Opinion
1:15-CV-00475-LJO-MJS
07-01-2015
UNITED STATES OF AMERICA, Petitioner, v. GLENN R. WILSON, individually and as sole proprietor of FAMILY LAW FRESNO COM, Respondent.
BENJAMIN B. WAGNER United States Attorney BOBBIE J. MONTOYA Assistant United States Attorney Eastern District of California 501 I Street, Suite 10-100 Sacramento, CA 95814-2322 Telephone: (916) 554-2775 Facsimile: (916) 554-2900 email: bobbie.montoya@usdoj.gov Attorneys for Petitioner United States of America
BENJAMIN B. WAGNER
United States Attorney
BOBBIE J. MONTOYA
Assistant United States Attorney
Eastern District of California
501 I Street, Suite 10-100
Sacramento, CA 95814-2322
Telephone: (916) 554-2775
Facsimile: (916) 554-2900
email: bobbie.montoya@usdoj.gov
Attorneys for Petitioner United States of America
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT
Taxpayer: GLENN R. WILSON
This matter came on before Magistrate Judge Michael J. Seng on June 12, 2015, under the Order to Show Cause filed March 27, 2015. Dkt. 5. The order, with the verified petition filed March 26, 2015 (Dkt. 1), and its supporting memorandum (Dkt. 4-1), was personally served on Respondent, at his business address located at 2141 Tuolumne Street, Suite B, Fresno, California 93721, on April 2, 2015. Dkt. 6. Respondent did not file opposition or non-opposition to the verified petition as provided for in the Order to Show Cause. At the hearing, Bobbie J. Montoya, Assistant United States Attorney, appeared on behalf of Petitioner, and investigating Revenue Officer Lori L. Minjarez also was present in the courtroom. Respondent's Counsel Mark Coleman made a special appearance on behalf of Respondent, due to a conflict on his calendar rendering him unavailable to attend the show cause hearing.
The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the Petition) issued January 22, 2014. The summons is part of an investigation of the respondent to secure information needed to collect assessed Form 940 Employer Annual Federal Unemployment Tax for calendar periods ending December 31, 2004, and December 31, 2012; Form 941 Employer's Federal Quarterly Tax for the quarterly periods ending June 30, 2004, June 30, 2005, September 30, 2005, December 31, 2005, March 31, 2006, June 30, 2006, September 30, 2006, December 31, 2006, June 30, 2007, September 30, 2007, March 31, 2008, March 31, 2009, June 30, 2009, September 30, 2009, December 31, 2009, March 31, 2010, June 30, 2010, June 30, 2012 and September 30, 2012; and Form CIVPEN for the calendar periods ending December 31, 2005, December 31, 2006, December 31, 2008, and December 31, 2010, all relating to respondent's sole proprietor law practice.
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 verified petition by Revenue Officer Lori L. Minjarez and the entire record, I make the following findings:
(1) The summons issued by Revenue Officer Lori L. Minjarez on January 22, 2014, and served upon Respondent, on January 22, 2014, 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 secure information needed to collect assessed Form 940 Employer Annual Federal Unemployment Tax for calendar periods ending December 31, 2004, and December 31, 2012; Form 941 Employer's Federal Quarterly Tax for the quarterly periods ending June 30, 2004, June 30, 2005, September 30, 2005, December 31, 2005, March 31, 2006, June 30, 2006, September 30, 2006, December 31, 2006, June 30, 2007, September 30, 2007, March 31, 2008, March 31, 2009, June 30, 2009, September 30, 2009, December 31, 2009, March 31, 2010, June 30, 2010, June 30, 2012 and September 30, 2012; and Form CIVPEN for the calendar periods ending December 31, 2005, December 31, 2006, December 31, 2008, and December 31, 2010, all relating to respondent's sole proprietor law practice.
(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, Glenn R. Wilson, to rebut that prima facie showing.
(8) Respondent's specially-appearing counsel presented no argument or evidence to rebut the prima facie showing.
I therefore recommend that the IRS summons served upon Respondent, be enforced; and that Respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 205, Fresno, California, before Revenue Officer (RO) Minjarez or her designated representative, on June 30, 2015, at 10:00 a.m., as agreed to by RO Minjarez and Respondent's specially-appearing Counsel Mark Coleman at the show cause hearing. RO Minjarez is to mail IRS Form 433-A ("Collection Information Statement for Wage Earners and Self-Employed Individuals") immediately to Respondent. Respondent is to fill out the form and attach all documents requested therein, complete the form, sign it under penalty of perjury, and take it to the June 30 appearance at I.R.S. Should the June 30, 2015, appearance need to be continued or rescheduled, it should be set in writing for a later date by RO Minjarez. Respondent is to appear before RO Minjarez or her designated representative, 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 304 of the Local Rules of the United States District Court for the Eastern District of California. Within fourteen (14) 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 fourteen (14) 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 SHALL SERVE this and further orders by mail to Glenn R. Wilson at his business located at 2141 Tuolumne Street, Suite B, Fresno, California 93721-1235. IT IS SO ORDERED.
Dated: July 1, 2015
/s/ Michael J . Seng
UNITED STATES MAGISTRATE JUDGE