United States of America et al v. Shadley, No. 2:2009mc00080 - Document 12 (E.D. Cal. 2010)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/1/10: Recommending that the IRS summons issued to respondent, Linda P. Shadley, be enforced, and that respondent be ordered to appear at the I.R.S. offices. ORDERING that the Clerk shall serve this and future orders by mail to Ms. Linda P. Shadley. Objections to F&R due within ten (10) days. (Kaminski, H)
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United States of America et al v. Shadley 1 2 3 4 Doc. 12 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 CHARLES DUFF, Revenue Officer, Internal Revenue Service, 13 Petitioners, 14 15 16 Case No. 2:09-mc-00080-WBS-GGH MAGISTRATE JUDGE’S ORDER AND FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT v. Taxpayer: LINDA P. SHADLEY LINDA P. SHADLEY Respondent. 17 18 This matter came before me on October 15, 2009, under the Order to Show Cause 19 filed September 3, 2009, which, with the verified petition and exhibits, was personally 20 served on respondent on September 18, 2009, in compliance with Fed. R. Civ. P. 4(e). 21 Yoshinori H. T. Himel appeared for petitioners, and petitioning Revenue Officer Charles 22 Duff was present. Respondent did not file an opposition and appeared 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 Duff’s investigation to determine the existence and amounts of 26 individual income tax liabilities for the years ending December 31, 2001, December 31, 27 2002, December 31, 2004, December 31, 2005, December 31, 2006, December 31, 2007, 28 and December 31, 2008. Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 1 Dockets.Justia.com During the Order to Show Cause Hearing, respondent stated that she was willing to 1 2 comply with the summons. Because of respondent’s statement, I filed an Order on 3 October 21, 2009, discharging the order to show cause and ordering respondent to appear 4 before petitioning Revenue Officer Charles Duff, or his designated representative, to 5 provide testimony and produce the requested documents, on November 3, 2009, at 1:00 6 p.m. 7 Respondent appeared for the appointment before the Revenue Officer, but she 8 failed to comply. On December 7, 2009, the undersigned directed the government to file 9 and serve declaration outlining how respondent failed to comply with the summons. The 10 11 12 13 government has now filed the declaration of Charles Duff which states in part: 4. On November 3, 2009, respondent appeared before me at the IRS Sacramento Offices. She brought with her non of the papers requested in the summons. She was placed under oath and did respond to some questions, until such time as she asked to stop so she could have an attorney present with her. She has yet to provide a power of attorney in this case. 14 Duff. Decl., filed December 11, 2009. 15 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is 16 found to be proper. Authorization for the action is under I.R.C. §§ 7402(b) and 7604(a) 17 (26 U.S.C.). The Order to Show Cause shifted to respondent the burden of rebutting any 18 of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 19 I have reviewed the petition and documents in support. Based on the 20 uncontroverted verification of Revenue Officer Woods and the entire record, I make the 21 following findings: 22 (1) The summons issued by Revenue Officer Charles Duff to respondent, Linda P. 23 Shadley, on April 29, 2009, seeking testimony and production of documents and records 24 in respondent's possession, was issued in good faith and for a legitimate purpose under 25 I.R.C. § 7602, that is, to determine the existence and amounts of individual income tax 26 liabilities for the years ending December 31, 2001, December 31, 2002, December 31, 27 28 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 2 1 2004, December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2 2008. 3 (2) The information sought is relevant to that purpose. 4 (3) The information sought is not already in the possession of the Internal Revenue 5 6 7 8 9 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. 10 (6) The verified petition and its exhibits made a prima facie showing of 11 satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 12 (7) The burden shifted to respondent, Linda P. Shadley, to rebut that prima facie 13 14 15 16 showing. (8) Respondent presented no argument or evidence to rebut the prima facie showing. I therefore recommend that the IRS summons issued to respondent, Linda P. 17 Shadley, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 18 4330 Watt Avenue, Sacramento, California, 95821, before Revenue Officer Charles Duff, 19 or his designated representative, on the twenty-first day after the filing date of the 20 summons enforcement order, or at a later date and time to be set in writing by the 21 Revenue Officer, then and there to be sworn, to give testimony, and to produce for 22 examining and copying the books, checks, records, papers and other data demanded by 23 the summons, the examination to continue from day to day until completed. I further 24 recommend that if it enforces the summons, the Court retain jurisdiction to enforce its 25 order by its contempt power. 26 These findings and recommendations are submitted to the United States District 27 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) 28 and Rule 72-304 of the Local Rules of the United States District Court for the Eastern Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 3 1 District of California. Within ten (10) days after being served with these findings and 2 recommendations, any party may file written objections with the court and serve a copy 3 on all parties. Such a document should be titled "Objections to Magistrate Judge's 4 Findings and Recommendations." Any reply to the objections shall be served and filed 5 within ten (10) days after service of the objections. The District Judge will then review 6 these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are 7 advised that failure to file objections within the specified time may waive the right to 8 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 The Clerk shall serve this and future orders by mail to Ms. Linda P. Shadley, at 3601 Mint Way, Greenwood, California, 95635. It is SO ORDERED. 12 13 DATED: February 1, 2010 14 shadley.f&r 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE
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