United States of America et al v. Jenkins

Filing 11

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 5/5/2010 ORDERING that the Clerk shall serve this order and future orders on Mr. Stanley Jenkins, 824 Brookwood Avenue, Vallejo, California 94591.IT IS FURTHER RECOMMENDED that the IRS summons issued to Stanley Jenkins be enforced re 1 Petition to Enforce IRS Summons. Objections to F&R due w/in 10 days. (Matson, R)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 T h i s matter came on for hearing on May 5, 2010, under the Order to Show Cause f ile d February 18, 2010. That order, with the verified petition and exhibits, was served on re s p o n d e n t in conformity with Fed. R. Civ. P. 4(e) on April 13, 2010. Yoshinori H. T. H im e l appeared for petitioners, and petitioning Revenue Officer Clifford Brown was p re se n t. Respondent, who did not file an opposition, appeared at the hearing. T h e Verified Petition to Enforce Internal Revenue Service Summons initiating this p ro c e ed in g seeks to enforce an administrative summons, filed as Exhibit A to the petition, in aid of Revenue Officer Brown's investigation of Stanley Jenkins, to determine the ta x p a ye r's ability to collect assessed Employer's Federal Quarterly Tax for the periods e n d in g June 30, 2007, March 31, 2008, June 30, 2008, and September 30, 2008, for Eden L a w n Care and Maintenance, a sole proprietorship. Petitioners properly invoke subject 1 v. T a x p a ye r: STANLEY J. JENKINS S T A N L E Y J. JENKINS, R e sp o n d e n t. U N IT E D STATES OF AMERICA, and C L IF F O R D BROWN, Revenue Officer, In te rn a l Revenue Service, P e titio n e r s, 2:10-m c-0001 9-L K K -K JM O R D E R AND FINDINGS AND R E C O M M E N D A T IO N S RE: I.R.S. SUMMONS ENFORCEMENT IN THE UNITED STATES DISTRICT COURT FOR THE E A S T E R N DISTRICT OF CALIFORNIA

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m a tte r jurisdiction under 28 U.S.C. §§ 1340 and 1345. The action is authorized under I.R .C . §§ 7402(b) and 7604(a) (26 U.S.C.). The Order to Show Cause shifted to re sp o n d e n t the burden of rebutting any of the four requirements of United States v. P o w e ll, 379 U.S. 48, 57-58 (1964). Based on the uncontroverted verification of Revenue Officer Brown and the entire r e c o rd , the court makes the following findings: (1 ) The summons issued by Revenue Officer Clifford Brown to respondent, S ta n le y Jenkins, on May 29, 2009, seeking testimony and production of documents and r e c o rd s in respondent's possession, was issued in good faith and for a legitimate purpose u n d e r I.R.C. § 7602, that is, to determine the taxpayer's ability to collect assessed E m p lo ye r's Federal Quarterly Tax for the periods ending June 30, 2007, March 31, 2008, Ju n e 30, 2008, and September 30, 2008, for Eden Lawn Care and Maintenance, a sole p ro p ri e to rs h ip . (2) The information sought is relevant to that purpose. (3 ) The information sought is not already in the possession of the Internal Revenue S e rv ic e . (4 ) The administrative steps required by the Internal Revenue Code have been f o llo w e d . (5 ) There is no evidence of referral of this case by the Internal Revenue Service to th e Department of Justice for criminal prosecution. (6 ) The verified petition and its exhibits make a prima facie showing of satisfa ctio n of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). (7 ) The burden thus has shifted to respondent, Stanley Flores, to rebut that prima f a cie showing. (8 ) Respondent has presented no argument or evidence to rebut the prima facie sh o w in g , and in fact indicated at hearing that he did not oppose enforcement. /// /// 2

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A c c o rd in g ly, IT IS HEREBY RECOMMENDED that the IRS summons issued to re sp o n d e n t, Stanley Jenkins, be enforced, and that respondent be ordered to appear at the I.R .S . Fairfield office at 4830 Business Center Drive, Suite 250, Fairfield, California 9 4 5 3 4 , before Revenue Officer Clifford Brown, or his designated representative, on T h u rs d a y, May 27, 2010, at 2:00 p.m., or at a later date and time to be set in writing by th e Revenue Officer, then and there to be sworn, to give testimony, and to produce for e x a m in in g and copying the books, checks, records, papers and other data demanded by th e summons, the examination to continue from day to day until completed. It is further re c o m m e n d e d that if it enforces the summons, the court retain jurisdiction to enforce its o rde r by its contempt power. IT IS HEREBY ORDERED that the Clerk shall serve this order and future orders o n Mr. Stanley Jenkins, 824 Brookwood Avenue, Vallejo, California 94591. T h e se findings and recommendations are submitted to the United States District J u d g e assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) an d Rule 72-304 of the Local Rules of the United States District Court for the Eastern D is tric t of California. Within ten (10) days after being served with these findings and re c o m m e n d a tio n s , any party may file written objections with the court and serve a copy o n all parties. Such a document should be titled "Objections to Magistrate Judge's F in d in g s and Recommendations." Any reply to the objections shall be served and filed w ith in ten (10) days after service of the objections. The parties are advised that failure to f ile objections within the specified time may waive the right to appeal the District Court's o rde r. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). D A T E D : June 3, 2010. n u n c pro tunc to May 5, 2010.

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