December 31, 2009. 3 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found 4 to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring 5 the action. The Order to Show Cause shifted to respondent the burden of rebutting any of 6 the four requirements 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 the petition by Revenue Officer Lopez and the entire record, I make the 9 following findings: 10 (1) The summons issued by Revenue Officer David M. Lopez on July 12, 2011, and 11 served upon respondent, Mark Capps, on July 13, 2011, seeking testimony and production 12 of documents and records in respondent’s possession, was issued in good faith and for a 13 legitimate purpose under I.R.C. § 7602, that is, to determine the correct liabilities of Mustang 14 Ranch II, Inc. for corporate income tax (Form 1120) for the tax year ending December 31, 15 2009. 16 (2) The information sought is relevant to that purpose. 17 (3) The information sought is not already in the possession of the Internal Revenue 18 19 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. (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, Mark Capps, to rebut that prima facie showing. 26 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 27 For the reasons set forth above, it is HEREBY RECOMMENDED that: 28 1. The IRS summons served upon respondent, Mark Capps, be enforced; 2 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT AND ORDER 1 2. Respondent be ordered to appear on March 30, 2012, at 9:00 a.m., or another 2 date to be set in writing by Revenue Officer Lopez, at the I.R.S. offices at 3 2525 Capitol Street, Suite 206, Fresno, California 93721-2227, before 4 Revenue Officer Lopez or his designated representative, then and there to be 5 sworn, to give testimony, and to produce for examining and copying the books, 6 checks, records, papers and other data demanded by the summons, the 7 examination to continue from day to day until completed; and 8 3. The Court retain jurisdiction to enforce its order by its contempt power. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local 11 Rules of the United States District Court for the Eastern District of California. Within ten 12 (10) days after being served with these findings and recommendations, any party may file 13 written objections with the court and serve a copy on all parties.1 Such a document should 14 be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to 15 the objections shall be served and filed within ten (10) days after service of the objections. 16 The District Judge will then review these findings and recommendations pursuant to 17 28 U.S.C. § 636(b)(1). The parties are advised that failure to file objections within the 18 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 19 F.2d 1153 (9th Cir. 1991). 20 21 22 IT IS SO ORDERED. 23 Dated: ie14hj January 23, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 1 The Clerk shall serve this and further orders by mail to Mark Capps, at 1404 N. Abby, Fresno, CA 93703. 3 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT AND ORDER

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