United States District Court, W.D. Missouri, Central Division
C. WIMES UNITED STATES DISTRICT COURT JUDGE
the Court is Magistrate Judge Whitworth's Report and
Recommendation granting the United States' Petition to
Enforce IRS Summonses. (Doc. #1). After an independent review
of the record, the Court adopts in part Magistrate Judge
Whitworth's findings of fact and conclusions of law, thus
granting in part and denying as moot in part the relief
sought by the United States.
April and June 2015, the IRS served administrative summonses
on Respondents George and Cookie Pate. In response to the
April summonses, Respondents appeared before the IRS, but
declined to answer any questions posed to them. In response
to the June summonses, Respondents did not appear, but
instead produced some, though not all documents requested in
the June summonses.
August 28, 2015, Magistrate Judge Whitworth issued an order
for Respondents to show cause why they should not be
compelled to obey the April and June 2015 summonses. The show
cause order also scheduled a hearing for November 5, 2015.
Respondents filed a response to the show cause order (Doc.
parties appeared at the November 5, 2015 show cause hearing
before Magistrate Judge Whitworth, with counsel. Judge
Whitworth heard evidence on the United States' petition
to enforce the April and June 2015 summonses. Thereafter,
Judge Whitworth issued the instant Report and Recommendation
filed objections to the Report and Recommendation, citing two
specific objections. First, Respondents argue enforcement of
the June 2015 summonses has been rendered moot because
Respondents have filed their 2012, 2013, and 2014 tax returns
since the enforcement petition was filed. Second, Respondents
argue enforcement of the April 2015 summonses should be
denied because compelling Respondents' testimony about
their living expenses and assets would violate their
constitutional rights against self-incrimination. (Doc. #10).
Petitioner filed a response to Respondents' objections
party files objections to the Report and Recommendation of a
Magistrate Judge, the district court conducts a de novo
review of the record and applicable law. United States v.
Lothridge, 324 F.3d 599, 600 (8th Cir. 2003).
facie case for enforcement of a summons requires the United
States to make a “minimal showing” that: (1) the
summons is for a legitimate purpose; (2) the material sought
by summons is relevant to the investigation; (3) the material
sought is not otherwise in the IRS's possession; and (4)
the administrative steps of the Internal Revenue Code have
been met. United States v. Powell, 379 U.S. 48,
57-58 (1964). If the United States presents a prima facie
case, the burden shifts to the respondent to disprove the
assertions made by the IRS in support of enforcement.
United States v. Norwood, 420 F.3d 888, 893 (8th
Court first considers Respondents' objection to
enforcement of the June 2015 summons on the basis that
compelling compliance at this stage is moot. Respondents
attached an email exchange to their objections to the Report
and Recommendation. (Doc. #11-2). The email exchange, dated
February 9, 2016, indicates counsel's confirmation
“that enforcement of the June Summonses is now moot,
” in light of the IRS's receipt of Respondents'
2012, 2013, and 2014 federal income tax returns. (Doc.
#11-2). The United States' response to Respondents'
objections makes reference only to the April 2015 summonses.
For these reasons, this Court concludes that the United
States concedes that the June 2015 summonses are now moot,
because Respondents have complied with the June 2015
summonses since issuance of the Report and Recommendation
(Doc. #10). The Court thus grants Respondents' objection
to the Petition to Enforce as it relates to the June 2015
contrast, with respect to Respondents' second objection,
the Court agrees with the findings and conclusions of
Magistrate Judge Whitworth and adopts the Report and
Recommendation with respect to the April 2015 summonses. This
Court's independent review of the record, the applicable
law, and the parties' arguments indicate the United
States has established a prima facie case for enforcement of
the April 2015 summonses under Powell. To the extent
Respondents object to enforcement of the April summonses
based on the 5th Amendment right against self-incrimination,
the objection is overruled and denied. Notably, this matter
has not been formally referred to the Department of Justice
up to this point. Additionally, the record does not indicate
that the IRS acted for any improper purpose or otherwise
outside the confines of the Internal Revenue Code. Finally,
the record provides no basis on which to find that
enforcement of the April 2015 summonses would constitute an
abuse of process. Accordingly, it is hereby
the United States' Petition to Enforce IRS Summonses
(Doc. #1) is GRANTED IN PART and DENIED IN PART. The petition
is GRANTED with respect to the April 2015 summonses, but
DENIED AS MOOT with respect to the June 2015 summonses. It is
Magistrate Judge Whitworth's findings of fact and
conclusions of law are ADOPTED with respect to the April 2015
summonses. To the extent the Report and Recommendation
recommends enforcement of the June 2015 summonses, the United
States concedes that the June 2015 summonses are denied as
moot. It is further ORDERED Magistrate Judge Whitworth's
Report and Recommendation (Doc. #10) shall be attached to and
made part of this Order, but is adopted only with respect to
the April 2015 summonses. To the extent the Report and
Recommendation relates to the June 2015 ...