United States of America v. Hernandez

Filing 8

FINDINGS and RECOMMENDATIONS recommending that the I.R.S. summons served upon Respondent Jose Alejandro Hernandez be enforced and that Respondent be ordered to appear at the I.R.S. offices at 2525 Capitol Street, Suite 203, Fresno, CA 93721, before R evenue Agent Naoemi Salinas or her designated representative, on April 28, 2017, at 10:00 a.m., as agreed to by Revenue Agent Naoemi Salinas and Respondent Jose Alejandro Hernandez at the show cause hearing, then and there to be sworn, to give testim ony, and to produce for examining and copying the books, checks, records, papers and other data demanded by the summons, the examination to continue from day to day until completed, unless compliance with the summons is fully achieved prior to that d ate and time. Should the foregoing appointment date need to be continued or rescheduled, the Respondent is to be notified in writing of a later date by Revenue Agent Salinas. It is further recommended that if it enforces the summons, the court retain jurisdiction to enforce its order by its contempt power. re 1 Petition to Enforce IRS Summons filed by United States of America. Matter referred to Judge Lawrence O'Neill; Objections to F&R due withing fourteen (14) days after being served with these findings and recommendations. Findings and Recommendations signed by Magistrate Judge Barbara A. McAuliffe on 3/13/2017. (Thorp, J)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 UNITED STATES OF AMERICA, Petitioner, 11 12 13 14 1:16-CV-01746-LJO-BAM FINDINGS AND RECOMMENDATIONS AND ORDER RE: I.R.S. SUMMONS ENFORCEMENT v. JOSE ALEJANDRO HERNANDEZ, Respondent. Taxpayer: JOSE ALEJANDRO HERNANDEZ 15 16 17 18 This matter came on before Magistrate Judge Barbara A. McAuliffe on February 24, 19 2017, under the Order to Show Cause filed November 21, 2016. (Doc. 4). The order, with the 20 verified petition filed November 17, 2016, (Doc. 1), and its supporting memorandum, (Doc. 321 1), were taped to the residence of Respondent Jose Alejandro Hernandez (“Respondent”) at 22 26128 Club Drive, Madera, California, by Revenue Agent Naoemi Salinas on December 13, 23 2016. Before Revenue Agent Salinas left the scene, Respondent drove up and was informed by 24 Agent Salinas that the legal documents were taped to his door; she later saw that he had 25 retrieved the documents. (Doc. 5). Respondent did not file opposition or non-opposition to the 26 verified petition as provided for in the Order to Show Cause. At the hearing, Bobbie J. 27 Montoya, Assistant United States Attorney, personally appeared on behalf of Petitioner, and 28 investigating Revenue Agent Naoemi Salinas also was present in the courtroom. Respondent 1 30 1 Jose Alejandro Hernandez personally appeared at the hearing. 2 The Verified Petition to Enforce I.R.S. Summons initiating this proceeding seeks to 3 enforce an administrative summons issued July 22, 2016. See Exhibit A to the Petition, 4 (Doc. 1-2.) The summons is part of an investigation of the respondent to secure information 5 relating to the tax liability or the collection of the tax liability for federal income tax for the 6 years ending December 31, 2013, December 31, 2014, and December 31, 2015. 7 Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to 8 be proper. Internal Revenue Code §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the 9 government to bring the action. The Order to Show Cause shifted to the respondent the burden 10 of rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 11 The Court has reviewed the petition and documents in support. Based on the 12 uncontroverted petition verified by Revenue Agent Naoemi Salinas and the entire record, the 13 Court makes the following findings: 14 (1) The summons issued by Revenue Agent Naoemi Salinas on July 22, 2016, and 15 served upon Respondent on July 22, 2016, seeking testimony and production of documents and 16 records in Respondent’s possession, was issued in good faith and for a legitimate purpose under 17 I.R.C. § 7602, that is, to secure information relating to the tax liability or the collection of the 18 tax liability for federal income tax for the years ending December 31, 2013, December 31, 2014, 19 and December 31, 2015. 20 (2) The information sought is relevant to that purpose. 21 (3) The information sought is not already in the possession of the Internal Revenue 22 Service. 23 (4) The administrative steps required by the Internal Revenue Code have been 24 followed. 25 (5) There is no evidence of referral of this case by the Internal Revenue Service to the 26 Department of Justice for criminal prosecution. 27 (6) The verified petition and its exhibits made a prima facie showing of satisfaction of 28 the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 2 30 1 (7) The burden shifted to respondent, Jose Alejandro Hernandez, to rebut that prima 2 facie showing. 3 (8) Respondent presented no argument or evidence to rebut the prima facie showing. 4 5 Based on the foregoing, it is therefore RECOMMENDED that the I.R.S. summons served 6 upon Respondent Jose Alejandro Hernandez be enforced and that Respondent be ordered to 7 appear at the I.R.S. offices at 2525 Capitol Street, Suite 203, Fresno, CA 93721, before Revenue 8 Agent Naoemi Salinas or her designated representative, on April 28, 2017, at 10:00 a.m., as 9 agreed to by Revenue Agent Naoemi Salinas and Respondent Jose Alejandro Hernandez at the 10 show cause hearing, then and there to be sworn, to give testimony, and to produce for examining 11 and copying the books, checks, records, papers and other data demanded by the summons, the 12 examination to continue from day to day until completed, unless compliance with the summons 13 is fully achieved prior to that date and time. Should the foregoing appointment date need to be 14 continued or rescheduled, the Respondent is to be notified in writing of a later date by Revenue 15 Agent Salinas. It is further recommended that if it enforces the summons, the court retain 16 jurisdiction to enforce its order by its contempt power. 17 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of 20 the United States District Court for the Eastern District of California. Within fourteen (14) 21 days after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be titled 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 24 objections shall be served and filed within fourteen (14) days after service of the objections. 25 The District Judge will then review these findings and recommendations pursuant to 28 U.S.C. 26 § 636(b)(1). The parties are advised that failure to file objections within the specified time may 27 result in the waiver of the “right to challenge the magistrate’s factual findings” on appeal. 28 3 30 1 Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 2 1391, 1394 (9th Cir. 1991)). 3 THE CLERK SHALL SERVE this and further orders by mail to Jose Alejandro 4 Hernandez, 26128 Club Drive, Madera, CA 93638. 5 6 IT IS SO ORDERED. 7 8 Dated: March 13, 2017 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 30

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