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United States v. Tallis

United States District Court, N.D. Texas, Dallas Division

April 20, 2018

UNITED STATES OF AMERICA, Petitioner,
v.
SAMUEL F. TALLIS, Respondent

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE JUDGE

         Pursuant to the Order Referring Motion, Doc. 4, before the Court is the United States' (IRS) Petition to Enforce IRS Summons (“Petition to Enforce”), Doc. 1, filed March 15, 2018. After consideration of the pleadings, evidence, oral argument, and applicable law, it is recommended that the petition be GRANTED.

         I. BACKGROUND

         On March 30, 2018, the Court issued an order for Respondent Samuel F. Tallis to appear in person before the undersigned, on April 17, 2018, at 10:00 a.m., and show cause why he should not be ordered to comply with the IRS administrative summons previously served on him. Doc. 7 (“Show Cause Order”). The Clerk of the Court was directed serve a copy of the Show Cause Order and Petition to Enforce with its attachments on Respondent by certified letter addressed to his residence at 1709 Carleton Avenue, Fort Worth, Texas 76107.[1] Doc. 7. The Show Cause Order further provided that in the event Respondent failed to accept service by mail, the Government was authorized to serve Respondent by affixing the pleadings to the front door of Respondent's residence. Id. On April 11, 2018, the Government filed a certificate of service indicating that on April 6, 2018, Respondent was served the Show Cause Order and Petition to Enforce with attachments by IRS Revenue Officer David Dodgen (“Officer Dodgen”) affixing the same to the front door of Respondent's residence at 1709 Carleton Avenue, Fort Worth, Texas 76107. Doc. 8.

         A. Failure to Appear

         A show cause hearing was held as scheduled on April 17, 2018. The government appeared through counsel, Manuel P. Lena and David G. Adams. However, as personally observed by the Court, Respondent failed to appear. At the hearing, Officer Dodgen testified that he indeed served a copy of the Show Cause Order and Petition to Enforce (with attachments including the Summons) on Respondent by affixing a copy to the front entrance and door of Respondent's last and usual residence at 1709 Carleton Avenue, Fort Worth, Texas 76107, on April 6, 2018. On this credible testimony and the uncontested written Declaration of Officer Dodgen, Doc. 8-1, the Court finds that Respondent was properly served with the Show Cause Order and Petition to Enforce with its exhibits on April 6, 2018.

         B. Failure to Comply with the Summons

         Officer Dodgen also testified at the April 17, 2018 hearing that on October 12, 2017, he issued an IRS administrative summons (“Summons”) to Respondent, which Officer Dodgen served on Respondent by affixing to the front entrance of Respondent's last and usual residence at 1709 Carleton Avenue, Fort Worth, Texas 76107, on October 13, 2017. The Summons required Respondent to appear at Officer Dodgen's office located at Oak Forest Shopping Center, 913 N.W. Loop 281, Suite 212, Longview, TX 75604, on November 15, 2017, at 10:00 a.m., to give testimony and produce documents and records regarding his assets, liabilities, or accounts held “for the period JANUARY 1, 2017 to PRESENT.” Doc. 1-1 at 6-7.

         II. APPICABLE LAW

         Where any person refuses to obey an IRS summons, the government may seek judicial enforcement of the summons:

Whenever any person summoned under section…7602 neglects or refuses to obey such summons, or to produce books, papers, records, or other data, or to give testimony, as required, the Secretary may apply to the judge of the district court or to a United States commissioner for the district within which the person so summoned resides or is found for an attachment against him as for a contempt. It shall be the duty of the judge or commissioner to hear the application, and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person, and upon his being brought before him to proceed to a hearing of the case;  and upon such hearing the judge or the United States commissioner shall have power to make such order as he shall deem proper, not inconsistent with the law for the punishment of contempt, to enforce obedience to the requirements of the summons and to punish such person for his default or disobedience.

26 U.S.C. § 7604(b).

         The government's prima facie case for enforcement requires only a “minimal” initial showing that the summons was issued in good faith, i.e., that (1) it was issued for a proper purpose, (2) that the material sought is relevant to that purpose, (3) that the information sought is not already within the Commissioner's possession, and (4) that the administrative steps required by the Internal Revenue Code have been followed. See, e.g., United States v. Powell, 379 U.S. 48 (1964); Barquero v. United States, 18 F.3d 1311, 1316 (5th Cir. 1994); United States v. McCoy, 954 F.2d 1000, 1004 (5th Cir. 1992). This showing may be made by a simple affidavit filed with the petition to enforce by the agent who issued the summons. United States v. Linsteadt, 724 F.2d 480, 482 (5th Cir.1984); United States v. Davis, 636 F.2d 1028, 1034 (5th Cir. 1981); see also 26 U.S.C. § 7603(a) (a section 7602 summons is served “by an attested copy delivered in hand to the person to whom it is directed, or left at his last and usual place of abode; and the certificate of service signed by the person serving the summons shall be evidence of the facts it states on the hearing of an application for the enforcement of the summons.”). Once the government makes this minimal showing, the burden shifts to the party resisting the summons to challenge it on any appropriate ground, e.g., an improper purpose for the summons or abuse of the court process. United States v. LaSalle Nat'l Bank, 437 U.S. 298, 316 (1978); Powell, 379 U.S. at 58; McCoy, 954 F.2d at 1004.

         III. ...


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