United States of America v. Nunez

Filing 4

ORDER to SHOW CAUSE Show Cause Hearing set for July 27, 2012 at 09:30 AM in Courtroom 6 (MJS) before Magistrate Judge Michael J. Seng. Show Cause Response due by July 13, 2012 signed by Magistrate Judge Michael J. Seng on 05/09/2012. (Yu, L)

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BENJAMIN B. WAGNER
United States Attorney
YOSHINORI H. T. HIMEL #66194
Assistant United States Attorney
Eastern District of California
501 I Street, Suite 10-100
Sacramento, California 95814-2322
Telephone: [phone]
Facsimile: [phone]
email: [e-mail]

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Attorneys for Petitioner United States of America

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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Petitioner,

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1:12-cv-00729-AWI-MJS
ORDER TO SHOW CAUSE RE:
TAX SUMMONS ENFORCEMENT

v.
ALVARO NUNEZ, sole proprietor,
dba BUTTONWILLOW TIRE,

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Respondent.

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TAXPAYER:
ALVARO NUNEZ, Sole Proprietor,
dba BUTTONWILLOW TIRE
Date: July 27, 2012
Time: 9:30 a.m.
Ctrm: 6, 7th Floor

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Upon the petition of BENJAMIN B. WAGNER, United States Attorney for the

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Eastern District of California, including the verification of Revenue MICHAEL J.

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PAPASERGIA, and the Exhibit A attached thereto, it is hereby:

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ORDERED that the Respondent, ALVARO NUNEZ, appear before United States

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Magistrate Judge Michael J. Seng, in that Magistrate Judge's courtroom in the United

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States Courthouse, 2500 Tulare Street, Fresno, California, on July 27, 2012, at 9:30 a.m.,

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to show cause why the respondent should not be compelled to obey the Internal Revenue

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Service summons issued on August 16, 2011.

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It is further ORDERED that:

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1. The United States Magistrate Judge will preside, under 28 U.S.C. Section

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636(b)(1) and Local Rule 72-302(c)(9), at the hearing scheduled above. After hearing,

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the Magistrate Judge intends to submit proposed findings and recommendations under

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Local Rule 304(a), with the original thereof filed by the Clerk and a copy provided to all

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parties.

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2. Under Fed. R. Civ. P. 4(c)(1), the Court hereby appoints the investigating

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Internal Revenue Service employee, and all federal employees designated by that

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employee, to serve process in this case.

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3. To afford the respondent an opportunity to respond to the petition and the

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petitioner an opportunity to reply, a copy of this order, the Verified Petition and its

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Exhibit, and the Points and Authorities, shall be served by delivering a copy to the

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respondent personally, or by leaving a copy at the respondent’s dwelling house or usual

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place of abode with some person of suitable age and discretion then residing therein, or

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by any other means of service permitted by Fed. R. Civ. P. 4(e), within 21 days of the date

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this order is served upon the United States Attorney, unless such service cannot be made

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despite reasonable efforts.

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4. Proof of any service done under paragraph 3, above, shall be filed with the
Clerk as soon as practicable.
5. If the federal employee assigned to serve these documents is not reasonably

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able to serve the papers as provided in paragraph 3, petitioner may request a court order

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granting leave to serve by other means. See Fed. R. Civ. P. 81(a)(5). The federal

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employee assigned to serve the documents shall make a certificate detailing the efforts

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made within the 21-day period to serve the respondent as provided in paragraph 3.

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6. The file reflects a prima facie showing that the investigation is conducted

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pursuant to a legitimate purpose, that the inquiry may be relevant to that purpose, that the

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information sought is not already within the Commissioner’s possession, and that the

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administrative steps required by the Code have been followed. See United States v.
ORDER TO SHOW CAUSE RE: TAX SUMMONS ENFORCEMENT

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Powell, 379 U.S. 48, 57-58 (1964). The burden of coming forward therefore has shifted

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to whoever might oppose enforcement.
7. If the respondent has any defense or opposition to the petition, such defense or

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opposition shall be made in writing and filed with the Clerk and a copy served on the

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United States Attorney at least 10 days before the date set for the show cause hearing.
8. At the show cause hearing, the Magistrate Judge intends to consider the issues

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properly raised in opposition to enforcement. Only those issues brought into controversy

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by the responsive pleadings and supported by affidavit will be considered. Any

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uncontested allegation in the petition will be considered admitted.

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9. The respondent may notify the Court, in a writing filed with the Clerk and

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served on the United States Attorney at least 10 days before the date set for the show

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cause hearing, that the respondent has no objections to enforcement of the summons. The

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respondent’s appearance at the hearing will then be excused.

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IT IS SO ORDERED.

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Dated:
ci4d6

May 9, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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ORDER TO SHOW CAUSE RE: TAX SUMMONS ENFORCEMENT

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