Opinion
Case No. 2:11-mc-00068-MCE-DAD
08-01-2011
UNITED STATES OF AMERICA, and KIM ULRING, Revenue Officer, Internal Revenue Service, Petitioners, v. EVERETT D. CALHOUN, Respondent.
BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Eastern District of California
BENJAMIN B. WAGNER
United States Attorney
YOSHINORI H. T. HIMEL #66194
Assistant United States Attorney
Eastern District of California
ORDER TO SHOW CAUSE RE: TAX SUMMONS ENFORCEMENT
Taxpayer: EVERETT D. CALHOUN
Time: 10:00 a.m.
Ctrm: #27 (8th Floor)
(Honorable Dale A. Drozd)
Upon the petition of BENJAMIN B. WAGNER, United States Attorney for the Eastern District of California, and the Exhibit attached thereto, including the verification of Revenue Officer KIM ULRING, it is hereby:
ORDERED that the Respondent, EVERETT D. CALHOUN, appear before United States Magistrate Judge Dale A. Drozd, in that Magistrate Judge's courtroom in the United States Courthouse, 501 I Street, Sacramento, California, on Friday, September 30, 2011, at 10:00 a.m., to show cause why the respondent should not be compelled to obey the Internal Revenue Service summons issued on April 20, 2011.
It is further ORDERED that:
1. The United States Magistrate Judge will preside, under 28 U.S.C. Section 636(b)(1) and Local Rule 72-302(c)(9), at the hearing scheduled above. After hearing, the Magistrate Judge intends to submit proposed findings and recommendations under Local Rule 304(a), with the original thereof filed by the Clerk and a copy provided to all parties.
2. The Court hereby appoints the group manager of the petitioning Internal Revenue Service employee, and all federal employees designated by that group manager, under Fed. R. Civ. P. 4(c)(1), to serve process in this case.
3. A copy of this order, the Verified Petition and its Exhibit, and the Points and Authorities, shall be served by delivering a copy to the respondent personally or by leaving a copy at the respondent's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by any other means of service permitted by Fed. R. Civ. P. 4(e), within 21 days of the date this order is served upon the United States Attorney, unless such service cannot be made despite reasonable efforts.
4. If the federal employee assigned to serve these documents is unable to serve the papers as provided in paragraph 3, despite making reasonable efforts to do so, petitioners may request a court order granting leave to serve by other means. See Fed. R. Civ. P. 81(a)(5). The federal employee assigned to serve the documents shall make a certificate detailing the efforts made within the 21-day period to serve the respondent as provided in paragraph 3.
5. Proof of any service done pursuant to paragraph 3 or 4, above, shall be filed with the Clerk as soon as practicable.
6. The file reflects a prima facie showing that the investigation is conducted pursuant to a legitimate purpose, that the inquiry may be relevant to that purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed. United States v. Powell, 379 U.S. 48, 57-58 (1964). The burden of coming forward therefore has shifted to whoever might oppose enforcement.
7. If the respondent has any defense or opposition to the petition, such defense or opposition shall be made in writing and filed with the Clerk and a copy served on the United States Attorney at least 10 days prior to the date set for the show cause hearing.
8. At the show cause hearing, the Magistrate Judge intends to consider the issues properly raised in opposition to enforcement. Only those issues brought into controversy by the responsive pleadings and supported by affidavit will be considered. Any uncontested allegation in the petition will be considered admitted.
9. The respondent may notify the Court, in a writing filed with the Clerk and served on the United States Attorney at least 10 days prior to the date set for the show cause hearing, that the respondent has no objections to enforcement of the summons. The respondent's appearance at the hearing will then be excused.
DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE