Gallegos v. U.S.

Full title: SHERILYN J. GALLEGOS, Plaintiff, v. UNITED STATES, Defendant

Court: United States District Court, D. Colorado

Date published: Mar 17, 2003

Civil Action No. 03-N-52 (MJW) (D. Colo. Mar. 17, 2003)

Opinion

Civil Action No. 03-N-52 (MJW).

March 17, 2003.

ORDER REGARDING (1) PLAINTIFF'S PETITION TO QUASH SUMMONS (DOCKET NO. 1) and (2) DEFENDANT UNITED STATES' PETITION TO ENFORCE SUMMONS (DOCKET NO. 2)

MICHAEL WATANABE, Magistrate Judge

This matter is before the court on the Plaintiff's Petition to Quash Summons (docket no. 1) and on the Defendant United States' Petition to Enforce Summons (docket no. 2). The court has considered both motions and the attachments thereto. In addition, the court has considered applicable federal statutes as cited in the motions and case law. The court now being fully informed makes the following findings of fact, conclusions of law and order.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

This court finds:

1. That it has jurisdiction over the subject matter pursuant to 28 2 U.S.C. § 1340.

2. That venue is proper in the State and District of Colorado.

3. That each party has been given a fair and adequate opportunity to be heard.

4. That Beth S. Nichols ("Ms. Nichols") is a duly commissioned Revenue Agent employed in Area 11 of Territory 3 of the Small Business/Self-Employed Division of the Internal Revenue Service with a post of duty at Denver, Colorado.

5. Ms. Nichols is currently conducting an investigation to determine the federal income tax liability, if any, for Plaintiff for the tax years 1999, 2000, and 2001.

6. That on December 23, 2002, Ms. Nichols caused a summons to be issued to Morgan Stanley Dean Witter pursuant to 26 U.S.C. § 7602. The summons requests that Morgan Stanley Dean Witter produce for examination records for accounts held by the Plaintiff for which the Plaintiff has signature authority for the years 1999, 2000, and 2001.

7. That on December 23, 2002, pursuant to 26 U.S.C. § 7603, Ms. Nichols served by certified mail, a copy of the summons on Morgan Stanley Dean Witter.

8. That on December 23, 2002, pursuant to 26 U.S.C. § 7609, Ms. Nichols served by certified mail a copy of the summons upon the Plaintiff at her last known address.

9. That on January 9, 2003, Plaintiff filed her Petition to Quash Summons in this court.

10. That Plaintiff has failed to comply with the service requirements of 26 U.S.C. § 7609 and Fed.R.Civ.P. 4(i)(1).

11. That the Defendant United States has met the requirements as outlined in United States v. Powell, 379 U.S. 48 (1964), and has shown good faith by demonstrating "that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code (IRS Code) have been followed. . . ."

12. That Plaintiff has failed to demonstrate any legally sufficient basis to deny enforcement of the summons. Plaintiff has further failed to demonstrate an abuse of the court's process or lack of institutional good faith.

ORDER

Based upon these findings of fact and conclusions of law, the Court ORDERS:

1. That the Plaintiff's Petition to Quash Summons (docket no. 1) is DENIED.

2. That the Defendant United States' Petition to Enforce Summons (docket no. 2) is GRANTED

3. That Morgan Stanley Dean Witter shall respond to the Summons issued on December 23, 2002, by the IRS (exhibit A) attached and the Summons issued January 10, 2003, by the IRS (exhibit B) attached.