U.S. v. Kuyper

Full title: UNITED STATES OF AMERICA Petitioner, v. DUANE L. KUYPER, individually…

Court: United States District Court, D. South Dakota, Southern Division

Date published: Feb 24, 2004

No. CIV 03-4196 (D.S.D. Feb. 24, 2004)

Opinion

No. CIV 03-4196.

February 24, 2004

ORDER FOR ISSUANCE OF ARREST WARRANTS

LAWRENCE PIERSOL, Chief Judge, District

Pending before the Court is the United States' Motion for Issuance of Arrest Warrants. (Doc. 32.) The motion and the accompanying Declaration of Revenue Agent Roberta Gagnon indicate that Duane Kuyper and Mary Kuyper, despite being held in contempt of Court, have failed to comply with the Order Enforcing Summonses. Duane Kuyper and Mary Kuyper have responded to the motion by filing a Motion for More Definite Statement (doc. 38) and two Responses to Motion for Issuance of Arrest Warrants (docs. 43 and 45). The two responses are almost identical, both challenging the authority of the IRS agent who issued the summonses.¹

1 The Kuypers have been advised that the IRS agent is a commissioned IRS Revenue Agent and is authorized to issue summonses, and that this Court has jurisdiction to enforce IRS summonses pursuant to 26 U.S.C. § 7402(b) and 7604(a).

DISCUSSION

This Court issued an Order Enforcing Summonses. After Duane Kuyper and Mary Kuyper failed to obey the Order Enforcing Summonses, the Court issued an Order to Show Cause for Contempt. The Kuypers were served with the Order but failed to appear at the Show Cause Hearing on October 27, 2003. They were held in contempt of Court. The Court issued an Order advising the Kuypers that arrest warrants would be issued on November 17, 2003, if they failed to appear with the summonsed documents and provide the required testimony to the IRS. By letter dated November 14, 2003, the Court was advised by counsel for the United States that the Kuypers produced "at least some of the documents required under the IRS summons which the Court enforced. . . ." The Court was asked to hold in abeyance the order for issuance of arrest warrants until the documents provided by the Kuypers were fully reviewed. Arrest warrants were not issued.

The IRS then filed the pending motion, indicating that the Kuypers did not provide any bank account information for respondent Mary Kuyper alone, nor did they provide any books for Mr. Kuyper's business. The IRS agent attests that Mr. Kuyper previously represented that the Kuypers have these documents. The Kuypers' responses to the pending motion fail to address the points raised by the United States regarding the lack of compliance with the Order Enforcing Summonses. Accordingly,

IT IS ORDERED:

(1) That the Respondents, Duane L. Kuyper, individually and as trustee of the Kuyper Family Revocable Living Trust, and Mary L. Kuyper, individually, remain in civil contempt of this Court;

(2) That unless the Respondents, Duane L. Kuyper and Mary L. Kuyper, appear with the summonsed documents and provide the required testimony to the IRS by the close of business Friday, April 2, 2004, arrest warrants will be issued by the Court on Monday, April 5, 2004, and the Respondents, Duane L. Kuyper and Mary L. Kuyper, shall be held in custody until they purge themselves of their civil contempt;

(3) That the Respondents, Duane L. Kuyper and Mary L. Kuyper, may make arrangements to self-surrender to the custody of the United States Marshal's Service on Monday, April 5, 2004 by calling the Marshal's Service at 605-330-4351 no later than 5:00 p.m. on Friday, April 2, 2004. The United States Marshal's Service is located at 400 So. Phillips Ave., Sioux Falls, South Dakota 57104. If arrangements for self-surrender to the custody of the Marshal are not made by 5:00 on Friday, April 2, 2004, and if the Respondents have failed to appear with the summonsed documents and to provide the required testimony to the IRS by the close of business Friday, April 2, 2004, the Court will issue the arrest warrants on Monday, April 5, 2004;

(4) That whether Respondents Duane L. Kuyper and Mary L. Kuyper choose to self-surrender or whether they are arrested by the Marshal on April 5, 2004, the Respondents shall remain in custody until they purge themselves of the civil contempt by providing the documents and testimony summonsed by the IRS;

(5) That the United States shall notify the Court of any compliance or noncompliance with the Court's Order Enforcing Summonses by the Respondents, Duane L. Kuyper and Mary L. Kuyper, prior to the issuance of the arrest warrants on April 5, 2004;

(6) That, if the Respondents, Duane L. Kuyper and Mary L. Kuyper, are taken into custody, the United States shall immediately notify the Court in writing when they have purged themselves of contempt by providing the documents and testimony summonsed by the IRS; and

(7) That the Clerk of Court shall mail a copy of this Order to the Respondents, Duane L. Kuyper and Mary L. Kuyper, and the United States shall serve a copy of this order on the Respondents by certified mail.