Opinion
ORDER GRANTING PETITION TO ENFORCE IRS SUMMONSES; VACATING HEARING
MAXINE CHESNEY, District Judge.
On April 27, 2004, the Court issued an order to show cause why respondent Catarino Pelayo ("Pelayo") should not be compelled to appear before the Internal Revenue Service ("IRS") to provide documents and testimony as required by the summonses served upon him. (See Order to Show Cause, filed April 27, 2004.) The Court ordered Pelayo to appear before the Court on June 11, 2004 at 9:00 a.m., and also ordered that, no later than May 21, 2004, Pelayo could file a written response to the order to show cause, supported by appropriate declarations or affidavits, or any motion he desired to make. (See id. at 1-2.) The Court further ordered that "only those issues raised by motion or brought into controversy by the responsive pleadings and supported by affidavit(s) or declaration(s) will be considered at the return of this Order, and any uncontested allegations will be considered admitted." (See id. at 2.)
To date, Pelayo has not filed a response to the order to show cause, or otherwise appeared in this action. As Pelayo has not timely contested any of the allegations in the government's petition, there is no need for a hearing, and the June 11, 2004 hearing on this matter is hereby VACATED.
An IRS summons may be issued for the purpose of ascertaining the correctness of any tax return, making a return where none has been made, determining the liability of any person for any internal revenue tax, or collecting any such liability. See 26 U.S.C. § 7602(a). This Court has jurisdiction to compel compliance with an IRS summons. See 26 U.S.C. §§ 7402(b) and 7604(a).
Enforcement of an IRS summons is generally a summary proceeding to which a taxpayer has few defenses. See United States v. Derr , 968 F.2d 943, 945 (9th Cir. 1992). To obtain enforcement of a summons, the IRS must first establish its good faith by showing that the summons: (1) is issued for a legitimate purpose; (2) seeks information relevant to that purpose; (3) seeks information that is not already within the possession of the IRS; and (4) satisfies all administrative steps required by the United States Code. See Fortney v. United States , 59 F.3d 117, 119 (9th Cir. 1995) (citing United States v. Powell , 379 U.S. 48, 57-58 (1964)). The government's burden is a slight one and typically is satisfied by the introduction of a sworn declaration of the revenue agent who issued the summons that the Powell requirements have been met. See id. at 120. The Court finds that the IRS has met its burden.
Once a prima facie case is made, a heavy burden is placed on the taxpayer to show an abuse of process or the lack of institutional good faith. See id. Once the government has established the Powell requirements, the taxpayer must disprove the actual existence of a valid civil tax determination or collection purpose by the IRS. See United States v. Jose , 131 F.3d 1325, 1328 (9th Cir. 1997) (en banc). The taxpayer must allege specific facts and evidence to support his allegations of bad faith or improper purpose. See id. As Pelayo has failed to respond to the order to show cause or to the petition, he has not met his burden.
Accordingly, the petition for enforcement of IRS summonses is hereby GRANTED, and Pelayo is ORDERED to appear before IRS Revenue Officer R. Jacquez Jr. ("Jacquez") at the IRS office at 1301 Clay Street, Suite 1040S, Oakland, CA 94612, at such time as Jacquez notifies Pelayo is convenient for the IRS. At that time, Pelayo shall answer the IRS officer's questions and produce the documents requested in the summonses. If Pelayo fails to do so, the Court may hold Pelayo in contempt of court, pursuant to 26 U.S.C. § 7604(b), and impose such other sanctions as are permitted by law.
The Clerk shall close the file.
IT IS SO ORDERED.