Free Declaration - District Court of Delaware - Delaware

Case 1:06-mc-00003-KAJ

Document 3

Filed 01/04/2006

Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA THOMAS ANASTASIA, SPECIAL AGENT
) ) ) )

OF THE INTERNAL REVENU SERVICE,

Petitioners,
v.

)
) ) )

Ben-Cen, Inc.
Respondent.
DECLARTION

) ) )

Thomas Anastasia, a petitioner herein, declares:

1. I am a duly commissioned Special Agent employed by the
Internal Revenue Service Criminal Investigations Division at 409
Silverside Rd., Room 133, Wilmington, DE 19809.

2. In my capacity as a Special Agent, I am conducting an
investigation of Russell D. Applegate and taxable income he

received during the tax years 1999, 2000, 2001, 2002, 2003, and

2004.
3. In furtherance of the above investigation and in
accordance with 26 U.S.C. § 7602, I issued on July 28, 2005 an
administrative summons, Internal Revenue Service Form 2039, to

the respondent, Ben-Cen, Inc., for corporate records and

documents described in an attachment to the summons. The summons
is attached to the petition as Exhibit A.

4. The time for appearance noted on the summons was August
8, 2 a a 5 at 4: a a pm .

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-25. In accordance with 26 U. S. C. § 7603, I served an attested copy of the summons as described in paragraph 3 above on
the respondent by handing it to Russell D. Applegate, an officer

and majority shareholder of Ben-Cen, Inc. who is authorized to

receive process, as evidenced in the certificate of service on
the reverse side of the summons.

6. No notice was required to be served in accordance with

26 U.S.C. § 7609 (c) (2) (A) and (E).
7. On August 8, 2005, Mr. Applegate did not appear in
response to the summons.

8. On August i1, 2005, I met with Mr. Applegate at his
place of business, Ben-Cen, Inc. dba Deerhead Hot Dogs, located

in Wilmington, DE. During this meeting, I asked Mr. Applegate
for the summonsed corporate records and documents, and he replied
that he did not have them, Mr. Applegate

stated that he would

contact an attorney shortly to resolve the matter.

9. On August 18, 2005, Mr. Applegate contacted me by
telephone and informed me that he would be meeting with an
attorney on August 24, 2005, and would contact me on August 25,

2005 regarding the summonsed corporate records and documents.

10. On August 31, 2005, I attempted to contact Mr.
Applegate by telephone and left a telephone voicemail message as
a follow-up to our August 18, 2005 telephone discussion asking
him to call me.

Case 1:06-mc-00003-KAJ

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-311. Mr. Applegate's failure to comply with the summons
continues to the date of this declaration.

12. The corporate records and documents of Ben-Cen, Inc.
sought by the summons are not already in the possession of the
Internal Revenue Service.

13. All administrative steps required by the Internal
Revenue Code for issuance of the summons have been taken.

14. It is necessary to obtain the corporate records and
documents of Ben-Cen, Inc. sought by the summons in order to

determine Mr. Applegate's taxable income and compute the
corresponding tax liability for the years 1999, 2000, 2001, 2002,

2003, and 2004. The Internal Revenue Service has not made any
recommendation for criminal prosecution to the Department of

Justice.
I declare under penalty öf perjury that the foregoing is
true and correct.

Executed this

lOth

day of

November

, 2005.

~ia._~
THOMAS ANASTAS IA

Special Agent

~
Case 1:06-mc-00003-KAJ Document 3 Filed 01/04/2006 Page 4 of 7

Summons
In the matter of RUSSELL D. APPLEGATE, dba BEN-CEN, INC. (DEERHAD HOT DOGS)
Intemal Revenue

Servce (Divsion): Crial Investigation

Industry/Area (name or number): Baltiore Field Offce
Periods: 1999,2000,2001,2002,2003,2004

The Commissioner of Internal Revenue
To: BEN-CEN, INC. (DEERHAD HOT DOGS)

At: 3301 Lancaster Pike, Wilmigtn, DE 19805; 620 S. Marland Ave, Wilmington, DE 19804
You are hery sunmoned and reuire to appear before Special Agent Thoma Antaia or his designee
an offcer of the Intemal Revenue Seivce. to give tesony and to bring wl you and to prouce for exmination the following books. rerds. paers.
and other data relàting to the tax liability or the colledlon of the tax liabilty or for the purpose of Inquiring into any offense conneded with the

administrtion or enforceent of the inteal revenue laws conceing the person idenlld above for th periods shown.

See Attchment.

Do not write in this space

Business address and telephone number of IRS offcer before whom you are to appear:

)
Place and time for apparance at Interal Revenue Serice. Criminl Investigation

fj IRS , . (ye" ~. ~da~
on the 8th day

409 Silverside Road, Room 133, Wilington, DE 19809 (phone 302-792-6566)

,of August . 2005 at 4:00 o'clock -L m.
(ye"
Title
TiUe

Issued under authori of the Internal Revenue Code this 28th day of . July 2005

Departent of the Treaury

Internal Revenue Service

Special Agent

ww.lrs.gov

Signature of ii¡suing offcer

Fomi 2039 (Rev. 12-2001)
Catalog Number 21405J

Signature of approving offcer (if applicable)

Original - to be ~

,.

