Opinion
No. C-03-3855-WHA
January 30, 2004
KEVIN V. RYAN, for United States
JAY R. WEELL, for Assistant United States, Chief, Tax Division
EMILY J. KINGSTON, Assistant United States, San Francisco, California, for the United States of America
PETITIONERS' STATUS STATEMENT AND VOLUNTARY DISMISSAL OF ACTION PURSUANT TO F.R.C.P. 41(a)
STATEMENT
On August 20, 2003, the Petitioners, the United States of America and Revenue Officer Ed Sabrack, filed a Verified Petition to enforce an administrative Internal Revenue Service ("IRS") summons served upon the Respondent, Emmett W. Smith, on March 31, 2003, which sought testimony and records with respect to the Respondent's potential income tax liabilities for taxable years 1999, 2000, and 2001. On September 8, 2003, the Court issued an Order to Show Cause pursuant to which the Respondent was ordered to appear before the Court and show cause as to why he should not be compelled to comply with the administrative summons. The Order to Show Cause was served upon the Respondent on September 11, 2003, by leaving a copy thereof at his last and usual place of abode located at 6 Hillcrest, Unit 5, Larkspur, California 94939.
On October 16, 2003, the Court held the Show Cause hearing; the Respondent failed to appear. On that same date, the Court entered an Order Enforcing Summons, pursuant to which the Respondent was ordered to appear before an agent of the IRS on November 4, 2003, at 10:00 a.m. and give testimony and produce documents in response to the summons. In the event the Respondent failed to either appear or to provide testimony and documents in response to the summons, and as ordered by the Court, the Order further set a Contempt hearing for November 6, 2003, at 11:00 a.m.
The Petitioners were ordered to serve the Order Enforcing Summons upon the Respondent. The IRS made three attempts to personally serve the Respondent, to no avail. On the last attempt, a neighbor of the Respondent advised the IRS agent attempting service that the Respondent had moved to San Jose, but did not provide a forwarding address. The ERS immediately filed a postal tracer with the U.S. Postal Service, but has to date not received any further information regarding the Respondent's current address or whereabouts. As such, the IRS has been unable to personally serve the Order Enforcing Summons upon the Respondent. In addition, copies of the Order that were mailed to the Respondent from the office of Counsel for the Petitioners have been returned as unclaimed.
VOLUNTARY DISMISSAL OF ACTION UNDER F.R.C.P. 41(a)
Given that the IRS has been unable to locate the Respondent to effectuate personal service of the Order Enforcing Summons or to further prosecute this action, the Petitioners hereby voluntarily dismiss this action without prejudice, pursuant to Federal Rule of Civil Procedure 41 (a).
This matter is eligible for voluntary dismissal under Federal Rule of Civil Procedure 41(a), as the Respondent has filed no responsive pleadings in this action.