The Honorable R. E. Longstaff, United States District Judge for the Southern 1 Distri ct of Iowa, adopting the report and recommendations of the Honorable Ross A. Walters, United States Magistrate Judge for the Southern District of Iowa. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2973

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. Paul W. Graber, * * [UNPUBLISHED] Appellant. *

___________ Submitted: January 2, 1998 Filed: January 9, 1998

___________ Before McMILLIAN, BEAM, an d MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ PER CURIAM.

Pa ulW. Graber appeals from the district court & s civil contempt order entere d 1 ag ainst him for failure to provide the Internal Revenue Service (IRS) documents i n co mpliance with the court & s April 1996 order, enforcing an IRS summons fo r documents and testimony regarding Graber & s 1988-1994 tax liability. We affirm.-2-

Graber argues that the enforcement order was invalid. We find that th e governmen t & s petition and attachments sufficiently supported a good faith basis fo r enforcement. See United States v. Powell , 379 U.S. 48, 57-58 (1964); Tax Liabs. of: John Does, All Unknown Employees of Boundary W aters Restaurant v. United States , 866 F.2d 1015, 1018-19 (8th Cir. 1989). Graber & s response, including his claim that he had not “elected” to be treated as a United States citizen and was not born “subject to t he Internal Revenue Tax,” as well as his denial of possession of pertinen t documents “for lack of information to form a belief,” failed to create a fact question or to meet his burden of showing a legitimate basis for contesting the summons. Se e United States v. Lawn Builders of New England , 85 6 F.2d 388, 392-93 (1st Cir. 1988) ( s ummoned party & s denial based on “lack [of] knowledge or information sufficient to form a belief” insufficient to meet burden of proving nonpossession).
We conclude the contempt order was proper. At the contempt hearing, th e government produced clear and convincing evidence that Graber did not produce the documents in compliance with the enforcement order. See Wycoff v. Hedgepeth , 34 F

. 3d 614, 616 (8th Cir. 1994) (burden of proof). Although Graber denied having the documents, he provided no further explanation or evidence. Graber failed to object to the magi strate judge & s report and recommendation finding him in contempt, and th e district court did not clearlyor plainly err in finding Graber did not meet his burden of proving a “present inability to comply with the earlier enforce ment order.” See United Stat es v. Rylander , 460 U.S. 752, 757, 760-61 (1983) (enforcement order contain s “implied finding that no defense of lack of possession or control had been raised and sustain ed,” and gives rise to “presumption of continuing possession arising from th e enforcement

order”; in contempt proceeding, defendant bears burden of producin g eviden ce establishing his present inability to comply with court order); Wright v

. Nichols , 80 F.3d 1248, 1250 (8th Cir. 1996) (factual findings in contempt orde r re viewedfor clear error); Griffini v. Mitchell , 31 F.3d 690, 692 (8th Cir. 1994 ) (re viewing factual findings for plain error where no objections to magistrate judge & s report).-3-

Accordingly we affirm. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.