United States of America v. O'Neal, No. 2:2015mc00088 - Document 14 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS and ORDER signed by Magistrate Judge Kendall J. Newman on 12/8/2015 RECOMMENDING that the I.R.S. summons served upon Respondent be enforced. IT IS FURTHER RECOMMENDED that if it enforces the summons, the Court retain ju risdiction to enforce its order by its contempt power. Referred to Judge Morrison C. England, Jr.; Objections to the findings and recommendations due within 14 days. The Clerk is ORDERED to serve this and further orders by mail to Robert E. O'Neal, 313 Peach Place, Winters, CA 95694. (Yin, K)

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1 BENJAMIN B. WAGNER United States Attorney 2 BOBBIE J. MONTOYA Assistant United States Attorney 3 Eastern District of California 501 I Street, Suite 10-100 4 Sacramento, CA 95814-2322 Telephone: (916) 554-2775 5 Facsimile: (916) 554-2900 Email: Bobbie.Montoya@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 13 v. 14 ROBERT E. O’NEAL, 2:15-MC-00088-MCE-KJN FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT Taxpayer: ROBERT E. O’NEAL Respondent. 15 16 17 18 This matter came on for hearing before U.S. Magistrate Kendall J. Newman on December 1 19 3, 2015, under the Order to Show Cause (OSC) dated August 18, 2015. (ECF No. 3). Alternate 20 service of process was approved by the Court on September 29, 2015. (ECF No. 7.) Petitioner 21 sent the OSC, with the verified petition filed August 12, 2015, and its supporting memorandum, 22 to Respondent Robert E. O’Neal by U.S. Mail on September 30, 2015, Certified Mail on 23 September 30, 2015, and taped to the Respondent’s residence at 313 Peach Place in Winters, CA 24 on October 1, 2015, in accordance with the order approving alternate service. (See ECF Nos. 825 10.) The package sent by certified mail was returned “unclaimed” by the Respondent. (See 26 ECF No. 12.) The Postal markings on the package show the Postal Service’s attempts to deliver 27 28 1 The October 22, 2015 hearing date provided in the OSC was continued to December 3, 2015, by order filed September 24, 2015. Doc. #5. Magistrate Judge’s Findings and Recommendations 30 and Order Re: I.R.S. Summons Enforcement 1 1 to Respondent on October 7, 20 and 24, 2015. (See id.) Respondent did not file opposition or 2 non-opposition to the verified petition as provided for in the OSC. At the hearing, Bobbie J. 3 Montoya, Assistant United States Attorney, appeared on behalf of Petitioner, and investigating 4 Revenue Officer Jose Arteaga also was present in the courtroom. Respondent, Robert E. 5 O’Neal, did not appear at the hearing nor call the Revenue Officer or Counsel. 6 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to 7 enforce an administrative summons (Exhibit A to the petition) issued February 13, 2015. The 8 summons is part of an investigation of the respondent to secure information needed to collect 9 assessed federal income taxes (Form 1040) for the tax years ending December 31, 2004, 10 December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2008. 11 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to 12 be proper. The I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the 13 action. The OSC shifted to respondent the burden of rebutting any of the four requirements of 14 United States v. Powell, 379 U.S. 48, 57-58 (1964). 15 The court has reviewed the petition and documents in support. Based on the 16 uncontroverted verified petition by Revenue Officer Jose Arteaga and the entire record, the 17 undersigned makes the following findings: 18 (1) The summons issued by Revenue Officer Jose Arteaga on February 13, 2015, and 19 served upon the respondent on February 13, 2015, seeking testimony and production of 20 documents and records in respondent’s possession, was issued in good faith and for a legitimate 21 purpose under I.R.C. § 7602, that is, to secure information needed to collect Form 1040 federal 22 income taxes for tax years ending December 31, 2004, December 31, 2005, December 31, 2006, 23 December 31, 2007, and December 31, 2008. 24 (2) The information sought is relevant to that purpose. 25 (3) The information sought is not already in the possession of the Internal Revenue 26 Service. 27 (4) The administrative steps required by the Internal Revenue Code have been 28 followed. Magistrate Judge’s Findings and Recommendations 30 and Order Re: I.R.S. Summons Enforcement 2 1 (5) There is no evidence of referral of this case by the Internal Revenue Service to the 2 Department of Justice for criminal prosecution. 3 (6) The verified petition and its exhibits made a prima facie showing of satisfaction of 4 the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 5 (7) The burden shifted to respondent, Robert E. O’Neal, to rebut that prima facie 6 showing. 7 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 8 The undersigned therefore recommends that the I.R.S. summons served upon Respondent 9 be enforced; and that Respondent be ordered to appear at the I.R.S. offices at 4830 Business 10 Center Drive, Suite 250, Fairfield, California, before Revenue Officer Jose Arteaga or his 11 designated representative, on the twenty-eighth (28th) day after the filing date of the District 12 Judge’s summons enforcement order, or at a later date to be set in writing by Revenue Officer 13 Jose Arteaga, then and there to be sworn, to give testimony, and to produce for examining and 14 copying the books, checks, records, papers and other data demanded by the summons, the 15 examination to continue from day to day until completed. It is further recommended that if it 16 enforces the summons, the Court retain jurisdiction to enforce its order by its contempt power. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of 19 the United States District Court for the Eastern District of California. Within fourteen (14) days 20 after being served with these findings and recommendations, any party may file written 21 objections with the court and serve a copy on all parties. Such a document should be titled 22 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections 23 shall be served and filed within fourteen (14) days after service of the objections. The District 24 Judge will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). 25 The parties are advised that failure to file objections within the specified time may waive the 26 right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 27 //// 28 //// Magistrate Judge’s Findings and Recommendations 30 and Order Re: I.R.S. Summons Enforcement 3 1 THE CLERK SHALL SERVE this and further orders by mail to Robert E. O’Neal, 313 2 Peach Place, Winters, California 95694. 3 IT IS SO ORDERED. 4 Dated: December 8, 2015 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Magistrate Judge’s Findings and Recommendations 30 and Order Re: I.R.S. Summons Enforcement 4

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