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ATTACHMENT TO SUMMONS ISSUED TO: RUSSELL D. APPLEGATE, dba BEN.. CEN, INC. (DEERHEAD HOT DOGS)

FOR THE YERS: 1"999 - 2004
Aii corporate recòrds and books of account relative to the financial

transactions of

RUSSELL D. APPLEGATE
To include but not limited to:

ALL CORPORATE BOOKKEEPING RECORDS and other financial records including General Ledger, General Journals, all Subsidiary Ledgers and Journals, Gross Receipts and income records, Cash Receipts and Disbursement records and/or Journals, sales

and Purchase records and/or Journals, Accunts Receivable and Payable Ledgers and
records, Bad.Debt records, Cost of Goods Sold records, Loan Receivable and Payable Ledgers, Voucher Register and all sales and expense iiivoices including all invoices
documenting expenses paid bycash (currency) or bank check (cashier or teller checks) and retained copies of any bank checks (cashier or teller checks.)

Inventory records establishing beginning and ending inventories including inventory sheets, work-papers, and valuation recorcs. Records and work-papers reflecting the purchase, basis and depreciable life of assets. Records and work-papers of sales of corporate assets such records disclosing the dates of purchase and sale, cost and sales price, records establishing or adjusting asset basis. .

Corporate Minute Book. Stock Register or other records reflecting ownership of corporate stock. All financial. statements, -bookkeeper's and/or accountant's workpapers used in the preparation of corporate records or tax returns. Re1ainèd copies of all
federal and state income. payroll and excise tax returns. .

SAVINGS ACCOUNT RECORDS: Including passbooks or bank statements, records reflecting dates and amounts of deposits, withdrawals, interest, debit and credit memos,

deposit slips, records reflecting the identit of checks deposited, withdrawal slips, and
records disclosing the disposition of withdrawals, Forms 1099, debit and credit memos. Records of any certifcates of deposit, money market certificates, U.S. Treasury Notes

or Bils purchased.
CHECKING ACCOUNT RECORDS: Including bank statements, deposit slips., records revealing the identity of checks drawn on the account, checks deposited, all debit and

credit memos, and Forms 1099 issued.
LOAN RECORDS: Including applications, financial statements, loan collateral, credit and background investigations required, loan agreements, notes or mortgages, settlement sheets, contracts,.retained cOpies of checks issued for loans, repayment
. Page 1 of 2

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records, including records revealing the date, amount and method of repayment (cash or check), checks used to repay loans and a reC9rd disclosing the total amount of discount or interest paid annually, records of any liens,loans correspondence files and internal memoranda relative to these loans.
RECORD FORMA Ti In addition to hard copies, records are requested in the form of
magnetic media. Data

may be provided in 31/2 inch diskettes or compact disks (CDs).

ASCII fixed length files are preferred, however, ASCII delimited format is acceptable. A record layout for the data is also requested.

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Case 1:06-mc-00003-KAJ

Document 3

Filed 01/04/2006

Page 7 of 7

Service of Summons, Notice and Recordkeeper Certificates

Date i Time 07/2812005 '.
(Pursuant to secon 7603, I~mal Revenue Code)

I certify that I served the summons shown on the front of this form on:

il :00 A 11.

1. i) I certfy that I handed a copy of the summons. which contained the attestation require by
r § 7603. to the person to whom it was direced.

How Summons .

2. 0 J certify that I

Was Served

left a copy of the summons, which contained the attestation required by left the copy With the following persn (If any):
§ 7603. at the last and usual place of abode of the person to whom it was directed. I

3. 0 I certfy that I sent a copy of the summons. which contained the attestation required by
§ 7603, by certed or registered mail to the last known address was direced, that person being a third-part recrd I sent the summons to the following add

of the person to whom it keeper witin the meaning of § 7603(b).

res . 3301 Lancaste Pike, Wilmgton, DE 19805, 20 S. M land Ave, Wilmington,

Signature

4. This certificate is made to show compliance with IRe
Secion 7609. This certifcate does

, whether or not records of the business transactions or

served on any offer or employee of the person to whose
liabilty the summons relates nor to summonses in aid of

not apply to summonses

affirs of an identifed person have been made or kept.
I certify that, within 3 days of serving the summons, I gave notice (Part D of Form 2039) to the person named below on the date and in the manner indicated.

collecton, to determine the identit of a person having a numbered accunt or similar arrngement, or to determine

Date of giving Notice: 07/2812005

Time:

/1:wA.M

Name of Noticee: RUSSELL D. APPLEGATE, dba BEN-CEN, INC. (DEERHEAD HOT DOGS)
Address of Noticee (if mailed): 1102 Hopeton Road Wilmington, DE 19807

How Notice Was Given

. I gave notice by certified or registered mail

to the last known address of the noticee.
o I

.~ r gave notice by handing It to the noticee.
o In the absence of a last known address of the
noticee, I

left the notice' at the last and usual place
of abode of the noticee. I

left the copy wit

left the notice with the person summoned.

the following person Qf any).

o No notice is required.

Signature

C..~__~

Special Agent l1ifle

J certif that the period prescribed for beginning a proceeding to quash this summons

Signature L"/ ~ ~~~" -~

such proceeding was instituted or that the noticee consents to the examination.

has expired and that no

i Title

Special Agent
Form 2039 (Rev, 1 -