United States of America et al v. Soliz, No. 2:2009mc00069 - Document 10 (E.D. Cal. 2009)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 10/6/09. ORDERING that the Clerk shall serve this order and future orders on Mr. Max Soliz, Jr., 16967 Alexandra Way, Grass Valley, CA 95949. It is RECOMMENDED that the summons issued to respondent, Max Soliz, Jr., be enforced, and that respondent be ordered to appear at 4330 Watt Ave., Sacramento, CA, before Revenue Officer Charles Duff or his designated representative, within 21 days of the date of the fi ling by the District Judge of an order adopting these F&R's or otherwise enforcing the summons, or at an alternate time and date to be set by Revenue Officer Duff, then and there to be sworn, to give testimony, and to produce for examining and c opying the books, checks, records, papers and other data demanded by the summonses, the examination to continue from day to day until completed. Case referred to District Judge England. Within 20 days after being served with these F&R's, pltf may file written objections with the court.(Kastilahn, A)
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United States of America et al v. Soliz Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA and CHARLES DUFF, Revenue Officer, Internal Revenue Service, 12 13 14 15 16 17 Petitioners, NO. Misc S-09-69 MCE KJM v. MAX SOLIZ, JR., Respondent. ORDER AND FINDINGS AND RECOMMENDATIONS __________________________ _____/ This matter came on for hearing before the undersigned on September 30, 2009. 18 Yoshinori Himel appeared for petitioners; respondent Max Soliz, Jr. appeared in propria persona. 19 Revenue Officer Charles Duff was duly sworn and fully direct-examined. Respondent declined 20 to cross-examine. Respondent Max Soliz, Jr. was duly sworn, testified, and was cross-examined 21 at the hearing. Petitioner’s Exhibits 1through 4 were admitted. Respondent submitted the 22 affidavit of Daniel Gray, which petitioner moved to strike, and which motion is denied. 23 The Petition to Enforce Internal Revenue Service Summons initiating this 24 proceeding seeks to enforce one summons, which is in aid of Revenue Officer Charles Duff’s 25 investigation for tax determination. On August 25, 2009, this court issued an Order to Show 26 Cause ("OSC"), shifting to respondent the burden of rebutting any of the four requirements of 1 Dockets.Justia.com 1 United States v. Powell, 379 U.S. 48, 57-58 (1964). The court has reviewed the petition and 2 documents in support and the opposition, and considered the testimony provided and arguments 3 made at the hearing. Based on the uncontroverted verification and testimony of Revenue Officer 4 Duff, testimony of respondent Max Soliz, Jr., and the entire record, the undersigned makes the 5 following findings: 6 (1) The summons issued by Revenue Officer Charles Duff to respondent Max 7 Soliz, Jr., as Chief Financial Officer of Alta Sierra Insurance Services, Inc. and served on April 1, 8 2009, seeking testimony and production of documents and records in respondent's possession, 9 were in good faith and for a legitimate purpose under I.R.C. § 7602. Specifically, the summons 10 was for the determination of financial information to aid in the determination of corporate 11 income tax liabilities for Alta Sierra Insurance Services, Inc., for the taxable years ending 12 December 31, 2007 and December 31, 2008. 13 (2) The information sought by the summons is relevant to that purpose. 14 (3) The information sought is not already in the possession of the Internal 15 Revenue Service. 16 17 (4) The administrative steps required by the Internal Revenue Code have been followed. 18 19 (5) There is no evidence of referral of this case by the Internal Revenue Service to the Department of Justice for criminal prosecution. 20 (6) The verified petition and its exhibits make a prima facie showing of 21 satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 22 23 (7) The burden shifted to respondent, Max Soliz, Jr., to rebut that prima facie showing. 24 (8) Despite respondent’s appearance at the hearing, respondent presented no 25 argument or evidence sufficient to rebut the prima facie showing. 26 ///// 2 1 In light of the above, IT IS HEREBY ORDERED THAT the Clerk shall serve this 2 order and future orders on Mr. Max Soliz, Jr., 16967 Alexandra Way, Grass Valley, California, 3 95949. 4 Accordingly, it is hereby RECOMMENDED that the summons issued to 5 respondent, Max Soliz, Jr., be enforced, and that respondent be ordered to appear at 4330 Watt 6 Ave., Sacramento, California, before Revenue Officer Charles Duff or his designated 7 representative, within twenty-one days of the date of the filing by the District Judge of an order 8 adopting these Findings and Recommendations or otherwise enforcing the summons, or at an 9 alternate time and date to be set by Revenue Officer Duff, then and there to be sworn, to give 10 testimony, and to produce for examining and copying the books, checks, records, papers and 11 other data demanded by the summonses, the examination to continue from day to day until 12 completed. 13 These findings and recommendations are submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 15 days after being served with these findings and recommendations, plaintiff may file written 16 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 17 Findings and Recommendations.” Plaintiff is 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 DATED: October 6, 2009. 21 22 23 24 25 006 26 usa-soliz.irs 3
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