Opinion
CASE NO. 1:18-CV-00566-DAD-BAM
06-29-2018
UNITED STATES OF AMERICA, Petitioner, v. IVAN RAMIREZ, Respondent.
McGREGOR W. SCOTT United States Attorney JOHN R. EDWARDS Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Attorneys for the United States
McGREGOR W. SCOTT
United States Attorney
JOHN R. EDWARDS
Assistant United States Attorney
2500 Tulare Street, Suite 4401
Fresno, CA 93721
Telephone: (559) 497-4000
Facsimile: (559) 497-4099 Attorneys for the United States FINDINGS AND RECOMMENDATIONS AND ORDER RE: IRS SUMMONS ENFORCEMENT Taxpayer: Ivan Ramirez
Currently before the Court is Petitioner United States of America's petition to enforce an Internal Revenue Service ("IRS") summons, which was filed on April 25, 2018. (ECF No. 1). The Court issued an Order to Show Cause on May 2, 2018. (ECF No. 4). The Order to Show Cause, with the verified petition and its supporting memorandum (ECF No. 3-1), was served on Respondent, on May 10, 2018, by leaving a copy at Respondent's last and usual place of abode, 17120 Melba Dr. E, Madera, California, with Respondent's father. (ECF No. 5). Respondent did not file an opposition or non-opposition to the verified petition as provided for in the Order to Show Cause. The Court held a show cause hearing before Magistrate Judge Barbara A. McAuliffe on June 29, 2018. At the hearing, John Edwards, Assistant United States Attorney, personally appeared for Petitioner, and investigating Revenue Officer Lorena Ramos was also present in the courtroom. Respondent did not appear at the hearing.
The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons issued May 24, 2017. See (ECF No. 1). The summons is part of an investigation of the respondent to secure information needed to collect the tax liability for Form 940 for the calendar periods ending December 31, 2013, December 31, 2014, December 31, 2015, and December 31, 2016, and Form 943 for the calendar periods ending December 31, 2014, December 31, 2015, and December 31, 2016.
Subject matter jurisdiction is invoked under 28 U.S. C. §§ 1340 and 1345, and is found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the action. The Order to Show Cause shifted to respondent the burden of rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
The Court has reviewed the petition and documents in support. Based on the uncontroverted petition verified by Revenue Officer Ramos and the entire record, the Court makes the following findings:
(1) The summons issued by Revenue Officer Ramos on May 24, 2017 and served upon Respondent on May 25, 2017, seeking testimony and production of documents and records in Respondent's possession, was issued in good faith and for a legitimate purpose under I.R.C. § 7602, that is, to secure information needed collect the tax liability for Form 940 for the calendar periods ending December 31, 2013, December 31, 2014, December 31, 2015, and December 31, 2016, and Form 943 for the calendar periods ending December 31, 2014, December 31, 2015, and December 31, 2016. (ECF No. 1, Exh. A).
(2) The information sought is relevant to that purpose.
(3) The information sought is not already in the possession of the Internal Revenue 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.
(6) The verified petition and its exhibits made a prima facie showing of satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
(7) The burden shifted to respondent, Ivan Ramirez, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing.
Based on the foregoing, it is therefore RECOMMENDED that the IRS summons served upon Respondent, Ivan Ramirez, be enforced and that Respondent be ordered to appear at the IRS offices at 2525 Capitol Street, Suite 206, Fresno, CA 93721-2227, before Revenue Officer Ramos or her designated representative, on or before a date to be set by Revenue Officer Ramos in consultation with Respondent, then and there to be sworn, to give testimony, and to produce for examining and copying the books, checks, records, papers, and other date demanded by the summons, the examination to continue from day to day until completed, unless compliance with the summons is fully achieved prior to the date and time set by Revenue Officer Ramos for respondent's appearance. In the event Respondent and Revenue Officer Ramos are unable to agree on a date, an appointment date shall be set by Revenue Officer Ramos. Should the appointment date need to be continued or rescheduled, the Respondent is to be notified in writing of the later date for the appointment by Revenue Officer Ramos. It is further recommend that if it enforces the summons, the Court retain jurisdiction to enforce its order by its contempt power.
These findings and recommendations are submitted to the United States District Judge assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of the United States District Court for the Eastern District of California. Within fourteen (14) 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. Such a document should be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The District Judge will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
THE CLERK SHALL SERVE this and further orders by mail to Ivan Ramirez, 17120 Melba Dr. E, Madera, CA 93638-9603. IT IS SO ORDERED.
Dated: June 29 , 2018
/s/ Barbara A . McAuliffe
UNITED STATES MAGISTRATE JUDGE