Local Rule Rule 4.1.2: Summons Enforcement Proceedings Pursuant to 26 U.S.C. Sections 7402(b) and 7604(a)

Rule 4.1.2 Summons Enforcement Proceedings Pursuant to 26 U.S.C. Sections 7402(b) and 7604(a)

(a) This rule applies to summons enforcement proceedings initiated pursuant to 26 U.S.C. §§ 7402(b) and 7604(a) (hereinafter enforcement proceedings).

(b) Each enforcement proceeding shall be initiated by complaint filed by the Secretary of the Treasury (hereinafter the Secretary) or the Secretary's delegate, which shall separately allege:

(1) that an investigation by the Internal Revenue Service is contemplated or in process, that such investigation has a legitimate purpose, and that the inquiry which is the subject of the enforcement proceeding may be relevant to that purpose.

(2) that the books, papers, records, data, or testimony sought are not already in the possession of the Internal Revenue Service; and

(3) that the Secretary or the Secretary's delegate has complied with all administrative procedures required by the Internal Revenue Code of 1954, as amended. Attached to the complaint shall be an affidavit of the Secretary or the Secretary's delegate in support of each of the allegations required by this rule.

(c) Process upon such complaint shall be in the form of an order signed by the court and served upon the person summoned, directing that person to appear at a date and time certain (not less than fourteen (14) days from the date of service of the order) and show cause why an order should not be entered enforcing the administrative summons. The order to show cause shall:

(1) set a date for the filing of an answer, motion or other responsive pleading by the person summoned, together with an affidavit in support thereof, and

(2) notify the person summoned that only those issues raised in the pleadings or motions and supported by affidavit will be considered by the court on the return date, and that any uncontested allegation in the complaint will be taken as admitted for the purpose of the enforcement proceeding.

(d) At the hearing upon the order to show cause, the Secretary or Secretary's delegate shall be prepared to prove the material allegations of the complaint. The person summoned may rebut the evidence offered by the Secretary or the Secretary's delegate, and shall have the burden of proof with respect to any affirmative defenses raised in the motions or responsive pleadings. If the interests of justice so require, the court may direct further proceedings in the matter, and may order such discovery as permitted by law. At the conclusion of the enforcement proceedings, the court shall make findings of fact and conclusions of law in conformity with Federal Rule of Civil Procedure 52(a).