FINDINGS AND RECOMMENDATIONS RE:I.R.S. SUMMONS ENFORCEMENT (Doc. 7)

ORDER DIRECTING CLERK TO SERVE RESPONDENT BY MAIL

TAXPAYER: KENDALL O. BATES P.O. Box 25335 Fresno, CA 93729-5335

SANDRA M. SNYDER, Magistrate Judge.

This matter came on regularly for hearing on July 18, 2012 at 10:00 a.m. in Courtroom No. 1 before the Honorable Sandra M. Snyder, United States Magistrate Judge, pursuant to an Order to Show Cause filed May 4, 2012 (Doc. 4). Respondent, Kendall O. Bates, did not appear nor file written opposition to the verified petition filed May 1, 2012 (Doc. 1). Assistant United States Attorney Benjamin E. Hall appeared, in the place and instead of Assistant United States Attorney Yoshinori T. Himel, on behalf of Petitioner. Internal Revenue Service Investigating Revenue Officer Lorena Ramos also appeared.

The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) issued August 5, 2011, to secure payment of assessed income tax liabilities for Respondent, Kendall O. Bates, for the tax years ending December 31, 2000, December 31, 2001, December 31, 2003, December 31, 2004, December 31, 2005, and December 31, 2006.

Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the Government to bring this action. The Order to Show Cause shifted the burden to Respondent of rebutting any of the four (4) requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).

This Court has reviewed the verified petition and the documents filed in support thereof. On the summons enforcement merits, based on the uncontroverted verification of the petition by Revenue Officer Ramos and the entire record, the Court finds as follows:

(1) The summons issued to Respondent, Kendall O. Bates, by Revenue Officer Lorena Ramos on August 5, 2011, 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 payment of assessed income tax liabilities for Respondent, Kendall O. Bates, for the tax years ending December 31, 2000,

December 31, 2001, December 31, 2003, December 31, 2004, December 31, 2005, and December 31, 2006.

(2) The information sought is relevant for 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 make 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, Kendall O. Bates, to rebut the prima facie showing.

(8) Respondent has presented no argument or evidence to rebut the prima facie showing.

Therefore, it is HEREBY RECOMMENDED that:

(1) The IRS summons issued to Respondent, Kendall O. Bates, be enforced;

(2) Respondent, Kendall O. Bates, be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 206, Fresno, CA, 93721-2227, before Revenue Officer Lorena Ramos, or her 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 Ramos, 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; and,

(3) If the Court enforces the summons, the Court shall 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 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 filed and served 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 is DIRECTED to serve Respondent, Kendall O. Bates, P.O. Box 25335, Fresno, CA, 93729-5335.

IT IS SO ORDERED.