United States of America et al, No. 2:2009mc00075 - Document 9 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/18/09 RECOMMENDING that the IRS summons be enforced and that the respondent be ordered to appear at the IRS Offices re 1 Petition to Enforce IRS Summons. Referred to Judge Morrison C. England, Jr. Objections to F&R due within 14 days after being served with these findings and recommendations. (Donati, J)
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United States of America et al 1 2 3 4 Doc. 9 BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Eastern District of California 501 I Street, Suite 10-100 Sacramento, California 95814-2322 Telephone: (916) 554-2760 5 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 UNITED STATES OF AMERICA, and ALEX ALARCON, JR., Revenue Officer, Internal Revenue Service, 13 Petitioners, 14 15 16 2:09-mc-00075-MCE-EFB MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT v. MARTIN FLORES, Taxpayer: MR. MARTIN FLORES and MRS. EDUVIJES A. FLORES Respondent. 17 18 This matter came before me on December 2, 2009, under the Order to Show Cause 19 filed August 21, 2009. That order, with the verified petition and exhibits, was served on 20 respondent in conformity with Fed. R. Civ. P. 4(e) on October 15, 2009. Yoshinori H. T. 21 Himel appeared for petitioners, and petitioning Revenue Officer Alex Alarcon was 22 present. Respondent did not file an opposition and did not appear at the hearing. 23 The Verified Petition to Enforce Internal Revenue Service Summons initiating this 24 proceeding seeks to enforce an administrative summons (Exhibit A to the petition) in aid 25 of Revenue Officer Alarcon’s investigation of Martin Flores, to determine the taxpayer's 26 ability to collect assessed amounts of U. S. Individual income tax for the taxable years 27 ending December 31, 2005, and December 31, 2007. Subject matter jurisdiction is 28 invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be proper. Authorization for Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 1 Dockets.Justia.com 1 the action is under I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.). The Order to Show Cause 2 shifted to respondent the burden of rebutting any of the four requirements of United 3 States v. Powell, 379 U.S. 48, 57-58 (1964). 4 I have reviewed the petition and documents in support. Based on the 5 uncontroverted verification of Revenue Officer Alarcon and the entire record, I make the 6 following findings: 7 (1) The summons issued by Revenue Officer Alex Alarcon to respondent, Martin 8 Flores, on May 6, 2009, seeking testimony and production of documents and records in 9 respondent's possession, was issued in good faith and for a legitimate purpose under 10 I.R.C. § 7602, that is, to determine the taxpayer's ability to collect assessed amounts of 11 U.S. individual income tax for the taxable years ending December 31, 2005 and 12 December 31, 2007. 13 (2) The information sought is relevant to that purpose. 14 (3) The information sought is not already in the possession of the Internal Revenue 15 16 17 18 19 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. 20 (6) The verified petition and its exhibits made a prima facie showing of 21 satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 22 23 24 25 26 (7) The burden shifted to respondent, Martin Flores, to rebut that prima facie showing. (8) Respondent presented no argument or evidence to rebut the prima facie showing. Accordingly, it is hereby RECOMMENDED that the IRS summons issued to 27 respondent, Martin Flores, be enforced, and that respondent be ordered to appear at the 28 I.R.S. offices at 4330 Watt Avenue, Sacramento, California, 95821, before Revenue Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 2 1 Officer Alex Alarcon, or his designated representative, on the twenty-first day after the 2 filing date of the summons enforcement order, or at a later date and time to be set in 3 writing by the Revenue Officer, then and there to be sworn, to give testimony, and to 4 produce for examining and copying the books, checks, records, papers and other data 5 demanded by the summons, the examination to continue from day to day until completed. 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) 8 and Rule 304 of the Local Rules of the United States District Court for the Eastern 9 District of California. Within fourteen (14) days after being served with these findings 10 and recommendations, any party may file written objections with the court and serve a 11 copy on all parties. Such a document should be titled “Objections to Magistrate Judge's 12 Findings and Recommendations.” Any reply to the objections shall be served and filed 13 within fourteen (14) days after service of the objections. The District Judge will then 14 review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The 15 parties are advised that failure to file objections within the specified time may waive the 16 right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 The Clerk shall serve these findings and recommendations and any future orders to 18 Mr. Martin Flores, 7133 Lawnwood Drive, Sacramento, CA 95828. 19 DATED: December 18, 2009. 20 21 22 23 24 25 26 27 28 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 3
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