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United States v. Terrell

United States District Court, N.D. Georgia, Atlanta Division

November 18, 2014

UNITED STATES OF AMERICA, Petitioner,
v.
DARRELL J. TERRELL, Respondent

November 18, 2014, Filed

For United States of America, Plaintiff: David Alan O'Neal, LEAD ATTORNEY, U.S. Attorney's Office-ATL, Atlanta, GA USA.

MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

JUSTIN S. ANAND, UNITED STATES MAGISTRATE JUDGE.

This matter has come before the Court on a Petition to Enforce Internal Revenue Service Summons (the " Petition") that was filed by petitioner United States of America (the " United States") against respondent Darrell J. Terrell on September 30, 2014.

By Order To Show Cause entered on October 1, 2014, the Court ordered respondent to appear, in person, before the Court on Tuesday, November 18, 2014, at 10:00 a.m., in Courtroom 1875, 75 Spring Street, S.W., in Atlanta, Georgia, to show cause why he should not be compelled to comply with the Internal Revenue Service (" IRS") summons that was issued to and served on him on or about January 14, 2014 (the " Summons").

By that Order to Show Cause, the Court found that the petitioner had made a prima facie showing, through affidavit testimony, that the IRS's investigation is being conducted for a legitimate purpose, that the inquires in the Summons may be relevant to that purpose, that the information sought is not already in the IRS's possession, and that the administrative steps required by the Internal Revenue Code have been substantially followed. See Order [2] ¶ 3. The Order to Show Cause provided that any defense or opposition by respondent must be stated in writing, filed with the Clerk of the Court and served upon counsel for petitioner, no later than fourteen (14) days prior to the November 18, 2014 hearing. Id. ¶ 4. The Order to Show Cause indicated that only properly asserted written arguments, supported by affidavits or declarations, would be considered, and that if respondent were to fail to file and serve a responsive pleading or motion after being duly served with the Order to Show Cause, any objection to the enforcement of the summons would be waived. Id. ¶ 7.

Copies of the Petition (including exhibits thereto) and the October 1, 2014, Order to Show Cause were personally served upon respondent by IRS Revenue Officer on October 31, 2014 [3]. Respondent did not file a response to the Petition.

On November 18, 2014, this case came before the Court for a show cause hearing on Petitioner's Petition to Enforce IRS Summons. Respondent appeared on behalf of himself. Respondent indicated that he believed he had previously provided all requested materials to other employees of the IRS, and believed that those employees would transmit the materials to the Revenue Agent. Respondent otherwise offered no defense to the allegations in the Petition. Counsel for the government asked the Court to grant the Petition.

WHEREFORE, the Court, having reviewed the Petition and supporting documents filed by the United States, hereby makes the following findings of fact:

1. Andrea Porter is a duly commissioned Revenue Officer employed by the IRS. In that capacity, she is, and has been at all times relevant to this action, vested with the authority to issue summonses under the Internal Revenue Code, 26 U.S.C. § 7602, Treasury Regulation § 301.7602-1 and 26 C.F.R. § 301.7602-1, by the Secretary of the Treasury.

2. Respondent Darrell J. Terrell resides at 529 Keldron Drive, Lawrenceville, Georgia 30045-3810, which is within the jurisdiction of the United States District Court for the Northern District of Georgia.

3. In her capacity as a Revenue Officer, Andrea Porter is conducting an investigation into the collection of tax liability of respondent for the calendar years ending on December 31, 2005, and December 31, 2006,

4. In furtherance of her investigation, Revenue Officer Porter issued an IRS Summons to respondent on January 14, 2014. The Summons directed respondent to appear before Revenue Officer Porter on February 6, 2014, at 10:00 a.m. at 5255 Snapfinger Park Drive, Suite 160, Suite 696-D, Decatur, GA 30035-4059 (678) 518-9415, to testify and to produce books, records and other data described in the summons.

5. Revenue Officer Porter served the Summons on respondent by leaving an attested copy of the summons at the last and usual place of abode of the respondent, that is, by taping it to the respondent's mailbox in an envelope marked " confidential."

6. On February 6, 2014, respondent failed to appear before Revenue Officer Porter.

7. It is necessary to examine the books, papers, records, or other data sought by the Summons in order to properly investigate collection of the Federal tax liability of responded for the years identified above.

8. The Summons has been issued for a legitimate purpose, namely, in order to properly investigate collection of the Federal tax liability of respondent for the years identified above.

9. The information and documents sought by the Summons are relevant to the purpose for which the Summons was issued because they are relevant and necessary to properly investigate collection of the Federal tax liability of respondent.

10. The documents and information sought by the Summons are not already in the possession of the IRS.

11. Revenue Officer Porter has complied with the administrative prerequisites for the issuance of the Summons to respondent.

12. Respondent was given proper notice of the Summons.

13. The United States has made its prima facie showing that it is entitled to the enforcement of the Summons.

14. Respondent has not provided the Court with any legitimate reason why the Summons should not be enforced. Indeed, respondent has waived any legal or factual objection to Petition by failing to file any opposition in writing. Even if the Court were to consider respondent's oral statement at the hearing that he handed the documents to other IRS employees, who he believed would transmit the documents to Officer Porter, that statement does not establish compliance with the Summons. The Summons required respondent to personally appear before Officer Porter at a particular office suite number and time, which respondent did not do. Indeed, the Summons called for production of more than just documents, but rather also required respondent to furnish testimony to the Officer if necessary. This requirement could not be satisfied by simply handing documents to other IRS employees.

15. Respondent has not satisfied his burden of disproving any of the elements of the United States' prima facie showing that the Summons should be enforced, or of showing that the enforcement of the Summons would constitute an abuse of the Court's process.

WHEREFORE, the undersigned RECOMMENDS that:

(a) the United States' Petition to Enforce Internal Revenue Service Summons be GRANTED;

(b) respondent Darrell J. Terrell be ordered to appear before Revenue Officer Andrea Porter within 30 days of the date of the District Court's order granting the United States' Petition to Enforce Internal Revenue Service Summons, and fully comply with the Summons at that time. Respondent is admonished that failure to comply with the IRS summons could result in a finding that he is in contempt of court.

The Clerk is DIRECTED to terminate the reference to the Magistrate Judge.

IT IS SO RECOMMENDED


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