USA v. Espinar

Filing 9

ENFORCEMENT ORDER AND JUDGMENT. Signed by Judge Sarah A. L. Merriam on 11/1/2016. (Kaczmarek, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
UNITED STATES
:
:
v.
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:
JOHNATHAN ESPINAR
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:
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Civ. No. 3:16MC00212(AWT)

November 1, 2016

ENFORCEMENT ORDER AND JUDGMENT
On April 7, 2016, Revenue Officer Doreen M. Murray issued
an Internal Revenue Service Summons directing respondent
Johnathan Espinar (“respondent”) to appear before her on April
25, 2016, to testify and to produce for examination books,
papers, records or other data described in the summons. See Doc.
#1-1 at 2; Doc. #1-2 at 2. On April 8, 2016, Revenue Officer
Murray personally served the summons on the respondent, by
handing an attested copy to him. See Doc. #1-1 at 2; Doc. #1-2
at 3. The respondent failed to appear as directed. See Doc. #1
at 2.
On July 20, 2016, the government filed a Motion to Enforce
the Internal Revenue Service summons, and the motion was
referred to the undersigned on August 26, 2016. [Docs. ##1, 3].
On September 14, 2016, the Court granted the government’s
motion, and issued an Order to Show Cause why the respondent
should not be compelled to comply with the subject summons.
[Doc. #4]. On October 31, 2016, the undersigned held a Show
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Cause Hearing, pursuant to the Court’s Order to Show Cause. The
respondent failed to appear.
The Internal Revenue Service (“IRS”) has authority to
issue summonses to ascertain the liability “of any person for
any internal revenue tax” and to “examine any books, papers,
records, or other data which may be relevant or material to such
inquiry[.]” 26 U.S.C. §7602(a). “If any person is summoned under
the internal revenue laws to appear, to testify, or to produce
books, papers, records, or other data, the United States
district court for the district in which such person resides or
is found shall have jurisdiction by appropriate process to
compel such attendance, testimony, or production of books,
papers, records, or other data.” 26 U.S.C. §7604(a).
For a District Court to enforce a summons, the IRS must
demonstrate that: (1) the summons was issued for a
legitimate purpose; (2) the summoned data may be
relevant to that purpose; (3) the information is not
already
in
the
IRS’s
possession;
and
(4)
the
administrative procedures required by the Internal
Revenue Code for issuance and service have been
followed. See United States v. Powell, 379 U.S. 48, 5758 (1964). It is well established that an affidavit from
a government official, attesting that each of the Powell
requirements has been met, is sufficient to establish a
prima facie case.
United States v. Navarro, 304 F. App’x 908, 910 (2d Cir. 2008).
“Once the government makes a sufficient preliminary showing for
enforcement, the burden shifts to the taxpayer to disprove one
of the four Powell criteria, or to demonstrate that judicial
enforcement should be denied on the ground that it would be an
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abuse of the court’s process, or on any appropriate ground[.]”
U.S. v. Beacon Fed. Sav. & Loan, 718 F.2d 49, 52 (2d Cir. 1983)
(quotation marks and citations omitted).
In the instant matter, the Internal Revenue Service has
demonstrated that judicial enforcement should be granted.
Specifically, the Internal Revenue Service has shown that: (1)
the summons was issued pursuant to an investigation to determine
the federal income tax liability of the respondent for the tax
period ending December 31, 2014, and was therefore issued for a
legitimate purpose; (2) the summoned testimony and data may be
relevant to that determination; (3) the testimony and other data
sought are not already in the possession of the Internal Revenue
Service; and (4) the administrative steps required by the
Internal Revenue Code have been followed.
Moreover, the respondent has failed to demonstrate that
judicial enforcement should be denied. The respondent did not
file a written response to the petition of the government, nor
did the respondent appear at the October 31, 2016, hearing,
despite being personally served with the Court’s Order to Show
Cause and the calendar entry of the October 31, 2016, hearing
date. See Doc. #6.
Therefore, it is ORDERED, ADJUDICATED, AND DECREED that the
respondent, Johnathan Espinar, appear before Revenue Officer
Doreen M. Murray, or a designated representative, on or before
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December 1, 2016, at the Office of the Internal Revenue Service,
135 High Street, Stop 325, Hartford, Connecticut, to be sworn,
to give testimony, and to produce the books, records, papers,
and other data as demanded by the summons served upon the
respondent, on April 8, 2016, for examination and for copying by
photographic or other mechanical means of reproduction, with
such examination and copying to continue from day to day until
completed.
The respondent is further ORDERED to appear before the
undersigned on December 8, 2016, at 10:00 a.m., in Courtroom 5
of the United States Courthouse, 141 Church Street, New Haven,
Connecticut, to show cause as to why he should not be held in
contempt for failing to obey this Court’s order.
It is further ORDERED that a copy of this Enforcement Order
and Judgment be served in accordance with Rule 4(c)(2) of the
Federal Rules of Civil Procedure upon Johnathan Espinar, on or
before November 8, 2016.
SO ORDERED at New Haven, Connecticut, this 1st day of
November, 2016.

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/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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