United States of America v. Barrera
Filing
8
FINDINGS and RECOMMENDATIONS re: I.R.S. Summons Enforcement, signed by Magistrate Judge Sandra M. Snyder on 9/23/2013, referred to Judge O'Neill. Objections to F&R Due Within Ten Days. Pursuant to Order, address of Mr. Barrera changed to 422 S. Gateway Drive, Suite 100, Madera, California 93637. (Marrujo, C) Modified on 9/26/2013 (Rooney, M).
1 BENJAMIN B. WAGNER
United States Attorney
2 YOSHINORI H. T. HIMEL #66194
Assistant United States Attorney
3 Eastern District of California
501 I Street, Suite 10-100
4 Sacramento, CA 95814-2322
Telephone: (916) 554-2760
5 Facsimile: (916) 554-2900
email: yoshinori.himel@usdoj.gov
6
7 Attorneys for Petitioner United States of America
8
IN THE UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
UNITED STATES OF AMERICA,
Petitioner,
12
13
v.
14
BERTONI BARRERA, as sole proprietor of
EL REALITO DE ORO,
15
16
Respondent.
1:13-cv-01076-LJO-SMS
FINDINGS AND RECOMMENDATIONS
RE: I.R.S. SUMMONS ENFORCEMENT
Taxpayer:
BERTONI BARRERA
17
18
19
This matter came before Magistrate Judge Sandra M. Snyder on September 4, 2013,
20 under the Order to Show Cause filed July 18, 2013. The order, with the verified petition filed
21 July 15, 2013, and its supporting memorandum, was personally served upon the respondent,
22 Bertoni Barrera, as sole proprietor of El Realito De Oro, on July 26, 2013. Respondent did not
23 file written opposition or non-opposition to the verified petition as provided for in the Order to
24 Show Cause. Yoshinori H. T. Himel, Assistant United States Attorney, appeared by telephone
25 on behalf of Petitioner, and investigating Revenue Officer Evan D. Moses was present.
26 Respondent did not appear at the scheduled hearing; however, the Court later recalled the matter
27
28
Magistrate Judge’s Findings and Recommendations Re:
I.R.S. Summons Enforcement; Order
30
1
1 when Respondent made a late appearance. The Court advised Respondent as to what had
2 transpired at the hearing and provided him with AUSA Himel’s contact information.
The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce
3
4 an administrative summons (Exhibit A to the petition) issued March 8, 2013. The summons is
5 part of an investigation of the respondent to secure information for collection of assessed Form
6 941 Employer’s Federal Quarterly Tax for tax periods December 31, 2010, March 31, 2011, June 30,
7 2011, December 31, 2011, March 31, 2012, and June 30, 2012, and assessed Form 940 Employer
8 Annual Federal Unemployment Tax for tax periods December 31, 2010 and December 31, 2011, all
9 relating to the food service business of which Respondent Barrera is the sole proprietor.
Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to
10
11 be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the
12 action. The Order to Show Cause shifted to respondent the burden of rebutting any of the four
13 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
14
15 verified petition by Revenue Officer Moses and the entire record, I make the following findings:
(1) The summons issued by Revenue Officer Evan D. Moses on March 8, 2013, and
16
17 served upon respondent, Bertoni Barrera, on March 8, 2013, seeking testimony and production
18 of documents and records in respondent’s possession, was issued in good faith and for a
19 legitimate purpose under I.R.C. § 7602, that is, to secure information for collection of assessed
20 Form 941 Employer’s Federal Quarterly Tax for tax periods December 31, 2010, March 31, 2011, June
21 30, 2011, December 31, 2011, March 31, 2012, and June 30, 2012, and assessed Form 940 Employer
22 Annual Federal Unemployment Tax for tax periods December 31, 2010 and December 31, 2011, all for
23 Respondent's sole proprietorship.
24
(2) The information sought is relevant to that purpose.
25
(3) The information sought is not already in the possession of the Internal Revenue
26 Service.
27 ///
28
Magistrate Judge’s Findings and Recommendations Re:
I.R.S. Summons Enforcement; Order
30
2
1
(4) The administrative steps required by the Internal Revenue Code have been followed.
2
(5) There is no evidence of referral of this case by the Internal Revenue Service to the
3 Department of Justice for criminal prosecution.
4
(6) The verified petition and its exhibits made a prima facie showing of satisfaction of the
5 requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
6
(7) The burden shifted to respondent, Bertoni Barrera, to rebut that prima facie showing.
7
(8) Respondent presented no argument or evidence to rebut the prima facie showing.
8
I therefore recommend that the IRS summons served upon Respondent, Bertoni Barrera,
9 be enforced, and that Respondent be ordered to appear at the I.R.S. offices at 2525 Capitol
10 Street, Suite 205, Fresno, California 93721, before Revenue Officer Moses or his designated
11 representative, on the twenty-first (21st) day after the filing date of the District Judge’s
12 summons enforcement order, or at a later date to be set in writing by Revenue Officer Moses,
13 then and there to be sworn, to give testimony, and to produce for examining and copying the
14 books, checks, records, papers and other data demanded by the summons, the examination to
15 continue from day to day until completed. I further recommend that if it enforces the summons,
16 the Court retain jurisdiction to enforce its order by its contempt power.
17
These findings and recommendations are submitted to the United States District Judge
18 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72-304 of the Local
19 Rules of the United States District Court for the Eastern District of California. Within ten (10)
20 days after being served with these findings and recommendations, any party may file written
21 objections with the court and serve a copy on all parties. Such a document should be titled
22 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections
23 shall be served and filed within ten (10) days after service of the objections. The District Judge
24 will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The
25 parties are advised that failure to file objections within the specified time may waive the right to
26 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
27
28
Magistrate Judge’s Findings and Recommendations Re:
I.R.S. Summons Enforcement; Order
30
3
1
THE CLERK SHALL SERVE this and further orders by mail to Bertoni Barrera, 422 S.
2 Gateway Drive, Suite 100, Madera, California 93637.
3
4
5
6
7
8
9
10
11
12
13
14
IT IS SO ORDERED.
Dated:
September 23, 2013
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:
icido34h
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Magistrate Judge’s Findings and Recommendations Re:
I.R.S. Summons Enforcement; Order
30
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?