United States of America v. Torres, Jr., No. 1:2015cv00427 - Document 10 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS and ORDER regarding IRS Summons Enforcement signed by Magistrate Judge Michael J. Seng on 7/1/2015. Referred to Judge Lawrence J. O'Neill; (Objections to F&R due by 7/20/2015). (Lundstrom, T)

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1 BENJAMIN B. WAGNER United States Attorney 2 BOBBIE J. MONTOYA Assistant United States Attorney 3 Eastern District of California 501 I Street, Suite 10-100 4 Sacramento, CA 95814-2322 Telephone: (916) 554-2775 5 Facsimile: (916) 554-2900 email: bobbie.montoya@usdoj.gov 6 7 Attorneys for Petitioner United States of America 8 IN THE UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Petitioner, 12 v. 13 14 1:15-cv-00427-LJO-MJS MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT HERLIN TORRES, JR., Respondent. 15 Taxpayer: HERLIN TORRES, JR. 16 17 18 19 This matter came on before Magistrate Judge Michael J. Seng on June 12, 2015, under 20 the Order to Show Cause filed March 24, 2015. Dkt. 6. The order, with the verified petition 21 filed March 18, 2015 (Dkt. 1), and its supporting memorandum (Dkt. 5-1), was personally 22 served on Olma Torres, Respondent’s wife, at their place of residence, 4326 North Emerson 23 Avenue, Apartment 101, Fresno, California. Dkt. 7. Respondent did not file opposition or non24 opposition to the verified petition as provided for in the Order to Show Cause. At the hearing, 25 Bobbie J. Montoya, Assistant United States Attorney, appeared on behalf of Petitioner, and 26 investigating Revenue Officer Dennis Stiffler also was present in the courtroom. Respondent 27 appeared at the show cause hearing. 28 / / / 30 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT 1 The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce 1 2 administrative summonses (Exhibits A and B to the Petition) issued July 17, 2014. The 3 summonses are part of an investigation of the respondent to secure information needed to collect 4 assessed federal income taxes (Form 1040) for tax years ending December 31, 2000, 5 December 31, 2001, December 31, 2002, December 31, 2005, and December 31, 2010, and 6 seeking information needed to determine the correct federal income taxes and statutory additions 7 for the tax years ending December 31, 2006, December 31, 2007, December 31, 2008, 8 December 31, 2011, and December 31, 2013. 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). I have reviewed the petition and documents in support. Based on the uncontroverted 13 14 verified petition by Revenue Officer Dennis Stiffler and the entire record, I make the following 15 findings: (1) The summonses (Exhibits A and B to the Petition) issued by Revenue Officer Dennis 16 17 Stiffler on July 17, 2014, and served upon Respondent, on July 17, 2014, seeking testimony and 18 production of documents and records in respondent’s possession, were issued in good faith and 19 for a legitimate purpose under I.R.C. § 7602, that is, to secure information needed to collect 20 assessed federal income taxes (Form 1040) for tax years ending December 31, 2000, December 31, 21 2001, December 31, 2002, December 31, 2005, and December 31, 2010, and seeking information 22 needed to determine the correct federal income taxes and statutory additions for the tax years ending 23 December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2011, and December 31, 24 2013. 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 30 (4) The administrative steps required by the Internal Revenue Code have been followed. MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT 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 of satisfaction of the 4 requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 5 (7) The burden shifted to respondent, Olma Torres, to rebut that prima facie showing. 6 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 7 I therefore recommend that the I.R.S. summonses served upon Respondent, be enforced; 8 and that Respondent be ordered to appear at the I.R.S. offices at 5300 West Tulare Avenue, 9 Suite 106, Visalia, California, before Revenue Officer Stiffler or his designated representative, 10 on or before July 22, 2015, at 10:00 a.m., as agreed to by Revenue Officer Stiffler and 11 Respondent Herlin Torres, Jr., at the show cause hearing. Revenue Officer Stiffler is to mail 12 IRS Form 433-A (“Collection Information Statement for Wage Earners and Self-Employed 13 Individuals") immediately to Respondent. Respondent is to fill out the form and attach all 14 documents requested therein, complete the form, sign it under penalty of perjury, and take it to 15 the July 22 appearance at I.R.S. Should the July 22, 2015, appearance need to be continued or 16 rescheduled, it should be set in writing for a later date by Revenue Officer Stiffler. Respondent 17 is to appear before Revenue Officer Stiffler or his designated representative, then and there to be 18 sworn, to give testimony, and to produce for examining and copying the books, checks, records, 19 papers and other data demanded by the summons, the examination to continue from day to day 20 until completed. I further recommend that if it enforces the summons, the Court retain 21 jurisdiction to enforce its order by its contempt power. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of 24 the United States District Court for the Eastern District of California. Within fourteen (14) days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be titled 27 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections 28 shall be served and filed within fourteen (14) days after service of the objections. The District 30 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT 3 1 Judge will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). 2 The parties are advised that failure to file objections within the specified time may waive the 3 right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 THE CLERK SHALL SERVE this and further orders by mail to Herlin Torres, Jr., 4326 5 North Emerson Avenue, Apartment 101, Fresno, California 93705. 6 7 IT IS SO ORDERED. 8 9 Dated: July 1, 2015 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT 4

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