United States of America v. Rios et al

Filing 4

ORDER to SHOW CAUSE re: Tax Summons Enforcement signed by Magistrate Judge Gary S. Austin on 3/23/2015. Show Cause Hearing set for 6/12/2015 at 09:30 AM in Courtroom 10 (GSA) before Magistrate Judge Gary S. Austin. (Martinez, A)

1 BENJAMIN B. WAGNER
United States Attorney
2 BOBBIE J. MONTOYA
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]
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

ORDER TO SHOW CAUSE RE: TAX
SUMMONS ENFORCEMENT

v.

13
14

1:15-cv-00417-LJO-GSA

ARMANDO RIOS, MARIO DISALVO,
President, D & R MARKETING, INC.,

Taxpayer: ARMANDO RIOS

15
16

Respondents.
17

Date: June 12, 2015
Time: 9:30 a.m.
Ctrm: 10, 6th Floor

18
19

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

20 District of California, including the verification of Revenue Officer Evan D. Moses, and the
21 Exhibit attached thereto, it is hereby:
22

ORDERED that respondent Armando Rios and respondent Mario DiSalvo, President and

23 Owner of D&R Marketing, Inc., appear before United States Magistrate Judge Gary S. Austin,
24 in Courtroom 10 in the United States Courthouse, 2500 Tulare Street, Fresno, California, on
25 June 12, at 9:30 a.m., to show cause why the respondents should not be compelled to obey the
26 Internal Revenue Service summonses issued on June 26 and June 27, 2013, to respondent
27 Armando Rios and respondent Mario DiSalvo, President and Owner of D&R Marketing, Inc.,
28 respectively.
ORDER TO SHOW CAUSE RE: TAX SUMMONS
ENFORCEMENT

1

1

It is further ORDERED that:

2

1.

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

3 636(b)(1) and Local Rule 72-302(c)(9), at the hearing scheduled above. After hearing, the
4 Magistrate Judge intends to submit proposed findings and recommendations under Local Rule
5 304(a), with the original thereof filed by the Clerk and a copy provided to all parties.

2.

6

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

7 Revenue Service employee, and all federal employees designated by that employee, to serve

8 process in this case.

3.

9

To afford each respondent an opportunity to respond to the petition and the

10 petitioner an opportunity to reply, a copy of this order, the Verified Petition and its Exhibits, and
11 the Points and Authorities, shall be served by delivering a copy to each respondent personally,
12 or by leaving a copy at the respondents’ respective dwelling house or usual place of abode with
13 a person of suitable age and discretion then residing therein, or by any other means of service
14 permitted by Fed. R. Civ. P. 4(e), at least 30 days before the show cause hearing date including

15 any continued date, unless such service cannot be made despite reasonable efforts.

4.

16

Proof of any service done under paragraph 3, above, shall be filed with the Clerk

17 as soon as practicable.

5.

18

If the federal employee assigned to serve these documents is not reasonably able

19 to serve the papers as provided in paragraph 3, petitioner may request a court order granting
20 leave to serve by other means. See Fed. R. Civ. P. 81(a)(5). The request shall detail the efforts
21 made to serve the respondent(s).

6.

22

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

23 for a legitimate purpose, that the inquiry may be relevant to that purpose, that the information
24 sought is not already within the Commissioner’s possession, and that the administrative steps
25 required by the Code have been followed. See United States v. Powell, 379 U.S. 48, 57-58
26 (1964). The burden of coming forward therefore has shifted to whoever might oppose
27 enforcement.
28 ////
ORDER TO SHOW CAUSE RE: TAX SUMMONS
ENFORCEMENT

2

1

7.

If the respondents have any defense or opposition to the petition, such defense or

2 opposition shall be made in writing and filed with the Clerk of Court and a copy served on the
3 United States Attorney at least 10 days before the show cause hearing date including any
4 continued date.
5

8.

At the show cause hearing, the Magistrate Judge intends to consider the issues

6 properly raised in opposition to enforcement. Only those issues brought into controversy by the
7 responsive pleadings and supported by affidavit will be considered. Any uncontested allegation

8 in the petition will be considered admitted.
9

9.

The respondents may notify the Court, in a writing filed with the Clerk and served

10 on the United States Attorney at least 10 days before the date set for the show cause hearing,
11 that the respondents have no objections to enforcement of the summons. The respondents’
12 appearance at the hearing will then be excused.
13
14 IT IS SO ORDERED.

15

Dated:

March 23, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
ORDER TO SHOW CAUSE RE: TAX SUMMONS
ENFORCEMENT

3