United States of America v. Rodriguez, No. 1:2014cv00326 - Document 8 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS re I.R.S. Summons Enforcement signed by Magistrate Judge Gary S. Austin on 6/3/2014. Objections due within fourteen (14) days of service.(Martinez, A)

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1 BENJAMIN B. WAGNER United States Attorney 2 YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney 3 Eastern District of California 501 I Street, Suite 10-100 4 Sacramento, CA 95814-2322 Telephone: (916) 554-2760 5 Facsimile: (916) 554-2900 email: yoshinori.himel@usdoj.gov 6 Attorneys for Petitioner United States of America 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 UNITED STATES OF AMERICA, 1:14-cv-00326-LJO-GSA 13 Petitioner, FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT 14 v. 15 RICHARD RODRIGUEZ, 16 Respondent. Taxpayer: RICHARD RODRIGUEZ 17 18 19 20 21 22 23 24 25 26 27 This matter came before Magistrate Judge Gary S. Austin on May 9, 2014, under the Order to Show Cause filed March 10, 2014. The Order to Show Cause, with the Verified Petition to Enforce I.R.S. Summons filed March 6, 2014 and its supporting memorandum, was personally served upon the respondent, Richard Rodriguez, on March 18, 2014. Respondent did not file a written opposition or a notice of non-opposition to the verified petition as provided for in the Order to Show Cause. Yoshinori H. T. Himel, Assistant United States Attorney, appeared on behalf of Petitioner, and investigating Revenue Officer Lorena Ramos was also present. Respondent did not appear at the scheduled hearing. 28 Findings and Recommendations Re: I.R.S. Summons Enforcement; Order 1 The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce 1 2 an administrative summons (Exhibit A to the petition) issued May 28, 2013. The summons is 3 part of an investigation of the respondent to secure information needed to collect Form 1040 4 assessed federal income taxes for the tax year ending December 31, 2007, and civil penalties for 5 the quarterly tax periods ending June 30, 2008, September 30, 2008, December 31, 2008, March 6 31, 2009, June 30, 2009, September 30, 2009, December 31, 2009, March 31, 2010, June 30, 7 2010, September 30, 2010, December 31, 2010, March 31, 2011, June 30, 2011, and September 8 30, 2011. Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to 9 10 be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the 11 action. The Order to Show Cause shifted to respondent the burden of rebutting any of the four 12 requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). The Court has reviewed the petition and supporting documents. Based on the 13 14 uncontroverted verified petition by Revenue Officer Lorena Ramos and the entire record, the 15 Court makes the following findings: (1) The summons issued by Revenue Officer Lorena Ramos on May 28, 2013, and served 16 17 upon respondent, Richard Rodriguez, on May 28, 2013, seeking testimony and production of 18 documents and records in respondent’s possession, was issued in good faith and for a legitimate 19 purpose under I.R.C. § 7602, that is, to secure information needed to collect Form 1040 assessed 20 federal income taxes for the tax year ending December 31, 2007, and civil penalties for the 21 quarterly tax periods ending June 30, 2008, September 30, 2008, December 31, 2008, March 31, 22 2009, June 30, 2009, September 30, 2009, December 31, 2009, March 31, 2010, June 30, 2010, 23 September 30, 2010, December 31, 2010, March 31, 2011, June 30, 2011, and September 30, 24 2011. 25 (2) The information sought is relevant to that purpose. 26 (3) The information sought is not already in the possession of the Internal Revenue 27 Service. 28 (4) The administrative steps required by the Internal Revenue Code have been followed. Findings and Recommendations Re: I.R.S. Summons Enforcement; Order 2 1 (5) There is no evidence of referral of this case by the Internal Revenue Service to the 2 Department of Justice for criminal prosecution. 3 (6) The verified petition and its exhibits made a prima facie showing in satisfaction of the 4 requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 5 (7) The burden shifted to respondent, Richard Rodriguez, to rebut that prima facie 6 showing. 7 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 8 The Court therefore recommends that the IRS summons served upon Respondent, 9 Richard Rodriguez, be enforced, and that Respondent be ordered to appear at the I.R.S. offices 10 at 2525 Capitol Street, Suite 206, Fresno, California, before Revenue Officer Lorena Ramos or 11 her designated representative, on the twenty-first (21st) day after the filing date of the District 12 Judge’s summons enforcement order, or at a later date to be set in writing by Revenue Officer 13 Ramos, then and there to be sworn, to give testimony, and to produce for examining and 14 copying the books, checks, records, papers and other data demanded by the summons, the 15 examination to continue from day to day until completed. It is further recommended that if it 16 enforces the summons, the District Court should retain jurisdiction to enforce its order by means 17 of its contempt power. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to this case pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local 20 Rules of this Court. Within fourteen (14) days after being served with these findings and 21 recommendations, any party may file written objections with the court and serve a copy on all 22 parties. Such a document should be titled "Objections to Magistrate Judge's Findings and 23 Recommendations." Any reply to the objections shall be served and filed within ten (10) days 24 after service of the objections. The District Judge will then review these findings and 25 recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised that failure to file 26 objections within the specified time may waive the right to appeal the District Court's order. 27 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 28 Findings and Recommendations Re: I.R.S. Summons Enforcement; Order 3 1 THE CLERK SHALL SERVE this and further orders by mail to Richard Rodriguez, 2 7233 W. Browning, Fresno, California 93723. 3 4 IT IS SO ORDERED. 5 6 Dated: June 3, 2014 /s/ Gary S. Austin 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 Findings and Recommendations Re: I.R.S. Summons Enforcement; Order 4

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