United States of America v. Boyd

Filing 8

Magistrate Judge's FINDINGS and RECOMMENDATIONS re: I.R.S. Summons Enforcement; ORDER, signed by Magistrate Judge Dennis L. Beck on 7/31/2012. Matter referred to Judge O'Neill. Objections to F&R due by 8/20/2012. (Figueroa, O)

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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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1:12-cv-00733-LJO-DLB

Petitioner,
MAGISTRATE JUDGE’S FINDINGS
AND RECOMMENDATIONS RE:
I.R.S. SUMMONS ENFORCEMENT;
ORDER

v.
MICHAEL G. BOYD,
Respondent.

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TAXPAYER: MICHAEL G. BOYD

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This matter came before me on July 20, 2012, under the Order to Show Cause filed
May 10, 2012, which, with the verified petition and memorandum, was personally served
upon respondent on June 1, 2012. Respondent did not file written opposition to the
verified petition filed May 4, 2012. Yoshinori Himel, Assistant United States Attorney,
appeared for petitioner, and investigating Revenue Officer David M. Lopez was present.
Respondent did not appear at the hearing.
The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks
to enforce an administrative summons (Exhibit A to the petition), issued November 8,

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Magistrate Judge’s Findings and
Recommendations Re: I.R.S.
Summons Enforcement

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2011, to collect Form 1040 delinquent taxes for the tax years ending December 31, 2001,

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December 31, 2002, and December 31, 2004.

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Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is

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found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government

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to bring the action. The Order to Show Cause shifted to respondent the burden of

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rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58

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(1964).

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I have reviewed the verified petition and the documents in its support. On the
summons enforcement merits, based on the uncontroverted verification of the petition by
Revenue Officer Ramos and the entire record, I find as follows:

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(1) The summons issued by Revenue Officer David M. Lopez to respondent,

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Michael G. Boyd, on November 8, 2011, seeking testimony and production of documents

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and records in respondent’s possession, was issued in good faith and for a legitimate

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purpose under I.R.C. § 7602, that is, to collect Form 1040 delinquent taxes for the tax

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years ending December 31, 2001, December 31, 2002, and December 31, 2004.

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(2) The information sought is relevant to that purpose.

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(3) The information sought is not already in the possession of the Internal Revenue

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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.

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(6) The verified petition and its exhibits made a prima facie showing of

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satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).

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Magistrate Judge’s Findings and
Recommendations Re: I.R.S.
Summons Enforcement

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(7) The burden shifted to respondent, Michael G. Boyd, 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, Michael G.

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Boyd, be enforced, and that respondent be ordered to appear at the I.R.S. offices at 2525

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Capitol Street, Suite 206, Fresno, California 93721-2227, before Revenue Officer David

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M. Lopez, or his designated representative, on the twenty-first (21st) day after the filing

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date of the District Judge's summons enforcement order, or at a later date to be set in

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writing by Revenue Officer Lopez, then and there to be sworn, to give testimony, and to

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produce for examining and copying the books, checks, records, papers and other data

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demanded by the summons, the examination to continue from day to day until completed.

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I further recommend that if it enforces the summons, the Court retain jurisdiction to

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enforce its order by its contempt power.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the

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Local Rules of the United States District Court for the Eastern District of California.

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Within fourteen (14) days after being served with these findings and recommendations,

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any party may file written objections with the court and serve a copy on all parties. Such

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a document should be titled "Objections to Magistrate Judge's Findings and

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Recommendations." Any reply to the objections shall be served and filed within seven

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(7) days after service of the objections. The District Judge will then review these findings

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and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the

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District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Magistrate Judge’s Findings and
Recommendations Re: I.R.S.
Summons Enforcement

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THE CLERK SHALL SERVE this and further orders by mail to Michael G. Boyd,

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at 39121 Manzanita, Bass Lake, CA 93604-0703.
IT IS SO ORDERED.
Dated:

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July 31, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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Magistrate Judge’s Findings and
Recommendations Re: I.R.S.
Summons Enforcement

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