MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT

TAXPAYER: NATHAN D. BACON

SANDRA M. SNYDER, Magistrate Judge.

This matter came before me on November 16, 2011, under the Order to Show Cause filed August 2, 2011, which, with the verified petition and memorandum, was personally served upon respondent on September 15, 2011. Respondent did not file written opposition.

At the hearing, Yoshinori H. T. Himel appeared telephonically for petitioner, and investigating Revenue Officer Michael Nicholas was present. Respondent did not appear.

The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to enforce an administrative summons (Exhibit A to the petition) in aid of Revenue Officer Nicholas' investigation of Nathan D. Bacon to determine his correct liabilities for personal income tax for the tax years ending December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2009.

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 Revenue Officer Nicholas and the entire record, I make the following findings:

(1) The summons issued by Revenue Officer Martha Rodriguez to respondent, Nathan D. Bacon, on January 7, 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 determine his correct liabilities for personal income tax for the tax years ending December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2009.

(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, Nathan D. Bacon, 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 issued to respondent, Nathan D. Bacon, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 1533 Lakewood Avenue, Modesto, California 95355, before Revenue Officer Michael Nicholas, or his designated representative, twenty-one (21) days after the issuance of the order, or at a later date to be set in writing by Revenue Officer Nicholas, 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).

IT IS SO ORDERED.