United States of America v. Klingenberg, Jr.

Filing 13

FINDINGS and RECOMMENDATIONS re 1 Petition to Enforce IRS Summons signed by Magistrate Judge Barbara A. McAuliffe on 10/16/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 10/30/2014.(Lundstrom, T)

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: [phone]
5 Facsimile: [phone]
email: [e-mail]
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7 Attorneys for Petitioner United States of America
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IN THE UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Petitioner,

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v.

1:14-cv-01263-LJO-BAM
MAGISTRATE JUDGE'S FINDINGS AND
RECOMMENDATIONS RE: I.R.S.
SUMMONS ENFORCEMENT; ORDER
[SECOND PROPOSED]

ELDO M. KLINGENBERG, JR.,
Respondent.

Taxpayer:
ELDO M. KLINGENBERG, JR.

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This matter came on before Magistrate Judge Barbara A. McAuliffe on October 10, 2014,

20 under the Order to Show Cause filed September 5, 2014. The order, with the verified petition
21 filed August 11, 2014, and its supporting memorandum, was personally served upon the
22 Respondent, Eldo M. Klingenberg, Jr., on September 24, 2014. On October 1, 2014,
23 Respondent served a Notice of No Objection to the verified petition as provided for in the Order
24 to Show Cause. At the hearing, Yoshinori H. T. Himel, Assistant United States Attorney,
25 appeared telephonically on behalf of Petitioner, and investigating Revenue Officer Brian R.
26 Beedie was present in the courtroom. Respondent did not appear at the hearing; his attendance
27 was excused under paragraph 9 of the Order to Show Cause.
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The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce

2 an administrative summons (Exhibit A to the petition) issued August 28, 2012. The summons is
3 part of an investigation of respondent, ELDO M. KLINGENBERG, JR., to secure information
4 needed to collect assessed Form 1040 income taxes for tax years ending December 31, 1998,
5 December 31, 1999, December 31, 2000, December 31, 2001, December 31, 2002, December
6 31, 2003, December 31, 2007, and December 31, 2008.
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Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to

8 be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the
9 action. The Order to Show Cause shifted to Respondent the burden of rebutting any of the four
10 requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
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I have reviewed the petition and documents in support and considered Respondent’s “No

12 Objection.” Based on the uncontroverted verified petition by Revenue Officer Brian R. Beedie
13 and the entire record, I make the following findings:
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(1) The summons issued by Revenue Officer Brian R. Beedie on August 28, 2012, and

15 served upon Respondent, Eldo M. Klingenberg, Jr., on August 28, 2012, seeking testimony and
16 production of documents and records in respondent’s possession, was issued in good faith and
17 for a legitimate purpose under I.R.C. § 7602, that is, to secure information needed to collect
18 Form 1040 assessed income taxes for tax years ending December 31, 1998, December 31, 1999,
19 December 31, 2000, December 31, 2001, December 31, 2002, December 31, 2003, December
20 31, 2007, and December 31, 2008.
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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

23 Service.
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(4) The administrative steps required by the Internal Revenue Code have been followed.

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(5) There is no evidence of referral of this case by the Internal Revenue Service to the

26 Department of Justice for criminal prosecution.
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(6) The verified petition and its exhibits made a prima facie showing of satisfaction of the

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

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(7) The burden shifted to Respondent, Eldo M. Klingenberg. Jr., to rebut that prima facie

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

4 he consented to enforcement by the abovementioned filing.
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I therefore recommend that the IRS summons served upon Respondent, Eldo M.

6 Klingenberg, Jr., be enforced; that Respondent be ordered to file with Revenue Officer Beedie in
7 Bakersfield, California, an IRS Form 433-A ("Collection Information Statement for Wage
8 Earners and Self-Employed Individuals"), completed and signed under penalty of perjury, by the
9 twenty-first (21st) day after the filing date of the District Judge’s summons enforcement order;
10 and that Respondent be ordered to appear at the United States Attorney’s Offices at 123 North
11 San Francisco Street, Suite 410, Flagstaff, Arizona 86001, or at 4825 Coffee Road, Bakersfield,
12 California 93308, before Revenue Officer Beedie or his designated representative, on the thirty13 fifth (35th) day after the filing date of the District Judge’s summons enforcement order, or on a
14 later date to be set in writing by Revenue Officer Beedie, then and there to be sworn, to give
15 testimony, and to produce for examining and copying the books, checks, records, papers and
16 other data demanded by the summons, the examination to continue from day to day until
17 completed. Additionally, if it enforces the summons, the Court should retain jurisdiction to
18 enforce its order by its contempt power.
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These findings and recommendations are submitted to the United States District Judge

20 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 72-304 of the Local
21 Rules of the United States District Court for the Eastern District of California. Within ten (10)
22 days after being served with these findings and recommendations, any party may file written
23 objections with the court and serve a copy on all parties. Such a document should be titled
24 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections
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1 shall be served and filed within ten (10) days after service of the objections. The District Judge
2 will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The
3 parties are advised that failure to file objections within the specified time may waive the right to
4 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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THE CLERK SHALL SERVE this and further orders by mail to Eldo M. Klingenberg,

6 Jr., P.O. Box 50695, Parks, AZ 86018.
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IT IS SO ORDERED.
Dated:

October 16, 2014

/s/ Barbara

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE