United States of America v. Warrior

Filing 6

ORDER granting Petition to Enforce Internal Revenue Service Summons. Respondent, Floyd Standing Warrior, is directed to appear before IRS Revenue Officer John Black or his designee, on 01/19/11 09:00 AM at the offices of the Internal Revenue Service. Signed by Judge Irma E. Gonzalez on 12/15/11.(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Petitioner,
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v.
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FLOYD STANDING WARRIOR,
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Respondent.
_________________________________________ )
UNITED STATES OF AMERICA

Case No. 11cv2414-IEG (CAB)
ORDER GRANTING PETITION TO
ENFORCE INTERNAL REVENUE
SERVICE SUMMONS

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The Government has petitioned the Court for an order enforcing an Internal Revenue Service

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(“IRS”) Summons issued to Floyd Standing Warrior (“Respondent”). On October 18, 2011, the

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Court issued an order to show cause why the IRS summons should not be judicially enforced. On

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November 2, 2011, the IRS served a copy of the order to show cause on Respondent. Respondent

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did not file a written response.
A hearing was held on the Government’s petition on December 12, 2011, at 11:00 a.m. The

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United States was represented by Assistant United States Attorney Raven M. Norris. Respondent

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did not appear. For the reasons explained herein, the Government’s Petition to Enforce the

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summons is granted.

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BACKGROUND

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The IRS is conducting an investigation regarding Respondent’s ability to pay assessed

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income tax liabilities for the 2005 and 2006 tax years. [Declaration of Revenue Officer John Black

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in Support of Petition (“Black Decl.”), ¶¶ 2-3.] On May 10, 2011, in furtherance of the above

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investigation, John Black, a Revenue Officer employed by the IRS, issued an IRS summons to

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Respondent. [Id. at ¶ 3; Ex. A.] On May 11, 2011, the IRS served a copy of the summons on

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Respondent by leaving a copy at his last and usual abode. [Id. at ¶ 4; Ex. B.]

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The summons required Respondent to appear before the IRS on May 26, 2011 in order to
give testimony and produce for examination documents and records specified in the summons.

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[Id. at ¶¶ 3,5.] On May 26, 2011, Respondent did not appear or otherwise provide documents and

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information requested by the summons. [Id. at ¶ 6.] The IRS provided Respondent another

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opportunity to comply with the summons and directed him to appear on June 30, 2011. [Id. at ¶ 7;

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Ex. C.] Respondent did not appear on June 30, 2011. However, on July 5, 2011, the IRS received a

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letter from Respondent indicating that he would be willing to appear at a later date. [Id. at ¶ 9.]

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Accordingly, the IRS provided Respondent until August 4, 2011 to appear and provide the

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summonsed information. [Id. at ¶ 10.] Respondent failed to appear on August 4, 2011, and did not

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provide any of the summonsed information. [Id.] To date, Respondent has not provided the

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documents and testimony requested by the summons. [Id. at ¶ 15.] The books, records, papers, and

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other data sought by the summonses are not already in the possession of the IRS. [Id. at ¶ 16.]

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On October 17, 2011, the Government petitioned the Court to enforce the issued summons.

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On October 18, 2011, the Court ordered Respondent to appear on December 12, 2011 to show cause

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why he should not be compelled to comply with the summons. The IRS served the order to show

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cause on Respondent on November 2, 2011, and filed proof of service with the Court on November

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3, 2011. Respondent did not file any written opposition to the Government’s petition.

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DISCUSSION
Pursuant to 26 U.S.C. § 7602(a)(1), the Secretary of the Treasury may “examine any books,

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papers, records, or other data which may be relevant of material” in connection with “ascertaining

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the correctness of any return, making a return where none has been made, determining the liability

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of any person for any internal revenue. . . or collecting any such liability.” Section 7602(a)(1)

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authorizes the Secretary to issue summonses to compel persons in possession of such books, papers,

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records, or other data to appear and produce the same and/or give testimony.

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In order to obtain judicial enforcement of an IRS summons, the United States “must first

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establish it’s ‘good faith’ by showing that the summons: (1) is issued for a legitimate purpose; (2)

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seeks information relevant to that purpose; (3) seeks information that is not already within the IRS’

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possession; and (4) satisfies all administrative steps required by the United States Code.” Fortney v.

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United States, 59 F.3d 117, 119 (9th Cir. 1995) (citing United States v. Powell, 379 U.S. 48, 57-58

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(1964)). “The government’s burden is a ‘slight one’ and typically is satisfied by the introduction by

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the sworn declaration of the revenue agent who issued the summons that Powell requirements have

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been met.” Id. at 120. Once the government has made a prima facie showing that enforcement of the

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summons is appropriate, the burden shifts to the respondent to show that enforcement of the

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summons would be an abuse of the court’s process. Powell, 379 U.S. at 58. The Supreme Court has

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characterized respondent’s burden as a heavy one. Id.

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The Government’s petition and Revenue Officer Black’s supporting declaration satisfies all

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four elements of the Powell standard. First, the IRS is conducting an investigation regarding

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Respondent’s ability to pay assessed income tax liabilities for the 2005 and 2006 tax years. [Black

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Decl., ¶¶ 2, 3.] Such an investigation is expressly authorized by 26 U.S.C. § 7602(a). The Internal

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Revenue Code explicitly allows the issuance of summonses for the purpose of determining “the

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liability of any person for any internal revenue tax . . . or collecting any such liability.”

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26 U.S.C. § 7602(a). Thus, the summons was issued for a legitimate purpose. Second, Revenue

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Officer Black declared in his affidavit that the information requested by the summons may be

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relevant to the IRS’s determination of Respondent’s ability to pay income tax liabilities assessed

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against him. [Id. at ¶ 18.] Third, the IRS does not already possess the papers, records, and other
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data sought by the summons. [Id. ¶ 16.] Finally, the IRS has followed and exhausted all required

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administrative steps, but Respondent has not complied with the summons. [Id. at ¶ 17.] Thus, the

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Government has made prima facie showing that it is entitled to judicial enforcement of the

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summons.

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CONCLUSION
For the reasons set forth herein, the Government’s Petition to Enforce the IRS summons is

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GRANTED. Respondent, Floyd Standing Warrior, is directed to appear before IRS Revenue Officer

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John Black or his designee, on January 19, 2011, at 9:00 a.m., at the offices of the Internal

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Revenue Service located at 880 Front Street, Suite 3295, San Diego, California, and to produce the

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documents and give testimony as directed in the summons. The United States shall serve a copy of

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this Order upon Respondent in accordance with Fed. R. Civ. P. 5, within 7 days of the date that this

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Order is served upon counsel for the United States, or as soon thereafter as possible. Proof of such

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service shall be filed with the Clerk of Court as soon as practicable.

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Respondent is hereby notified that failure to comply with this Order may subject him to
sanctions for contempt of court.

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IT IS SO ORDERED.

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DATED: December 15, 2011

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IRMA E. GONZALEZ, Chief Judge
United States District Court

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