Opinion
1:13-cv-01076-LJO-SMS
2013-09-23
UNITED STATES OF AMERICA, Petitioner, v. BERTONI BARRERA, as sole proprietor of EL REALITO DE ORO, Respondent.
BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Eastern District of California Attorneys for Petitioner United States of America
BENJAMIN B. WAGNER
United States Attorney
YOSHINORI H. T. HIMEL #66194
Assistant United States Attorney
Eastern District of California
Attorneys for Petitioner United States of America
FINDINGS AND RECOMMENDATIONS
RE: I.R.S. SUMMONS ENFORCEMENT
Taxpayer:
BERTONI BARRERA
This matter came before Magistrate Judge Sandra M. Snyder on September 4, 2013, under the Order to Show Cause filed July 18, 2013. The order, with the verified petition filed July 15, 2013, and its supporting memorandum, was personally served upon the respondent, Bertoni Barrera, as sole proprietor of El Realito De Oro, on July 26, 2013. Respondent did not file written opposition or non-opposition to the verified petition as provided for in the Order to Show Cause. Yoshinori H. T. Himel, Assistant United States Attorney, appeared by telephone on behalf of Petitioner, and investigating Revenue Officer Evan D. Moses was present. Respondent did not appear at the scheduled hearing; however, the Court later recalled the matter when Respondent made a late appearance. The Court advised Respondent as to what had transpired at the hearing and provided him with AUSA Himel's contact information.
The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) issued March 8, 2013. The summons is part of an investigation of the respondent to secure information for collection of assessed Form 941 Employer's Federal Quarterly Tax for tax periods December 31, 2010, March 31, 2011, June 30, 2011, December 31, 2011, March 31, 2012, and June 30, 2012, and assessed Form 940 Employer Annual Federal Unemployment Tax for tax periods December 31, 2010 and December 31, 2011, all relating to the food service business of which Respondent Barrera is the sole proprietor.
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).
I have reviewed the petition and documents in support. Based on the uncontroverted verified petition by Revenue Officer Moses and the entire record, I make the following findings:
(1) The summons issued by Revenue Officer Evan D. Moses on March 8, 2013, and served upon respondent, Bertoni Barrera, on March 8, 2013, 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 for collection of assessed Form 941 Employer's Federal Quarterly Tax for tax periods December 31, 2010, March 31, 2011, June 30, 2011, December 31, 2011, March 31, 2012, and June 30, 2012, and assessed Form 940 Employer Annual Federal Unemployment Tax for tax periods December 31, 2010 and December 31, 2011, all for Respondent's sole proprietorship.
(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, Bertoni Barrera, to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing.
I therefore recommend that the IRS summons served upon Respondent, Bertoni Barrera, be enforced, and that Respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 205, Fresno, California 93721, before Revenue Officer Moses or his designated representative, on the twenty-first (21st) day after the filing date of the District Judge's summons enforcement order, or at a later date to be set in writing by Revenue Officer Moses, then and there to be sworn, to give testimony, and to produce for examining and copying the books, checks, records, papers and other data demanded by the summons, the examination to continue from day to day until completed. I 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 72-304 of the Local Rules of the United States District Court for the Eastern District of California. Within ten (10) 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 ten (10) 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 Bertoni Barrera, 422 S. Gateway Drive, Suite 100, Madera, California 93637. IT IS SO ORDERED.
Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE