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U.S. v. Mitchell

United States District Court, N.D. California
Dec 11, 2000
No. C-00-2332 PJH (N.D. Cal. Dec. 11, 2000)

Opinion

No. C-00-2332 PJH

December 11, 2000


ORDER GRANTING PETITION TO ENFORCE SUMMONS AND DENYING MOTION TO QUASH SUMMONS


Now before the court is the petition of the United States, on behalf of the Internal Revenue Service ("IRS"), and Roseann Kacheris ("Kacheris"), an IRS agent, to enforce a summons against respondent Russell L. Mitchell ("Mitchell"). Additionally, before the court is the motion of Mitchell to quash the summons. Having carefully reviewed the parties' papers and considered their arguments and the relevant legal authority, and good cause appearing, the court hereby GRANTS the petition to enforce the summons and DENIES the motion to quash for the reasons stated below.

While Mitchell identifies his motion as a motion to dismiss, the court construes said motion as a motion to quash summons.

I. BACKGROUND

IRS Agent Kacheris is investigating the tax liability of Mitchell for the 1996 tax year for which Mitchell filed an income tax return stating that he was not a taxpayer. In connection the IRS' investigation, on October 13, 1999, the IRS issued and served Mitchell with a summons to appear and to produce all relevant books, papers, records, etc., material to his financial transactions in 1996 and which effect his tax liability for that year. While Mitchell did appear on November 18, 1999, in response to the summons, he did not produce any of the books, papers, records, etc. described in the summons. Mitchell objected, and continues to object, to said production on the ground that he had no tax liability for the 1996 tax year.

As a result, on June 30, 2000, the United States filed the present verified petition to enforce the above summons. On October 10, 2000, this court, having found good cause to grant the petition to enforce the summons, issued an order to show cause why the petition should not be granted. Pursuant to the foregoing, Mitchell was to appear before this court on November 15, 2000. Apparently there was some confusion in the clerk's office which resulted in delayed service of the court's order to show cause. Mitchell appears to not have been served with the order to show cause until October 16, 2000, six days after the date for service ordered by the court.

On November 14, 2000, one day before Mitchell was to appear in connection with the order to show cause, he filed a motion to quash the summons. On that same day, petitioners filed a memorandum in support of their petition to enforce the summons. On November 15, 2000, the original date scheduled for the hearing on this matter, Mitchell advised the court by telephone that he was too ill to attend the hearing and requested that the hearing be continued. As a result of which, the court continued the hearing until November 22, 2000.

II. DISCUSSION

The IRS has authority under the Internal Revenue Code to issue summonses to investigate a taxpayer's federal income tax liability. See 26 U.S.C. § 7602. The United States district courts have jurisdiction to review petitions to enforce summonses. See 26 U.S.C. § 7604 (a) and 7609(h)(1). To enforce a summons, the IRS must establish that (1) there is a legitimate purpose for the investigation, (2) the material sought in the summons is relevant to that purpose, (3) the material sought is not already within the possession of the IRS, and (4) any administrative steps required to be taken by the IRS in connection with its investigation and the issuance of the summons have been taken. United States v. Powell, 379 U.S. 48, 57-58 (1964). Assertions by affidavit of the investigating agent that the requirements are satisfied are sufficient to establish a prima facie case that the summons should be enforced. See United States v. Samuels, Kramer Co., 712 F.2d 1342, 1345 (9th Cir. 1983). A party moving to quash the summons must then disprove the existence of a valid purpose by the IRS or that enforcement of the summons would be an abuse of the court's process. Id. at 58.

After a review of the summons and the verified petition of Agent Kacheris, the court finds that the IRS has established a prima facie case for enforcement of the summons.

Moreover, while Mitchell raises numerous arguments why the summons should not be enforced, the court finds said arguments to be without merit. Most significantly, the court finds both personal and subject matter jurisdiction to exist. It is undisputed that Mitchell is a resident of the State of California and was served with the verified petition in this case. In addition, as stated above, the district courts have jurisdiction to review petitions to enforce summonses. See 26 U.S.C. § 7604 (a) and 7609(h)(1). Furthermore, the court finds Mitchell's argument that the statute of limitations has run, See 26 U.S.C. § 6501 (c) (noting exceptions to the three-year statute of limitations in the case of a false return or of a willful attempt to evade tax) and that he is not a taxpayer, see United States v. Studley, 783 F.2d 934, 937 (9th Cir. 1986) (noting that said argument has been rejected by each and every circuit court), to be equally without merit. Finally, while the court acknowledges that service of its order to show cause appears to have been untimely, Mitchell fails to show that he was prejudiced by such untimeliness. Specifically, the court considered all of the arguments proffered in Mitchell's untimely motion to quash and continued the hearing for this matter to November 22, 2000, as Mitchell requested.

Despite the continuance of the hearing, Mitchell still failed to appear.

Based on the foregoing, the court hereby ORDERS Mitchell to comply with the subject summons.

This order fully adjudicates the petition and motion listed at numbers 1 and 6 on the clerk's docket for this case.

IT IS SO ORDERED.


Summaries of

U.S. v. Mitchell

United States District Court, N.D. California
Dec 11, 2000
No. C-00-2332 PJH (N.D. Cal. Dec. 11, 2000)
Case details for

U.S. v. Mitchell

Case Details

Full title:UNITED STATES OF AMERICA and ROSEANN KACHERIS, Revenue Agent…

Court:United States District Court, N.D. California

Date published: Dec 11, 2000

Citations

No. C-00-2332 PJH (N.D. Cal. Dec. 11, 2000)