Opinion
No. C-08-3714 MMC.
March 6, 2009
Before the Court is petitioners' Verified Petition to Enforce Internal Revenue Service Summonses, filed August 4, 2008. Respondent Theodore Padua ("Padua") has filed a response consisting of a copy of a letter Padua wrote to the Secretary of the Treasury, in which Padua asserts the instant action is a "legal fiction" and includes a demand that the instant action be "closed." Petitioners have filed a reply thereto. Having read and considered the papers filed in support of and in response to the petition, the Court deems the matter suitable for decision on said submissions, VACATES the hearing scheduled for March 13, 2009, and rules as follows.
The above-titled action was reassigned to the undersigned on January 23, 2009.
For the reasons stated by petitioners, the Court finds enforcement of the summonses attached to the petition as Exhibits A and B is proper. Further, for the reasons stated by petitioners, the Court finds it unnecessary to conduct an evidentiary hearing on the matter, specifically, for the reason Padua has failed to offer any evidence in opposition to the petition, much less evidence to support a finding the summonses, or either of them, "were issued for an improper purpose." See Fortney v. United States, 59 F.3d 117, 121 (9th Cir. 1995) (holding party challenging issuance of Internal Revenue Service summons not entitled to evidentiary hearing where party failed to offer evidence to support finding IRS was not acting in good faith).
Accordingly, the petition is hereby GRANTED, and Padua is hereby ORDERED to appear before Revenue Officer Fukekila Merrida, or any designated agent, on April 10, 2009, at 9:00 a.m., at the Offices of the Internal Revenue Service, 450 Golden Gate Avenue, 6th Floor, San Francisco, California, 94102, and then and there give testimony relating to the matters described in the subject Internal Revenue Service summonses, copies of which are attached hereto as Exhibits A and B, and produce for the Revenue Officer's inspection and copying the records described in the attached Internal Revenue Service summonses.
Failure to comply with the instant order may be grounds for a finding of contempt. See, e.g., United States v. Ayres, 166 F.3d 991, 994-96 (9th Cir. 1999) (affirming finding of contempt, where party failed to comply with court order directing him to provide testimony and produce records to IRS).
IT IS SO ORDERED.
EXHIBIT A Summons
In the matter of Theodore Padua, 930 Mission Road Number 44, S San Francisco, CA 94080Internal Revenue Service (Division): Small Business/Self Employed
Industry/Area (name or number): Small Business/Self Employed — Non SBSE Field Area
Periods: Form 1040, Income tax Return year: 2002
The Commissioner of Internal Revenue
To: Theodore PaduaAt: 930 Mission Road Number 44, S San Francisco, CA 94080
You are hereby summoned and required to appear before Fukekila Merrida, an officer of the Internal Revenue Service, to give testimony and to bring with you and to produce for examination the following books, records, papers, and other data relating to the tax liability or the collection of the tax liability or for the purpose of inquiring into any offense connected with the administration or enforcement of the internal revenue laws concerning the person identified above for the periods shown.
All documents in your possession and control reflecting the assets and liabilities of the above named taxpayer(s) including, but not limited to, the following: all bank statements, checkbooks, canceled checks, savings account passbooks, and records of certificates of deposit, for the period November 15, 2007 to November 28, 2007, regarding accounts or assets held in the name of the taxpayer(s) or held for the benefit of the taxpayer(s); all records or documents regarding stocks and bonds, deeds or contracts regarding real property, current registration certificates for motor vehicles, and life or health insurance policies currently in force, any of which items are owned, wholly or partially, by the taxpayer(s), or in which the taxpayer(s) have a security interest, or held for the benefit of either or both of the taxpayer(s), so that a current Collection Information Statement may be prepared. A blank copy of such Collection Information Statement is attached hereto to guide you in the production of the necessary documents and records.
Do not write in this space
Business address and telephone number of IRS officer before whom you are to appear: 450 Golden Gate Ave. 6th floor-1800, San Francisco, 94102 (415) 522-4614 Place and time for appearance at 450 Golden Gate Ave, 6th floor-1800, San Francisco, 94102 on the 28th day of November 2007 at 10:00 o'clock A m. Issued under authority of the Internal Revenue Code this 16 day of November 2007 Internal Revenue Service www.irs.gov Revenue Officer (if applicable)
, IRS , Department of the Treasury ________________________________________________________ ____________________ Signature of Issuing Officer Title Form 2039 (Rev. 12-2001) Catalog Number 21405J ________________________________________________________ _____________________________________________ Signature of Approving Officer TitleEXHIBIT A Summons
In the matter of Theodore Padua, 930 Mission Road Number 44, S San Francisco, CA 94080Internal Revenue Service (Division): Small Business/Self Employed
Industry/Area (name or number): Small Business/Self Employed — Non SBSE Field Area
Periods: Form 1040. Income Tax Return years: 2003, 2004, 2005 and 2006
The Commissioner of Internal Revenue
To: Theodore PaduaAt: 930 Mission Road S San Francisco, CA 94080
You are hereby summoned and required to appear before Fukekila Merrida, an officer of the Internal Revenue Service, to give testimony and to bring with you and to produce for examination the following books, records, papers, and other data relating to the tax liability or the collection of the tax liability or for the purpose of inquiring into any offense connected with the administration or enforcement of the internal revenue laws concerning the person identified above for the periods shown.
All documents and records in your possession or control reflecting the receipt of taxable income by you for the year(s) Form 1040, Income Tax Return years: 2003, 2004, 2005 and 2006 , including but not limited to: statement of wages for the year(s) Form 1040. Income Tax Return years: 2003, 2004, 2005 and 2006 , statements regarding interest or dividend income for the year(s) Form 1040, Income Tax Return years: 2003, 2004, 2005 and 2006 ; employee earnings statements for the year(s) Form 1040, Income Tax Return years: 2003, 2004, 2005 and 2006 ; records of deposits to bank accounts during the year(s) Form 1040. Income Tax Return years: 2003, 2004, 2005 and 2006 ; and any and all other books, records, documents, and receipts regarding wages, salaries, tips, fees, commissions, and any other compensation for services (including gains from dealings in property, interest, rental, royalty and dividend income, alimony, annuities, income life insurance policies and endowment contracts, pensions, income from the discharge of indebtedness, distributive shares of partnership gross income, and income from an estate or trust), so that Federal Income Tax liability for the year(s) Form 1040. Income Tax Return years: 2003, 2004, 2005 and 2006 (for which year(s) no return have been made) may be determined.
Do not write in this space
Business address and telephone number of IRS officer before whom you are to appear: 450 Golden Gate Ave. 6th floor-1800, San Francisco, 94102 (415) 522-4614 Place and time for appearance at 450 Golden Gate Ave, 6th floor-1800, San Francisco, 94102 on the 28th day of November 2007 at 9:00 o'clock A m. IRS Issued under authority of the Internal Revenue Code this 16 day of November 2007 Internal Revenue Service www.irs.gov Revenue Officer (if applicable)
, , Department of the Treasury _____________________________________________________ _______________ Signature of Issuing Officer Title Form 2039 (Rev. 12-2001) Catalog Number 21405J _____________________________________________________ ________________________________________ Signature of Approving Officer Title