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United States District Court

Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

UNITED STATES OF AMERICA,

Petitioner,

v.

JOSE HERNANDEZ,

Respondent.

Case No.5:17-cv-00040-HRL

ORDER FOR REASSIGNMENT TO A 

DISTRICT JUDGE

REPORT RECOMMENDATION RE 

PETITION TO ENFORCE IRS 

SUMMONSES

Re: Dkt. No. 1

This matter is before the court on an order to show cause why respondent Jose Hernandez 

should not be required to comply with Internal Revenue Service (IRS) summonses. Because not 

all parties have consented to proceed before a magistrate judge, see 28 U.S.C. § 636(c) and Fed. R. 

Civ. P. 73, the undersigned has prepared a report and recommendation as to the instant petition 

and directs the Clerk of the Court to reassign this case to a district judge. Based upon the record 

presented, as well as the discussion at the March 21, 2017 show cause hearing, this court 

recommends that the petition be GRANTED.

BACKGROUND

According to the petition, the IRS is investigating the collection of respondent’s tax 

liabilities for 2004-2007, 2009, and 2013-2015. (Pet. ¶ 3, Exs. A & B). The United States 

(petitioner) believes that Hernandez has possession and control of records, documents and other 

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information concerning the IRS’s inquiry, as to which the IRS has no access, possession or 

control. (See id. ¶ 5). As part of its investigation, petitioner served two summonses on 

respondent; and, the record before the court shows that service properly was made pursuant to 26 

U.S.C. § 7603.1(Id. ¶ 6, Exs. A & B). However, Hernandez did not appear or produce testimony 

or records as requested by the summonses. (See id., ¶ 8). By letter dated December 1, 2016, 

respondent was given another opportunity to comply with the summonses by appearing for an 

appointment with Revenue Officer Angela Phillips on December 20, 2016. (Id. ¶ 9, Ex. C). 

According to the petition, Hernandez has still not complied. (Id. ¶ 10).

On January 5, 2017, petitioner filed the instant action to enforce the summonses. This 

court issued an order to show cause, setting a briefing schedule and a hearing for March 21, 2017. 

(Dkt. 7). The record shows that Hernandez was duly served with the verified petition and the 

order to show cause on February 2, 2017. (Dkt. 8). However, the court received no written 

response to the order to show cause, and Hernandez did not appear at the show cause hearing.

DISCUSSION

Under 26 U.S.C. § 7602(a), the IRS is authorized to issue a summons relevant to the 

investigation of any taxpayer’s liability. Summons may be issued for the purposes of 

“ascertaining the correctness of any return, making a return where none has been made, 

determining the liability of any person for any internal revenue tax or . . . collecting any such 

liability . . ..” 26 U.S.C. § 7602(a); see also Crystal v. United States, 172 F.3d 1141, 1143 (9th 

Cir. 1999) (quoting 26 U.S.C. § 7602(a)). To enforce a summons, the IRS must first establish 

“good faith” by showing that the summons (1) is issued for a legitimate purpose; (2) seeks 

information relevant to that purpose; (3) seeks information that is not already in the IRS’s 

possession; and (4) satisfies all of the administrative steps set forth in the Internal Revenue Code.

United States v. Powell, 379 U.S. 48, 57-58 (1964). “‘The government’s burden is a slight one, 

 

1

Title 26 United States Code, Section 7603 provides that service of summons shall be made “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.” 26 U.S.C. § 7603(a). Further, “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.” Id.

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and may be satisfied by a declaration from the investigating agent that the Powell requirements 

have been met.’” Crystal, 172 F.3d at 1144 (quoting United States v. Dynavac, Inc., 6 F.3d 1407, 

1414 (9th Cir. 1993)). “The burden is minimal ‘because the statute must be read broadly in order 

to ensure that the enforcement powers of the IRS are not unduly restricted.’” Id. (quoting Liberty 

Fin. Servs. v. United States, 778 F.2d 1390, 1392 (9th Cir. 1985)).

Once the government has met its burden in establishing the Powell elements, if the 

taxpayer chooses to challenge the enforcement, he bears a heavy burden to show an abuse of 

process or lack of good faith on the part of the IRS. Indeed, “‘[e]nforcement of a summons is 

generally a summary proceeding to which a taxpayer has few defenses.’” Crystal, 172 F.3d at 

1144 (quoting United States v. Derr, 968 F.2d 943, 945 (9th Cir. 1992)). “‘The taxpayer must 

allege specific facts and evidence to support his allegations of bad faith or improper purpose.’” Id.

(quoting United States v. Jose, 131 F.3d 1325, 1328 (9th Cir. 1997)). As explained by the Ninth 

Circuit:

The taxpayer may challenge the summons on any appropriate grounds, 

including failure to satisfy the Powell requirements or abuse of the court’s 

process. Such an abuse would take place if the summons had been issued 

for an improper purpose, such as to harass the taxpayer or to put pressure on 

him to settle a collateral dispute, or for any other purpose reflecting on the 

good faith of the particular investigation. In addition, it has become clear 

since Powell that gathering evidence after having decided to make a 

recommendation for prosecution would be an improper purpose, and that 

the IRS would be acting in bad faith if it were to pursue a summons 

enforcement under these circumstances. While neither the Powell elements 

nor the LaSalle requirements is an exhaustive elaboration of what good faith 

means, still the dispositive question in each case is whether the Service is 

pursuing the authorized purposes in good faith.

Id. at 1144-45 (internal quotes and citations omitted).

While the government’s burden is not great, it is not necessarily satisfied by an agent’s 

mere assertion of relevance. United States v. Goldman, 637 F.2d 664, 667 (9th Cir. 1980). Once a 

summons is challenged, it must be scrutinized by the court to determine whether it seeks 

information relevant to a legitimate investigative purpose, and the court may choose either to 

refuse enforcement or narrow the scope of the summons. Id. at 668.

In the instant case, petitioner has met its burden of showing that the Powell elements have 

been satisfied, largely through the verification of the petition by Revenue Officer Phillips. See 

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Crystal 172 F.3d at 1144 (stating that it was undisputed that the special agent’s declaration 

satisfied the Powell requirements and that the government therefore “established a prima facie 

case to enforce the summonses”); Dynavac, Inc., 6 F.3d at1414 (stating that the government’s 

burden “may be satisfied by a declaration from the investigating agent that the Powell 

requirements have been met.”); United States v. Bell, 57 F. Supp.2d 898, 906 (N.D. Cal. 1999) 

(“The government usually makes the requisite prima facie showing by affidavit of the agent.”).

Here, the verified petition indicates that the IRS’s investigation is being conducted for a 

legitimate purpose of ascertaining respondent’s assets and liabilities as part of an effort to 

investigate federal tax liabilities for certain periods of time. (Pet. ¶ 3). The summonses are

relevant to that purpose and asks respondent to appear and bring with him documents pertaining to 

his assets and liabilities (e.g., bank statements, checkbooks, canceled checks, saving account 

passbooks, and records or certificates of deposit). (See id., Exs. A & B). The petition further 

indicates that the information is not already in the IRS’s possession, that there has been no referral 

for criminal prosecution of this matter, and that all administrative steps required by the internal 

Revenue Code for the issuance of the summons have been taken. (Id. ¶¶ 5, 7, 11-12).

Because petitioner has met its burden in establishing the Powell elements, the burden shifts 

to Hernandez to disprove the actual existence of a valid civil tax determination or collection 

purpose. As discussed above, he did not file any response to the order to show cause and did not 

appear at the show cause hearing. This court therefore finds that he has not met his burden of 

showing an abuse of process or lack of good faith on the part of the IRS and recommends that the 

verified petition to enforce the IRS summonses be granted. In any event, at the motion hearing, 

petitioner advised that it has been in contact with Hernandez’s accountant, who reports that 

Hernandez is willing to cooperate with the government to resolve this matter.

Based on the foregoing, this court ORDERS the Clerk of the Court to reassign this case to 

a district judge, with the RECOMMENDATION that the petition be granted and that an order be 

issued enforcing the IRS summonses and directing Hernandez to appear before the IRS on a date 

certain to provide testimony and produce the requested documents and records.

Any party may file objections to this report and recommendation with the district judge 

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within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1)(B), (C); Fed. R. Civ. P. 

72. Petitioner is directed to promptly serve a copy of this report and recommendation on Hernandez 

and to file a proof of service with the court.

Dated: March 21, 2017

HOWARD R. LLOYD

United States Magistrate Judge

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5:17-cv-00040-HRL Notice has been electronically mailed to:

Thomas Moore tom.moore@usdoj.gov, CaseView.ECF@usdoj.gov, 

EDWARD.SOLIS@USDOJ.GOV, kathy.tat@usdoj.gov

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