United States of America v. Chuhlantseff, No. 1:2012cv01462 - Document 9 (E.D. Cal. 2012)

Court Description: Magistrate Judge's FINDINGS And RECOMMENDATIONS Re: I.R.S. Summons Enforcement And Order, Taxpayer: Harold A. Chuhlantseff, signed by Magistrate Judge Barbara A. McAuliffe on 11/16/2012. F&R's referred to Judge Lawrence J. O'Neill; Objections to F&R due by 12/3/2012. (Fahrney, E)

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United States of America v. Chuhlantseff Doc. 9 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT FOR THE 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 UNITED STATES OF AMERICA, Petitioner, 11 12 13 14 v. 1:12-cv-01462-LJO-BAM MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT AND ORDER HAROLD A. CHUHLANTSEFF, Respondent. Taxpayer: HAROLD A. CHUHLANTSEFF 15 16 17 18 This matter came before Magistrate Judge Barbara A. McAuliffe on November 9, 19 2012, under the Order to Show Cause filed October 9, 2012, which, with the verified 20 petition and memorandum, was personally served upon the respondent, Harold A. 21 Chuhlantseff, on October 23, 2012. Respondent did not file written opposition. 22 Yoshinori H. T. Himel, Assistant United States Attorney, appeared for petitioner; 23 investigating Revenue Officer Lorena Ramos was present. Respondent appeared for 24 himself. He did not oppose the enforcement of the I.R.S. summons, and he agreed to 25 appear and comply on December 11, 2012, at 10:00 a.m., at the I.R.S. offices at 2525 26 Capitol Street, Suite 206, Fresno, California 93721-2227. 27 28 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement 1 Dockets.Justia.com 1 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks 2 to enforce an administrative summons, Exhibit A to the First Amended Petition. The 3 summons seeks information to aid Revenue Officer Ramos’ investigation to collect 4 delinquent Form 1040 taxes for the tax years ending December 31, 1999, December 31, 5 2000, December 31, 2001, December 31, 2002, December 31, 2003, December 31, 2005, 6 December 31, 2006, December 31, 2007 and December 31, 2008. 7 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is 8 found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government 9 to bring the action. The Order to Show Cause shifted to respondent the burden of 10 rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 11 (1964). 12 I have reviewed the petition and documents in support. Based on the 13 uncontroverted verification of the petition by Revenue Officer Ramos and the entire 14 record, I make the following findings: 15 (1) The summons issued by Revenue Officer Lorena Ramos on August 26, 2011, 16 and served upon respondent, Harold A. Chuhlantseff, on August 26, 2011, seeking 17 testimony and production of documents and records in respondent’s possession, was 18 issued in good faith and for a legitimate purpose under I.R.C. § 7602, that is, to collect 19 Form 1040 delinquent taxes for the tax years ending December 31, 1999, December 31, 20 2000, December 31, 2001, December 31, 2002, December 31, 2003, December 31, 2005, 21 December 31, 2006, December 31, 2007 and December 31, 2008. 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 Service. (4) The administrative steps required by the Internal Revenue Code have been followed. 27 28 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement 2 1 2 (5) There is no evidence of referral of this case by the Internal Revenue Service to the Department of Justice for criminal prosecution. 3 (6) The verified petition and its exhibits made a prima facie showing of 4 satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 5 6 7 8 (7) The burden shifted to respondent, Harold A. Chuhlantseff, to rebut that prima facie showing. (8) Respondent presented no argument or evidence to rebut the prima facie showing. 9 I therefore recommend that the IRS summons served upon respondent, Harold A. 10 Chuhlantseff, be enforced, and that respondent be ordered to appear either at 10:00 a.m. 11 of the twenty-first (21st ) day after the filing date of the District Judge’s summons 12 enforcement order, or at a later date to be set in writing by Revenue Officer Ramos, at the 13 I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721-2227, before 14 Revenue Officer Ramos or her designated representative, then and there to be sworn, to 15 give testimony, and to produce for examining and copying the books, checks, records, 16 papers and other data demanded by the summons, the examination to continue from day 17 to day until completed. I further recommend that if it enforces the summons, the Court 18 retain jurisdiction to enforce its order by its contempt power. 19 These findings and recommendations are submitted to the United States District 20 Judge assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72-304 of 21 the Local Rules of the United States District Court for the Eastern District of California. 22 Within ten (10) days after being served with these findings and recommendations, any 23 party may file written objections with the court and serve a copy on all parties. Such a 24 document should be titled "Objections to Magistrate Judge's Findings and 25 Recommendations." Any reply to the objections shall be served and filed within ten (10) 26 days after service of the objections. The District Judge will then review these findings 27 28 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement 3 1 and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised that 2 failure to file objections within the specified time may waive the right to appeal the 3 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 Respondent Harold A. Chuhlantseff SHALL APPEAR at the I.R.S. offices at 2525 5 Capitol Street, Suite 206, Fresno, California 93721-2227, on December 11, 2012, at 10:00 6 a.m. 7 8 9 10 11 THE CLERK SHALL SERVE this and further orders by mail to Harold A. Chuhlantseff, 140 East Griffith Way, Fresno, CA 93704-4027. IT IS SO ORDERED. Dated: 10c20k November 16, 2012 /s/ Barbara A. McAuliffe UNITED STATES MAGISTRATE JUDGE 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 4

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