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Cooper v. United States

United States District Court, D. Nebraska

July 31, 2017

CHRISTOPHER D. COOPER, President, e-Formulate Inc., Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         This matter is before the court on the pro se Petitioner's Motion to Quash IRS Summons (Filing No. 1). For the reasons set forth below, the Motion will be denied.

         BACKGROUND

         The Internal Revenue Service (“IRS”) is conducting an investigation to determine whether Petitioner Christopher D. Cooper, president of e-Formulate, Inc., is a “responsible person” for purposes of the Trust Fund Recovery Penalty in connection with unpaid federal employment taxes owed by e-Formulate. Petitioner seeks to quash an IRS Summons issued to Wells Fargo Bank, N.A., requiring Wells Fargo to provide copies of e-Formulate's bank records. Petitioner asks the court to order the IRS to “cease and desist any and all actions” until his legal challenges to the Summons are addressed, as well as compensation for his time and expenses in responding to the IRS's “frivolous” Summons. (Filing No. 1 at CM/ECF pp. 18-19.)

         On behalf of Respondents[1] IRS and Revenue Officer Colby Schwan, the United States Attorney's Office has filed an Opposition to Petitioner's Motion to Quash IRS Summons (Filing No. 7) and an Index of Evidentiary Material in support thereof (Filing No. 6). The Petitioner has not responded to the Respondents' Opposition.

         FACTS

         Because the Petitioner has not offered any evidence opposing or contradicting the following facts set forth in the Declaration (Filing No. 6-1) filed by Respondent IRS Revenue Officer Schwan, I shall consider such facts undisputed:

         1. IRS Revenue Officer Colby Schwan is in the process of investigating the liability of Petitioner Christopher D. Cooper for Trust Fund Recovery Penalties relating to unpaid federal employment taxes owed by e-Formulate, Inc., for the following taxable periods: June 30, 2015; September 30, 2015; December 31, 2015; and March 31, 2016.

         2. In furtherance of this investigation, and in accordance with 26 U.S.C. § 7602, Schwan issued an IRS Summons to Wells Fargo Bank, N.A., on May 3, 2017. The Summons directed Wells Fargo to produce for examination certain documents and records concerning banking matters of e-Formulate, Inc., by June 1, 2017. (Filing No. 6-1 at CM/ECF p. 4.)

         3. Because Petitioner Christopher D. Cooper is the President of e-Formulate, the IRS believes that e-Formulate's banking records are highly relevant in determining whether or not Petitioner is a “responsible person” of that entity for purposes of the Trust Fund Recovery Penalty.

         4. On May 4, 2017, and in accordance with 26 U.S.C. § 7603(b), Schwan served an attested copy of the IRS Summons described in paragraph (2), above, on Wells Fargo Bank, N.A., by certified mail, as evidenced in the certificate of service on the reverse side of the Summons. (Filing No. 6-1, at CM/ECF p. 5.)

         5. On May 4, 2017, Schwan also served the notice required by section 26 U .S .C. § 7609(a) on Petitioner Christopher D. Cooper by certified mail, as evidenced in the certificate of service of notice on the reverse side of the Summons. (Filing No. 6-1, at CM/ECF p. 5.)

         6. The documents and records sought by the Summons are not already in the possession of the Internal Revenue Service.

         7. Schwan believes he has taken all administrative steps required by the Internal Revenue ...


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