Opinion
No. 8:01-MC-68-T-24MAP
August 30, 2001
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on the government's Petition to Enforce an Internal Revenue Service Summons (doc. 1). On March 11, 1999, I issued an order directing Respondent to appear before me on August 30, 2001, and demonstrate why she should not be compelled to comply with the summons (doc. 3). Respondent filed an Answer to Petition to Enforce Internal Revenue Service Summons (doc. 4) and appeared at the hearing pro se. She admitted she had not complied with the summons and addressed a number of reasons why she should not be compelled to do so.
This matter is referred to me pursuant to Local Rule 6.01(c)(11).
In sum, Respondent argues that (1) the action is barred for lack of subject matter jurisdiction; (2) the United States of America is not an entity that exists in any capacity to sue or be sued; (3) without a valid internal revenue district covering Pinellas County, Florida, no representative of the IRS has the authority to issue or enforce any summons on Respondent; (4) no authority exists under 26 U.S.C. § 7402 and 7406 to commence this action; (5) Rosemary Reinhard is not authorized to issue a summons pursuant to 26 U.S.C. § 7602; (6) she is not required to keep books and records pursuant to 26 C.F.R. § 1.6001-1(d); and (7) no "taxable income" exists for the years in question.
To obtain judicial enforcement of an internal Revenue Service summons, the government must show: (1) the IRS investigation is being conducted for a proper purpose; (2) the inquiry may be relevant to the purpose; (3) the information sought is not already within the Commissioner's possession; and (4) the administrative steps required by the internal Revenue Code have been followed. United States v. Powell, 379 U.S. 48, 57-58 (1964); United Stases v. Medlin, 986 F.2d 463, 466(11th Cir. 1992), cert. denied, 510 U.S. (1993). The government can satisfy its Powell burden simply by presenting a sworn affidavit of the agent who issued the summons attesting to these facts. Medlin, 986 F.2d at 466. Once the IRS makes this showing, the burden shifts to the party contesting the summons to disprove at least one of Powell's four elements. Alternatively, the protesting party could convince the court that the judicial enforcement would constitute an abuse of the court's process. Id. In any event, the burden on the contesting party is a heavy one which requires allegations of specific facts and the introduction of evidence. United States v. Leventhal, 961 F.2d 936, 939(11th Cir. 1992).
Respondent's primary contentions are the government is without jurisdiction and the government cannot show Powell proof because there is no "legal and lawful" internal revenue district in place covering Pinellas County, Florida to issue the summons. After consideration, I find she has not met her burden of disproving the government's case. Respondent also has not convincingly argued that enforcing the summons would be an abuse of process by the court. It is therefore
RECOMMENDED that:
1. The government's Petition to Enforce the Internal Revenue Service Summons (doc. 1) be GRANTED.
IT IS SO RECOMMENDED in chambers at Tampa, Florida.
NOTICE TO PARTIES
Failure to file and serve written objections to the proposed findings and recommendations contained in this report within ten (10) days from the date it is served on the parties shall bar an aggrieved party from a de novo determination by the District Court of issues covered in the report, and shall bar the party from attacking on appeal factual findings in the report accepted or adopted on appeal by the District Court except upon grounds of plain error or manifest injustice. 28 U.S.C. § 636(b)(1)(C); Local Rule 6.02; Nettles v. Wainwright, 677 F.2d 404(5th Cir. 1982)( en banc).