Opinion
No. C-10-5426 MMC.
March 10, 2011
ORDER GRANTING PETITION TO ENFORCE INTERNAL REVENUE SERVICE SUMMONS; ORDERING RESPONDENT TO COMPLY WITH SUMMONS; VACATING APRIL 1, 2011 HEARING
Before the Court is petitioners' Verified Petition to Enforce Internal Revenue Service Summons, filed December 1, 2010. Respondent Karen E. Rayl ("Rayl") has not filed a response to the petition. Having read and considered the petition, the Court deems the matter suitable for decision thereon, VACATES the hearing scheduled for April 1, 2011, and rules as follows.
For the reasons stated by petitioners, the Court finds enforcement of the summons attached to the petition as Exhibit A is proper. Further, the Court finds it unnecessary to conduct an evidentiary hearing on the matter; Rayl has not opposed issuance of the petition, much less offered evidence to support a finding that the summons was "issued for an improper purpose." See Fortney v. United States, 59 F.3d 117, 121 (9th Cir. 1995) (holding party challenging issuance of Internal Revenue Service summons not entitled to evidentiary hearing where party fails to offer evidence to support finding IRS is not acting in good faith).
Accordingly, the petition is hereby GRANTED, and Rayl is hereby ORDERED to appear before Revenue Officer Jon Sustarich, or any designated agent, on Wednesday, April 20, 2011, at 10:00 a.m., at the Offices of the Internal Revenue Service, 1301 Clay Street, Suite 1040S, Oakland, California, 94612, and then and there give testimony relating to the matters described in the subject Internal Revenue Service summons, a copy of which is attached hereto as Exhibit A, and produce for the Revenue Officer's inspection and copying the records described in the attached Internal Revenue Service summons.
Failure to comply with the instant order may be grounds for a finding of contempt. See, e.g., United States v. Ayres, 166 F.3d 991, 994-96 (9th Cir. 1999) (affirming finding of contempt, where party failed to comply with court order directing him to provide testimony and produce records to IRS).
Within five court days of the date of this order, petitioners are hereby DIRECTED to serve a copy of the instant order on Rayl,see Fed.R.Civ.P. 5(b), and to file proof of service with the Clerk of the Court.
IT IS SO ORDERED.
Dated: March 10, 2011
EXHIBIT A
Summons
In the matter of THE GROSS ESTATE OF JEANETTE OTTOVICH, 18864 W CAVENDISH DR. CASTRO VALLEY CA 94552
Internal Revenue Service (Division): SMALL BUSINESS/SELF EMPLOYED
Industry/Area (name or number): SB/SE AREA 7 (27)
Periods: November 20th 2001
The Commissioner of Internal Revenue
To: KAREN E RAYLAt: 18864 W CAVENDISH DR. CASTRO VALLEY CA 94552
You are hereby summoned and required to appear before JON SUSTARICH, an officer of the Internal Revenue Service, to give testimony and to bring with you and to produce for examination the following books, records, papers, and other data relating to the tax liability or the collection of the tax liability or for the purpose of inquiring into any offense connected with the administration or enforcement of the internal revenue laws concerning the person identified above for the periods shown.
To provide sworn testimony in regards to your receipt, possession or control of any and all property and rights to property, comprising the gross estate of Jeanette Ottovich, including but not limited to: real estate; stocks and bonds; cash and bank accounts; mortgages; notes; life insurance; annuities; individual proprietorships; partnership interests; corporations; trusts; contracts for the sale of real estate; patents and copyrights; items relating to decedent's home and personal life, including but not limited to: household goods; clothing; automobiles; boats; aircraft; jewelry and gems; antiques; objects of art and collections; transfers of property or rights to property made within three years of death; transfers of property or rights to property in which the decedent had retained some right or control.
Do not write in this space
Business address and telephone number of IRS officer before whom you are to appear: 1301 CLAY STREET, OAKLAND, CA 94612 (510) 637-4685 Place and time for appearance at 1301 CLAY STREET, SUITE 1040S, OAKLAND, CA 94612 on the 5th day of October 2010 at 8:30 o'clock a m. IRS Issued under authority of the Internal Revenue Code this 20th day of September 2010 Internal Revenue Service www.irs.gov JON SUSTARICH REVENUE OFFICER Catalog Number 21405J , , Department of the Treasury Form 2039 (Rev. 12-2008) Signature of Issuing Officer Title _______________________________________________________ _______________________________ Signature of Approving Officer (if applicable) Title Service of Summons, Notice and Recordkeeper Certificates(Pursuant to section 7603, Internal Revenue Code)
I certify that I served the summons shown on the front of this form on: How Summons Was Served How Notice Was Given 2039
Date 9-21-2010 Time 8:30 am I certify that I handed a copy of the summons, which contained the attestation required by 1. [] § 7603, to the person to whom it was directed. I certify that I left a copy of the summons, which contained the attestation required by 2. [X] § 7603, at the last and usual place of abode of the person to whom it was directed. I left the copy with the following person (if any): attached to door I certify that I sent a copy of the summons, which contained the attestation required by 3. [] § 7603, by certified or registered mail to the last known address of the person to whom it was directed, that person being a third-party recordkeeper within the meaning of § 7603(b). I sent the summons to the following address:_______________________________________ ____________________________________________________________________________________________ Signature Title 4. This certificate is made to show compliance with IRC whether or not records of the business transactions or affairs of Section 7609. This certificate does not apply to summonses an identified person have been made or kept. served on any officer or employee of the person to whose liability the summons relates nor to summonses in aid of I certify that, within 3 days of serving the summons, I gave collection, to determine the identity of a person having a notice (Part D of Form 2039) to the person named below on the numbered account or similar arrangement, or to determine date and in the manner indicated. Date of giving Notice: _________________________________________ Time: _________________________________________ Name of Noticee: _____________________________________________________________________________________________________ Address of Noticee (if mailed): _______________________________________________________________________________________ [] I gave notice by certified or registered mail to [] I gave notice by handing it to the noticee. the last known address of the noticee. [] In the absence of a last known address of the [] I left the notice at the last and usual place of noticee, I left the notice with the person abode of the noticee. I left the copy with the summonsed. following person (if any). [] No notice is required. Signature Title I certify that the period prescribed for beginning a proceeding to quash this summons has expired and that no such proceeding was instituted or that the noticee consents to the examination. Signature Title Form (Rev. 12-2008)