United States of America v. Witt

Filing 8

FINDINGS and RECOMMENDATIONS Recommending that Petitioner's 1 Petition to Enforce IRS Summons be Granted, signed by Magistrate Judge Stanley A. Boone on 6/2/15. Referred to Judge O'Neill; 21-Day Deadline. (Verduzco, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
UNITED STATES OF AMERICA,

11

Case No. 1:15-cv-00418-LJO-SAB

Petitioner,

12

FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT PETITIONER‟S
PETITION TO ENFORCE IRS SUMMONS
BE GRANTED

v.

13

JAMES W. WITT,

14

OBJECTIONS DUE WITHIN TWENTYONE (21) DAYS

Respondent.

15
16

On March 16, 2015, Petitioner United States of America (“Petitioner”) filed a petition to

17

18 enforce an IRS summons against Respondent James W. Witt (“Respondent”). (ECF No. 1.) On
1
19 May 15, 2015, Defendant James W. Witt filed a motion to dismiss the petition. (ECF No. 7.)

20 The Court finds it appropriate for the matter to be decided on the record and briefs on file
21 without oral argument. See Local Rule 230(g).
For the reasons set forth below, the Court recommends that Petitioner‟s petition to

22

23 enforce the IRS summons be granted.
24 / / /
25 / / /
26
1

The Court construes Respondent‟s motion to dismiss as his opposition to the petitioner to enforce the IRS

27 summons. Pursuant to the Court‟s March 20, 2015 order, Respondent‟s written opposition to the petition was to be
filed on or before June 1, 2015. To date, Respondent has not filed any other document which could be construed as

28 an opposition other than the motion to dismiss.

1

1

I.

2

BACKGROUND

3

The petition alleges that Internal Revenue Service (“IRS”) Revenue Officer Evan D.

4 Moses is conducting an investigation of Respondent concerning federal income taxes for years
5 ending December 31, 1997, December 31, 2003, December 31, 2004, December 31, 2005,
6 December 31, 2006, December 31, 2007, and December 31, 2008. On July 29, 2014, Mr. Moses
7 issued an IRS summons directing Respondent to testify and produce certain documents related to
8 the investigation on August 26, 2014 at the IRS‟s office in Fresno, California. On July 30, 2014,
9 Mr. Moses left a copy of the summons at the last and usual place of abode for Respondent, at
10 1343 N. 10th Avenue, Hanford, California. Respondent did not appear on August 26.
11

On May 15, 2015, Respondent, proceeding pro se, filed a document in this action entitled

12 “Motion to dismiss.” (ECF No. 7.) The Court construes this document as an opposition to the
13 petition.
14

II.

15

LEGAL STANDARDS

16

Pursuant to 26 U.S.C. § 7602, the IRS has authority to issue summonses to investigate tax

17 returns and tax liabilities. Enforcement of IRS summonses is governed by 26 U.S.C. § 7604,
18 which states, in pertinent part:
19
20
21
22
23
24
25
26
27

(b) Enforcement.--Whenever any person summoned under
section 6420(e)(2), 6421(g)(2), 6427(j)(2), or 7602 neglects or
refuses to obey such summons, or to produce books, papers,
records, or other data, or to give testimony, as required, the
Secretary may apply to the judge of the district court or to a United
States commissioner for the district within which the person so
summoned resides or is found for an attachment against him as for
a contempt. It shall be the duty of the judge or commissioner to
hear the application, and, if satisfactory proof is made, to issue an
attachment, directed to some proper officer, for the arrest of such
person, and upon his being brought before him to proceed to a
hearing of the case; and upon such hearing the judge or the United
States commissioner shall have power to make such order as he
shall deem proper, not inconsistent with the law for the punishment
of contempts, to enforce obedience to the requirements of the
summons and to punish such person for his default or
disobedience.

28 Jurisdiction of this Court to enforce summonses is expressly provided under 26 U.S.C. § 7402(b)

2

1 and 7602(a). In issuing an IRS summons:
2
3
4
5
6

...the [government] need not meet any standard of probable cause
to obtain enforcement of his summons, either before or after the
three-year statute of limitations on ordinary tax liabilities has
expired. He must show that the investigation will be conducted
pursuant to a legitimate purpose, that the inquiry may be relevant
to the purpose, that the information sought is not already within the
Commissioner‟s possession, and that the administrative steps
required by the Code have been followed....

7 U.S. v. Powell, 379 U.S. 48, 57-58 (1964). “The government‟s burden is a slight one, and may
8 be satisfied by a declaration from the investigating agent that the Powell requirements have been
9 met.” U.S. v. Dynavac, Inc., 6 F.3d 1407, 1414 (9th Cir. 1993) (citing U.S. v. Abrahams, 905
10 F.2d 1276, 1280 (9th Cir. 1990); Liberty Financial Servs. v. U.S., 778 F.2d 1390, 1392 (9th Cir.
11 1985)). “Once the prima facie case is made, a „heavy‟ burden falls upon the taxpayer to show an
12 abuse of process ... or lack of institutional good faith.” Id. (citations omitted). “The burden [on
13 the government] is minimal „because the statute must be read broadly in order to ensure that the
14 enforcement powers of the IRS are not unduly restricted.‟” Crystal v. U.S., 172 F.3d 1141, 1144
15 (9th Cir. 1999) (quoting Liberty Fin. Servs. v. U.S., 778 F.2d 1390, 1392 (9th Cir. 1985)).
16

III.

17

DISCUSSION

18

Respondent argues that Petitioner “assume[] the constitution and code apply to

19 [Respondent] and the IRS had jurisdiction to investigate [Respondent].” (Mot. to Dismiss, at pg.
20 1.) Respondent cites Vlandis v. Kline, 412 U.S. 441 (1973), in support of his argument that the
21 Court cannot irrefutably presume that the United States Constitution and the United States Code
22 apply to Respondent. Vlandis is inapplicable. The Court does not irrefutably presume that the
23 United States Constitution or the United States Code applies in this context against Respondent.
24 The facts alleged in the petition and attested to by Evan D. Moses in his declaration establish that
25 they apply. Respondent is a resident of this country, specifically Hanford, California, and
26 Respondent does not dispute his residency. Respondent cites no legal authority which supports
27 the argument that the United States Constitution and the United States Code would not apply to
28

3

1 someone living in the United States.2
With respect to jurisdiction, the declaration of Evan D. Moses submitted by Petitioner is

2

3 sufficient to establish the relevant jurisdictional facts. Jurisdiction is provided by 26 U.S.C. §
4 7402(b) and 7602(a). Respondent‟s naked denial does not divest the district court of jurisdiction.
5 See Fortney v. U.S., 59 F.3d 117, 119 (9th Cir. 1995).
Respondent also accuses Mr. Moses of “bad faith” because Mr. Moses refused to answer

6

7 Respondent‟s questions regarding jurisdiction and referred Respondent to speak with Bobbie
8 Montoya from the United States Attorney‟s Office. The Court finds no bad faith in Mr. Moses
9 actions in referring Respondent to his attorney. Further, Mr. Moses‟ actions do not establish that
10 he lacks personal knowledge of the facts attested to in his declaration. Nor does it suggest a lack
11 of evidence on the part of Petitioner.
Respondent argues that Petitioner lacks standing to bring this action. Respondent‟s

12

13 argument has no merit, as the United States Code, specifically 26 U.S.C. § 7604, authorizes the
14 United States to bring subpoena enforcement actions against individuals such as Respondent who
15 ignore IRS subpoenas. The United States possesses a legal right to subpoena individuals in
16 investigations relating to tax matters. Respondent‟s argument that this action is somehow “unfit
17 for adjudication” similar has no merit.
Any remaining arguments raised in Respondent‟s briefing are clearly frivolous and do not

18

19 warrant further analysis by the Court. The Court finds that Petitioner has met its burden of
20 establishing the Powell factors. Mr. Moses‟ declaration shows that the investigation will be
21 conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that
22 the information sought is not already within the Commissioner‟s possession, and that the
23 administrative steps required by the Code have been followed.
24 / / /
25 / / /
26 / / /
27
28

2

It is also worth noting that Respondent is invoking the protections of the Due Process Clause, which is established
by the United States Constitution. Assuming, for the sake of argument, that the United States Constitution did not
apply to Respondent, he would not enjoy the rights provided by the Due Process Clause.

4

1

IV.

2

CONCLUSION AND ORDER
Based upon the foregoing, it is HEREBY RECOMMENDED that Petitioner‟s petition to

3

4 enforce the IRS summons be GRANTED.
These findings and recommendations are submitted to the district judge assigned to this

5

6 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court‟s Local Rule 304. Within twenty7 one (21) days of service of this recommendation, any party may file written objections to these
8 findings and recommendations with the Court and serve a copy on all parties. Such a document
9 should be captioned “Objections to Magistrate Judge‟s Findings and Recommendations.” The
10 district judge will review the magistrate judge‟s findings and recommendations pursuant to 28
11 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified
12 time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th
13 Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
14
IT IS SO ORDERED.
15
16 Dated:

June 2, 2015
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28

5