Opinion
1:12-cv-00697-LJO-DLB
07-31-2012
UNITED STATES OF AMERICA, Petitioner, v. ORALIA MAYA, 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 AND ORDER
TAXPAYER: ORALIA MAYA
This matter came before Magistrate Judge Dennis L. Beck, 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 the respondent, Oralia Maya, on May 30, 2012. Respondent did not file written opposition. Yoshinori H. T. Himel, Assistant United States Attorney, appeared for petitioners; investigating Revenue Officer Lisa R. Cumiford was present. Respondent appeared for herself. She did not oppose the enforcement of the I.R.S. summons, and she agreed to appear and comply on August 1, 2012, at 9:30 a.m., at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721-2227.
The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons, Exhibit A to the petition. The summons seeks information to aid Revenue Officer Cumiford's investigation to determine financial information for the collection of assessed Form 940 Employer Annual Federal Unemployment Tax for the period ending December 31, 2007 and Form 943 Employer's Annual Tax for Agricultural Employees for the taxable periods ending December 31, 2006, December 31, 2007, December 31, 2008, December 31, 2009 and December 31, 2010.
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 verification of the petition by Revenue Officer Cumiford and the entire record, I make the following findings:
(1) The summons issued by Revenue Officer Lisa R. Cumiford on August 10, 2011, and served upon respondent, Oralia Maya, on August 10, 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 determine financial information for the collection of assessed Form 940 Employer Annual Federal Unemployment Tax for the period ending December 31, 2007 and Form 943 Employer's Annual Tax for Agricultural Employees for the taxable periods ending December 31,
2006, December 31, 2007, December 31, 2008, December 31, 2009 and December 31, 2010.
(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, Oralia Maya, 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, Oralia Maya, be enforced, and that respondent be ordered to appear, on the twenty-first (21) 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 Cumiford, at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721-2227, before Revenue Officer Cumiford or her designated representative, 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).
Respondent Oralia Maya SHALL APPEAR at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, California 93721-2227, on August 1, 2012, at 9:30 a.m.
THE CLERK SHALL SERVE this and further orders by mail to Oralia Maya, 11364 Fern Street, Madera, CA 93638-5808.
IT IS SO ORDERED.
Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE