UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 06-mc-024-PB

Michael Caswell

REPORT AND RECOMMENDATION

This case involves a petition to enforce an Internal Revenue

Service (IRS) Summons brought pursuant to the provisions of 26

U.S.C. §§ 7402(b) and 7604(a). 

The summons was issued to taxpayer Michael Caswell seeking

to have him testify and produce all documents and records in his

possession or control concerning income earned in the years 2003

and 2004. The summons directed taxpayer to appear on June 21,

2005 at 10:30 a.m. Taxpayer did not appear and has not complied

with the summons. The records sought are not in the possession

of the IRS, all administrative steps have been taken, and the

taxpayer’s testimony and records are necessary to determine tax

liability. (Exhibit A attached to Petition to Enforce). 

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DISCUSSION

In order to enforce its summons the IRS must show: (1) that

the summons was issued for a legitimate purpose; (2) that the

information sought may be relevant to that purpose; (3) that the

information is not already in the IRS’ possession; and (4) that

the administrative steps required by the Internal Revenue Code

for issuance and service of the summons have been followed. 

United States v. Powell, 379 U.S. 48, 57-58 (1964); United States

v. LaSalle National Bank, 437 U.S. 298, 313-314 (1978). The IRS

generally makes this showing a prima facie case on these four

elements through the affidavit or declaration of the agent. 

United States v. Sancetta, M.D., P.C., 788 F.2d 67, 71 (2nd Cir.

1986); United States v. Garden State National Bank, 607 F.2d 61,

68 (3rd Cir. 1979); United States v. Will, 671 F.2d 963 (6th Cir.

1982). 

The burden is then upon the taxpayer to show that the

summons is invalid or enforcement would be an abuse of the

Court’s process. United States v. Powell, 379 U.S. at 58; United

States v. LaSalle National Bank, 437 U.S. at 316. The respondent

must prove specific facts to support a legally sufficient

rebuttal or defense. See United States v. KIS, 658 F.2d 526,

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536-539 (7th Cir. 1981), cert. denied sub nom., Salkin v. United

States, 455 U.S. 1018 (1982). 

The taxpayer has not disputed any of the government’s prima

facie case. In fact, the defendant did not appear. The

government has met its burden. The defendant has not met his

burden.

It is recommended that the taxpayer, Michael Caswell, be

ordered to obey the summons and that he be ordered to appear on

July 31, 2006 at 9:00 a.m. at 195 Commerce Avenue, Portsmouth,

New Hampshire, before Stephen Jerome, to give testimony and

produce all books and records in his possession or control

required and called for by the terms of the summons of June 2,

2006. 

It is further recommended that the government be awarded its

costs. 

Any objections to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law 

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Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).

 

James R. Muirhead

United States Magistrate Judge

Date: June 19, 2006

cc: Gretchen Leah Witt, Esq.

 Michael Caswell

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