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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

 

UNITED STATES OF AMERICA,

 

 

 Petititoner,

 v.

CHRISTINA FRIEDLANDER, 

 

 Respondent,

Case No. C05-5714 (RBL)(JKA)

 REPORT 

 and 

 RECOMMENDATION

 Noted for February 8, 2006

THIS MATTER comes before the court on the Petition of the United States of America for an order

to enforce an Internal Revenue Service (IRS) administrative summons served on respondent. Pursuant to 18

U.S.C.§ 636A(b)(1) the Honorable Ronald B. Leighton referred the matter to the undersigned United States

Magistrate Judge to (a) review all pleadings; (b)determine whether a hearing is required and, if so, to schedule

and preside over such a hearing; and thereafter (c) to submit the appropriate proposal for consideration to

Judge Leighton.

REPORT

This proceeding was initiated at the request of the Chief Counsel of the IRS by way of delegation from

the Secretary of the Treasury, and at the direction of the Attorney General of the United States. Petitioner 

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ORDER

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asserts jurisdiction over this matter under 26 U.S.C. §§ 7420(b) and 7604(a) and 28 §§ U.S.C. 1340 and 1345.

The petition alleges that (a) the IRS is conducting an investigation to determine the correct income tax liability

of respondent for her 2002 tax year; (b) IRS agent, Paul Shipley, issued an administrative summons to the

respondent regarding her 2002 tax year which directed the respondent to appear July 19, 2005 to give

testimony and to produce for examination certain books, papers, records and other data described in the

summons; (c) respondent was personally served with the summons; (d) respondent failed to appear in person

and/or produce the documents requested and has continued to fail to respond ; (e) the books, papers, and other

records sought by way of the administrative summons are not within the possession of the IRS; (f) all

administrative steps required by the Internal Revenue Service Code for the issuance of an IRS summons have

been followed; and (g) the information sought is relevant to determine the correct federal income tax liability

of respondent for her 2002 taxable year.

Following a review of the petition, the undersigned, on December 9, 2006, directed the respondent to

show cause as to why she should not be compelled to obey the Internal Revenue Service summons served upon

her. The hearing date was scheduled for January 20, 2006 at 3:00 p.m. (Doc# 9).

In response to the order to show cause, respondent filed the following documents:

1. Refusal for Cause and Administrative Notice signed January 5, 2006 and filed January 6, 2006.

2. Christa Friedlander’s Verified Affidavit to Refusal for Cause and Administrative Notice signed

January 5, 2006 and filed January 6, 2006.

3. 2nd Refusal for Cause and Administrative Notice signed January 12, 2006; filed January 12,

2006; and

4. Christa Friedlander’s Verified Affidavit to 2nd Refusal for Cause and Administrative Notice

signed January 12, 2006; filed January 12, 2006.

The aforementioned documents speak for themselves. The essence of the response is a challenge to this

court’s jurisdiction.

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ORDER

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As scheduled, the hearing on the court’s order to show cause was held January 20, 2006. 

Petitioner appeared through counsel, Jennifer Auchterlonie. Respondent did not appear. The court

considered the oral remarks of counsel for the petitioner as well as the entirety of the record.

In order for an Internal Revenue Service Summons to be enforceable, it must meet the

requirements set forth under United States v. Powell, 379 U.S. 48 (1964), wherein the court determined

the IRS need not meet any standard of probable cause to obtain enforcement of the summons, but need

only show that (1) the investigation will be conducted pursuant to a legitimate purpose, (2) the inquiry

may be relevant to the purpose, (3) that the information sought is not already within the Commissioner’s

possession, and (4) the administrative steps required by the Code have been followed – in particular, that

the Secretary or his delegate, after investigation, has determined the further examination to be necessary

and has notified the taxpayer in writing to that effect. Petitioner has met this burden. See Petition and

Declaration of Paul R. Shipley (Doc #1 ).

Once the government meets its burden, the taxpayer must show an improper purpose or lack of 

good faith, by setting forth evidence to support her allegations, Fortney v. United States, 59 F.3d 117

(9th

Cir. 1995), Liberty Financial Services v. United States, 778 F2d 1390 (9th Cir. 1985). She has not done

so. Petitioner has in fact stated “The Aggrieved Party [petitioner] will not enter any ‘defense to present

or opposition to petition’ prior to the filing of any response by the alleged Petitioner to the Aggrieved

Party’s “Refusal for Cause” filed on or about January 1006 [sic].” (Doc#17-2, page 4, lines 24-26).

Petitioner’s reply was filed January 13, 2006. Respondent’s opportunity to show an improper purpose or

lack of good faith was at or before the hearing held by the court on January 20, 2006. She did not appear

or otherwise respond.

RECOMMENDATION

Based on the foregoing report, the undersigned recommends as follows:

1. The court has jurisdiction over the defendant and the subject matter of this proceeding.

2. That the respondent be ordered to fully obey the administrative summons served on respondent 

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July 7, 2005, by attending, testifying, and producing all documentation required by the terms of the

summons, before Revenue Agent Paul Shipley, or any other proper officer or employee of the IRS, at such

time and place as may be set by Revenue Agent Shipley or any other proper officer or employee of the

IRS.

 Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal rules of Civil Procedure, the

parties shall have ten (10) days from service of this Report and Recommendation to file written objections. 

See also Fed.R.Civ.P.6. Failure to file objections will result in a waiver of those objections for purposes

of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), 

the clerk is directed to set the matter for consideration on February 8, 2006.

January 24, 2006.

/s/ J. Kelley Arnold ________________ U.S. Magistrate Judge, J. Kelley Arnold

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