Opinion
1:12-cv-00733-LJO-DLB
07-31-2012
UNITED STATES OF AMERICA, Petitioner, v. MICHAEL G. BOYD, Respondent.
BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Attorneys for Petitioner United States of America
BENJAMIN B. WAGNER
United States Attorney
YOSHINORI H. T. HIMEL #66194
Assistant United States Attorney
Attorneys for Petitioner United States of America
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE:
I.R.S. SUMMONS ENFORCEMENT; ORDER
TAXPAYER: MICHAEL G. BOYD
This matter came before me on July 20, 2012, under the Order to Show Cause filed May 10, 2012, which, with the verified petition and memorandum, was personally served upon respondent on June 1, 2012. Respondent did not file written opposition to the verified petition filed May 4, 2012. Yoshinori Himel, Assistant United States Attorney, appeared for petitioner, and investigating Revenue Officer David M. Lopez was present. Respondent did not appear at the hearing.
The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition), issued November 8, 2011, to collect Form 1040 delinquent taxes for the tax years ending December 31, 2001, December 31, 2002, and December 31, 2004.
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 verified petition and the documents in its support. On the summons enforcement merits, based on the uncontroverted verification of the petition by Revenue Officer Ramos and the entire record, I find as follows:
(1) The summons issued by Revenue Officer David M. Lopez to respondent, Michael G. Boyd, on November 8, 2011, 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 collect Form 1040 delinquent taxes for the tax years ending December 31, 2001, December 31, 2002, and December 31, 2004.
(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, Michael G. Boyd, 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 issued to Respondent, Michael G. Boyd, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721-2227, before Revenue Officer David M. Lopez, 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 Lopez, 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 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 seven (7) 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 Michael G. Boyd, at 39121 Manzanita, Bass Lake, CA 93604-0703.
IT IS SO ORDERED.
Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE