United States of America v. Wilson
Filing
9
FINDINGS and RECOMMENDATIONS and Order re I.R.S. Summons Enforcement, signed by Magistrate Judge Michael J. Seng on 7/1/15. Referred to Judge O'Neill. Fourteen-Day Objections Deadline. (Gonzalez, R)
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: (916) 554-2775
5 Facsimile: (916) 554-2900
email: bobbie.montoya@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
sole proprietor of FAMILY LAW FRESNO
COM,
MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATIONS AND ORDER RE:
I.R.S. SUMMONS ENFORCEMENT
GLENN R. WILSON, individually and as
15
1:15-CV-00475-LJO-MJS
Taxpayer:
GLENN R. WILSON
16
Respondent.
17
18
19
This matter came on before Magistrate Judge Michael J. Seng on June 12, 2015, under
20 the Order to Show Cause filed March 27, 2015. Dkt. 5. The order, with the verified petition
21 filed March 26, 2015 (Dkt. 1), and its supporting memorandum (Dkt. 4-1), was personally
22 served on Respondent, at his business address located at 2141 Tuolumne Street, Suite B, Fresno,
23 California 93721, on April 2, 2015. Dkt. 6. Respondent did not file opposition or non24 opposition to the verified petition as provided for in the Order to Show Cause. At the hearing,
25 Bobbie J. Montoya, Assistant United States Attorney, appeared on behalf of Petitioner, and
26 investigating Revenue Officer Lori L. Minjarez also was present in the courtroom.
27 Respondent’s Counsel Mark Coleman made a special appearance on behalf of Respondent, due
28 to a conflict on his calendar rendering him unavailable to attend the show cause hearing.
30
[proposed] MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND
ORDER RE: I.R.S. SUMMONS ENFORCEMENT
1
1
The Verified Petition to Enforce IRS Summons initiating this proceeding seeks to enforce an
2 administrative summons (Exhibit A to the Petition) issued January 22, 2014. The summons is part of an
3 investigation of the respondent to secure information needed to collect assessed Form 940 Employer
4 Annual Federal Unemployment Tax for calendar periods ending December 31, 2004, and December 31,
5 2012; Form 941 Employer’s Federal Quarterly Tax for the quarterly periods ending June 30, 2004,
6 June 30, 2005, September 30, 2005, December 31, 2005, March 31, 2006, June 30, 2006, September 30,
7 2006, December 31, 2006, June 30, 2007, September 30, 2007, March 31, 2008, March 31, 2009,
8 June 30, 2009, September 30, 2009, December 31, 2009, March 31, 2010, June 30, 2010, June 30, 2012
9 and September 30, 2012; and Form CIVPEN for the calendar periods ending December 31, 2005,
10 December 31, 2006, December 31, 2008, and December 31, 2010, all relating to respondent’s sole
11 proprietor law practice.
12
Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be
13 proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the action. The
14 Order to Show Cause shifted to respondent the burden of rebutting any of the four requirements of
15 United States v. Powell, 379 U.S. 48, 57-58 (1964).
16
I have reviewed the petition and documents in support. Based on the uncontroverted
17 verified petition by Revenue Officer Lori L. Minjarez and the entire record, I make the
18 following findings:
19
(1) The summons issued by Revenue Officer Lori L. Minjarez on January 22, 2014, and
20 served upon Respondent, on January 22, 2014, seeking testimony and production of documents
21 and records in respondent’s possession, was issued in good faith and for a legitimate purpose
22 under I.R.C. § 7602, that is, to secure information needed to collect assessed Form 940 Employer
23 Annual Federal Unemployment Tax for calendar periods ending December 31, 2004, and December 31,
24 2012; Form 941 Employer’s Federal Quarterly Tax for the quarterly periods ending June 30, 2004,
25 June 30, 2005, September 30, 2005, December 31, 2005, March 31, 2006, June 30, 2006, September 30,
26 2006, December 31, 2006, June 30, 2007, September 30, 2007, March 31, 2008, March 31, 2009,
27 June 30, 2009, September 30, 2009, December 31, 2009, March 31, 2010, June 30, 2010, June 30, 2012
28 and September 30, 2012; and Form CIVPEN for the calendar periods ending December 31, 2005,
30
[proposed] MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND
ORDER RE: I.R.S. SUMMONS ENFORCEMENT
2
1 December 31, 2006, December 31, 2008, and December 31, 2010, all relating to respondent’s sole
2 proprietor law practice.
3
(2) The information sought is relevant to that purpose.
4
(3) The information sought is not already in the possession of the Internal Revenue
5 Service.
6
(4) The administrative steps required by the Internal Revenue Code have been followed.
7
(5) There is no evidence of referral of this case by the Internal Revenue Service to the
8 Department of Justice for criminal prosecution.
9
(6) The verified petition and its exhibits made a prima facie showing of satisfaction of
10 the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
11
(7) The burden shifted to respondent, Glenn R. Wilson, to rebut that prima facie
12 showing.
13
(8) Respondent’s specially-appearing counsel presented no argument or evidence to
14 rebut the prima facie showing.
15
I therefore recommend that the IRS summons served upon Respondent, be enforced; and
16 that Respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 205,
17 Fresno, California, before Revenue Officer (RO) Minjarez or her designated representative, on
18 June 30, 2015, at 10:00 a.m., as agreed to by RO Minjarez and Respondent’s specially19 appearing Counsel Mark Coleman at the show cause hearing. RO Minjarez is to mail IRS Form
20 433-A (“Collection Information Statement for Wage Earners and Self-Employed Individuals")
21 immediately to Respondent. Respondent is to fill out the form and attach all documents
22 requested therein, complete the form, sign it under penalty of perjury, and take it to the June 30
23 appearance at I.R.S. Should the June 30, 2015, appearance need to be continued or rescheduled,
24 it should be set in writing for a later date by RO Minjarez. Respondent is to appear before RO
25 Minjarez or her designated representative, then and there to be sworn, to give testimony, and to
26 produce for examining and copying the books, checks, records, papers and other data demanded
27 by the summons, the examination to continue from day to day until completed. I further
28 recommend that if it enforces the summons, the Court retain jurisdiction to enforce its order by
30
[proposed] MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND
ORDER RE: I.R.S. SUMMONS ENFORCEMENT
3
1 its contempt power.
2
These findings and recommendations are submitted to the United States District Judge
3 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of
4 the United States District Court for the Eastern District of California. Within fourteen (14) days
5 after being served with these findings and recommendations, any party may file written
6 objections with the court and serve a copy on all parties. Such a document should be titled
7 "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections
8 shall be served and filed within fourteen (14) days after service of the objections. The District
9 Judge will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1).
10 The parties are advised that failure to file objections within the specified time may waive the
11 right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
12
THE CLERK SHALL SERVE this and further orders by mail to Glenn R. Wilson at his
13 business located at 2141 Tuolumne Street, Suite B, Fresno, California 93721-1235.
14
15 IT IS SO ORDERED.
16
17
Dated:
July 1, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
18
19
20
21
22
23
24
25
26
27
28
30
[proposed] MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS AND
ORDER RE: I.R.S. SUMMONS ENFORCEMENT
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?