United States of America v. Nelson, No. 2:2014cv02341 - Document 9 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/18/14 RECOMMENDING that the IRS summons served upon Respondent, Kevin Nelson, be enforced, and that Respondent be ordered to appear at the I.R.S. offices at 4330 Watt Avenue, Sacramento, CA 95814, before Revenue Agent Agavni Angels Isayan or her designated representative, on the twenty-first (21st) day after the filing date of the District Judge's summons enforcement order, or at a later date to be set in w riting by Revenue Agent Isayan, then and there to be sworn, to give testimony, and to produce for examining and copying the books, checks, records, papers and other data demanded by the summons, the examination to continue from day to day until co mpleted. I further recommend that if it enforces the summons, the Court retain jurisdiction to enforce its order by its contempt power. Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Matter referred to Judge Garland E. Burrell, Jr.. The Clerk shall serve this and further orders by mail to Kevin Nelson, 27 Railway, Roberts, MT 59070. (Kastilahn, A)
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United States of America v. Nelson Doc. 9 1 BENJAMIN B. WAGNER United States Attorney 2 YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney 3 Eastern District of California 501 I Street, Suite 10-100 4 Sacramento, CA 95814-2322 Telephone: (916) 554-2760 5 Facsimile: (916) 554-2900 email: yoshinori.himel@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 15 [PROPOSED] MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMMONS ENFORCEMENT v. 13 14 2:14-cv-02341-GEB-EFB KEVIN NELSON, Respondent. Taxpayer: KEVIN NELSON 16 17 18 19 20 This matter came on before Magistrate Judge Edmund F. Brennan on December 10, 21 2014, under the Order to Show Cause filed October 21, 2014. The order, with the verified 22 petition filed October 6, 2014, and its supporting memorandum, was personally served on 23 Respondent at his residence on November 7, 2014. 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 Yoshinori H.T. Himel, Assistant United States Attorney, personally appeared for Petitioner, and 26 investigating Revenue Agent Agavni Angela Isayan was present in the courtroom. Respondent 27 did not appear at the hearing. 28 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT 1 Dockets.Justia.com 1 The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce 2 an administrative summons (Exhibit A to the petition) issued May 13, 2014. The summons is 3 part of an investigation of the respondent to secure information needed to determine the correct 4 federal income tax liabilities and statutory additions for the tax years ending December 31, 5 2006, December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, and 6 December 31, 2011. 7 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to 8 be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the 9 action. The Order to Show Cause shifted to respondent the burden of rebutting any of the four 10 requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 11 I have reviewed the petition and documents in support. Based on the uncontroverted 12 petition verified by Revenue Agent Agavni Angela Isayan and the entire record, I make the 13 following findings: 14 (1) The summons issued by Revenue Agent Agavni Angela Isayan on May 13, 2014, and 15 served on May 13, 2014, seeking testimony and production of documents and records in 16 respondent’s possession, was issued in good faith and for a legitimate purpose under I.R.C. 17 § 7602, that is, to secure information needed to secure information needed to determine the 18 correct federal individual income taxes and statutory additions for the years ending December 19 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009, December 31, 2010, 20 December 31, 2011. 21 (2) The information sought is relevant to that purpose. 22 (3) The information sought is not already in the possession of the Internal Revenue 23 Service. 24 (4) The administrative steps required by the Internal Revenue Code have been followed. 25 (5) There is no evidence of referral of this case by the Internal Revenue Service to the 26 Department of Justice for criminal prosecution. 27 (6) The verified petition and its exhibits made a prima facie showing of satisfaction of the 28 requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT 2 1 (7) The burden shifted to respondent, Kevin Nelson, to rebut that prima facie showing. 2 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 3 I therefore recommend that the IRS summons served upon Respondent, Kevin Nelson, be 4 enforced, and that Respondent be ordered to appear at the I.R.S. offices at 4330 Watt Avenue, 5 Sacramento, CA 95814, before Revenue Agent Agavni Angels Isayan or her designated 6 representative, on the twenty-first (21st) day after the filing date of the District Judge’s 7 summons enforcement order, or at a later date to be set in writing by Revenue Agent Isayan, 8 then and there to be sworn, to give testimony, and to produce for examining and copying the 9 books, checks, records, papers and other data demanded by the summons, the examination to 10 continue from day to day until completed. I further recommend that if it enforces the summons, 11 the Court retain jurisdiction to enforce its order by its contempt power. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72-304 of the Local 14 Rules of the United States District Court for the Eastern District of California. Within ten (10) 15 days after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be titled 17 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections 18 shall be served and filed within ten (10) days after service of the objections. The District Judge 19 will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The 20 parties are advised that failure to file objections within the specified time may waive the right to 21 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 THE CLERK SHALL SERVE this and further orders by mail to Kevin Nelson, 27 23 Railway, Roberts, MT 59070. 24 It is SO ORDERED. 25 DATED: December 18, 2014. 26 27 28 MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT 3
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