Case 6.08-mc-00021 -GAP-DAB Document 22 Filed 06/26/2008 Page 1 of 4

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

 UNITED STATES OF AMERICA		)	No. 6:08-mc-21-01-1-XXX XX
Petitioner,				)
					)
V.					)	MOTION FOR DISTRICT COURT
					)	TO CONSTRUE MAY 7,2008 ORDER
DR. TOM PATRIOT,			)	AS A REPORT AND RECOMMENDATION
Respondent.				)

Petitioner, the United States of America, hereby moves this Court to construe the May 7, 2008 Order (Doc. 18) enforcing the Internal Revenue Service (IRS) summons as a Report and Recommendation, and enter an Order enforcing the summons.

Factual and Procedural Background
The IRS is conducting an investigation into the collection of the individual income tax assessments of Respondent, John Hines, for various tax years between 1997 and 2003. In connection with that investigation and in accordance with 26 U.S.C. 9 7602, an IRS summons was issued to Respondent on May 3, 2007, requiring that he give testimony and produce for examination books, papers, records, or other data as described in the summons. Docs. 1-3 & 1-4.

The summons commanded Respondent to appear on May 22,2007, and he failed to do so. Doc. 1-3 at 774-5. Accordingly, on February 26, 2008, the United States filed a petition to enforce the IRS summons in this action, and the Magistrate Judge issued an Order to Show Cause on February 28, 2008. Doc. 4.

In response to the Order to Show Cause, Respondent filed a motion to dismiss and a motion to quash. The motion to quash asserted that the summons was improper as part of a criminal investigation, too broad, improperly served, and issued without proper authorization. The motion to dismiss raised Fifth Amendment challenges. Docs. 5 & 8.
On May 7, 2008, the Magistrate Judge issued an Order enforcing the IRS summons and denying the Respondent's motions. Doc. 18. In granting the Petitioner's Petition to Enforce the summons, the Court stated that "on or before May 28, 2008, Dr. Tom Patriot is ordered to produce all responsive documents set forth in the Summons. . ." Id. at p. 10. Respondent objected to the May 7, 2008 Order, in part challenging the Magistrate Judge's authority to issue a final order of enforcement. Doc. 19. Respondent did not comply with the summons by May 28, 2008. In light of the Respondent's objections to the Magistrate Judge's entry of the May 7, 2008 Order enforcing the summons and prior to Petitioner filing any motion for contempt for Respondent's failure to comply, the Petitioner requests that the District Court construe the May 7, 2008 Order as a Report and Recommendation, and issue a separate Order enforcing the summons and rejecting the arguments raised in the Respondent's motions for the reasons articulated by the Magistrate Judge.

Memorandum of Law
Pursuant to the Internal Revenue Code, district courts have jurisdiction to compel compliance with an IRS summons. In this regard, 26 U.S.C. 9 7604(a) provides, If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data. See also 2 6 U.S.C. § 7402(b).
Courts have interpreted this provision as requiring that a District Court enter a final order of enforcement. See senerallv United States v. Wisnowski, 580 F.2d 149, 150 (5th Cir. 1978) ("it was beyond the magistrate's enumerated powers . . . to conduct such enforcement proceedings or to render a final decision in such a civil case"); United States v. First Nat'l Bank of Atlanta, 628 F.2d 871, 873 (5th Cir. 1980)("[t]he applicable sections of the Code restrict the power to enforce a 7602 summons to the district courts."); United State v. Mueller, 930 F.2d 10, 12 (8th Cir. 1991)(district court properly construed final order of Magistrate Judge enforcing IRS summons as a report and recommendation); U.S. v. Sweet, 1980 WL 1507 at *2 (Jan. 28, 1980, M.D. Fla.). Furthermore, while section 7604(b) of the Internal Revenue Code does appear to confer jurisdiction on a Magistrate Judge to decide contempt proceedings in an IRS summons enforcement case, courts have construed this provision narrowly. See generallv United States v. Bell, 57 F. Supp. 2d 898, 904 (N. €3. Cal. 1999) (summarizing cases and concluding that "the weight of authority indicates that 7604(b) does not confer jurisdiction upon a magistrate judge.").

Conclusion
Based upon these authorities, the United States respectfully requests that the Court construe the May 7, 2008 Order as a Report and Recommendation for enforcement of the IRS summons. Petitioner further requests that the Court then enter an order enforcing the summons and adopting the Magistrate Judge's ruling disposing of the Respondent's various arguments against enforcement.

Dated: June 26, 2008

Respectfully submitted, ROBERT E. O'NEILL

Scott H. Park Assistant United States Attorney Identifying No. USA 084 501 W. Church Street, Suite 300 Orlando, Florida 32805 Telephone: (407) 648-7543 Facsimile: (407) 648-7588 Email: scott.park@usdoi.gov

I hereby certify that on June 26, 2008, I electronically filed the foregoing MOTION FOR DISTRICT COURT TO CONSTRUE MAY 9,2008 ORDER AS A REPORT AND RECOMMENDATION with the Clerk of the Court by using the CMIECF system, and mailed the foregoing document and the notice of electronic filing by first class mail to the following non-CMIECF participants:

Dr. Tom Patriot/span>
St. Cloud, FL 34772

__/s/_____________________ 
Assistant United States Attorney/span>