Opinion
1:12-cv-01228-AWI-GSA
09-21-2012
UNITED STATES OF AMERICA, Petitioner, v. DENNIS JOHNS, Respondent.
BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Eastern District of California Attorneys for Petitioner United States of America
BENJAMIN B. WAGNER
United States Attorney
YOSHINORI H. T. HIMEL #66194
Assistant United States Attorney
Eastern District of California
Attorneys for Petitioner United States of America
FINDINGS AND
RECOMMENDATIONS
REGARDING I.R.S. SUMMONS
ENFORCEMENT
Taxpayer: DENNIS JOHNS
This matter came before Magistrate Judge Gary S. Austin on September 14, 2012, under the Order to Show Cause filed July 27, 2012. The order, with the verified petition filed July 25, 2012, and its supporting memorandum, was personally served upon the respondent, Dennis Johns, on August 13, 2012. Respondent did not file written opposition or non-opposition to the verified petition as provided for in the Order to Show Cause. Yoshinori H. T. Himel, Assistant United States Attorney, appeared on behalf of Petitioner, and investigating Revenue Officer Michael J. Papasergia was present. Respondent did not appear at the hearing.
The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) issued February 23, 2012. The summons is part of an investigation of the respondent's ability to pay his delinquent Form 1040 taxes for the tax years ending December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, and December 31, 2007.
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 Papasergia and the entire record, I make the following findings:
(1) The summons issued by Revenue Officer Michael J. Papasergia on February 23, 2012, and served upon respondent, Dennis Johns, on February 24, 2012, 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 collect delinquent Form 1040 taxes for the tax years ending December 31, 2003, December 31, 2004, December 31, 2005, December 31, 2006, and December 31, 2007.
(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, Dennis Johns, 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, Dennis Johns, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 4825 Coffee Road, Bakersfield, California 93308, before Revenue Officer Papasergia or his designated representative, on the twenty-first (21st) 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 Papasergia, 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 72-304 of the Local Rules of the United States District Court for the Eastern District of California. Within ten (10) 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 ten (10) 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).
The Clerk of the Court is directed to serve this and further orders by mail to Dennis Johns, 2812 Rembach Avenue, Bodfish, CA 93205-9670.
IT IS SO ORDERED.
Gary S. Austin
UNITED STATES MAGISTRATE JUDGE