-DAD United States of America et al v. Calhoun, No. 2:2011mc00068 - Document 7 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 10/13/11 re 1 Petition to Enforce IRS Summons RECOMMENDING that the IRS summons issued to respondent be enforced and that respondent be ordered to appear at the I.R.S. offices within 10 days of this issuance of the summons enforcement order, and further RECOMMENDS that if it enforces the summons, the Court retain jurisdiction to enforce its order by its contempt power. Referred to Judge Morrison C. England, Jr. Objections to F&R due 14 days after being served with these findings and recommendations. (Meuleman, A)

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-DAD United States of America et al v. Calhoun 1 2 3 4 5 Doc. 7 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, CA 95814-2322 Telephone: (916) 554-2760 Facsimile: (916) 554-2900 Email: yoshinori.himel@usdoj.gov 6 Attorney for Petitioner United States of America 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 UNITED STATES OF AMERICA, KIM ) ULRING, Revenue Officer, Internal ) Revenue Service ) ) Petitioners, ) ) v. ) ) EVERETT D. CALHOUN, ) ) Respondent. ) __________________________________ ) Case No. 2:11-mc-00068-MCE-DAD MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT TAXPAYER: EVERETT D. CALHOUN 17 18 This matter came before me on September 30, 2011, under the Order to Show 19 Cause filed August 2, 2011, which, with the verified petition and memorandum, was 20 sufficiently served upon respondent, Mr. Everett D. Calhoun, under Fed. R. Civ. P. 4(e), 21 on August 18, 2011. Respondent did not file written opposition. At the hearing, Yoshinori H. T. Himel appeared for petitioner, and petitioning 22 23 Revenue Officer Kim Ulring was present. Respondent appeared in person and brought 24 with him what the Revenue Officer accepted as partial compliance with the IRS 25 summons. The parties, in open court, expressed their agreement to meet on Wednesday, 26 October 5, 2011, at 3:00 p.m., at the Sacramento IRS office, for respondent to continue 27 complying with the IRS summons. 28 /// 1 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT Dockets.Justia.com 1 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks 2 to enforce an administrative summons (Exhibit A to the petition) in aid of Revenue 3 Officer Ulring’s investigation of Everett D. Calhoun, to determine the existence and 4 amounts of U.S. individual income tax liabilities for the taxable years ending December 5 31, 2000, December 31, 2001, December 31, 2003, and December 31, 2004. 6 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is 7 found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government 8 to bring the action. The Order to Show Cause shifted to respondent the burden of 9 rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 10 11 (1964). I have reviewed the petition and documents in support. Based on the 12 uncontroverted verification of Revenue Officer Ulring and the entire record, I make the 13 following findings: 14 (1) The summons issued by Revenue Officer Kim Ulring to respondent, Everett D. 15 Calhoun, on April 20, 2010, seeking testimony and production of documents and records 16 in respondent’s possession, was issued in good faith and for a legitimate purpose under 17 I.R.C. § 7602, that is, to obtain information to determine the existence and amounts of 18 U.S. individual income tax liabilities for the taxable years ending December 31, 2000, 19 December 31, 2001, December 31, 2003, and December 31, 2004. 20 (2) The information sought is relevant to that purpose. 21 (3) The information sought is not already in the possession of the Internal Revenue 22 23 24 25 26 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. 27 (6) The verified petition and its exhibits made a prima facie showing of 28 satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 2 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT 1 2 3 4 (7) The burden therefore shifted to respondent, Everett D. Calhoun, to rebut that prima facie showing. (8) Respondent has presented no argument or evidence to rebut the prima facie showing. 5 I therefore recommend that the IRS summons issued to respondent, Everett D. 6 Calhoun, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 7 4330 Watt Avenue, Sacramento, California 95821, before Revenue Officer Kim Ulring, 8 or her designated representative, within 10 days of this issuance of the summons 9 enforcement order, then and there to be sworn, to give testimony, and to produce for 10 examining and copying the books, checks, records, papers and other data demanded by 11 the summons, the examination to continue from day to day until completed. I further 12 recommend that if it enforces the summons, the Court retain jurisdiction to enforce its 13 order by its contempt power. 14 These findings and recommendations are submitted to the United States District 15 Judge assigned to the case under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the 16 Local Rules of the United States District Court for the Eastern District of California. 17 Within fourteen (14) days after being served with these findings and recommendations, 18 any party may file written objections with the court and serve a copy on all parties. Such 19 a document should be titled “Objections to Magistrate Judge's Findings and 20 Recommendations.” Any reply to the objections shall be served and filed within seven 21 (7) days after service of the objections. The assigned District Judge will then review 22 these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are 23 advised that failure to file objections within the specified time may waive the right to 24 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 DATED: October 13, 2011. 26 27 Ddad1\orders.civil\usvcalhoun0068.f&r 28 3 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT

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