Free Petition to Enforce IRS Summons - District Court of Delaware - Delaware

Case 1:06-mc-00003-KAJ

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Filed 01/04/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA,

Plaintif,
v.
BEN-CEN, INe.
3301 Lancaster Pike

Case No.

Wilmington, Delaware
Defendant.

COMPLAINT TO ENFORCE INTERNAL REVENUE SUMMONS
PLAINTIFF, the United States of America, by and through its attorneys, shows

unto this Court as follows:
1. This proceeding is brought pursuant to 26 U.se. §§ 7402(b) and 7604(a) (2000)

to judicially enforce an admistrative summons issued by the Internal Revenue Service.
JURISDICTION & VENUE
2. The Court has subject

matter jurisdiction over this action pursuant to 28 U.se.

§§ 1340 and 1345 (2000) and 26 U.se. §§ 7402(b) and 7604(a) (2000).
3. Venue is properly laid in this district pursuant to 28 U.S.e. § 1391(b)(1) & (2)

(2000) and 26 U.5.e. § 7604(a), in that the summoned party resides, is found, and/ or

conducts business or maintains records in this judicial district.
PARTIES
4. Plaintif, the United States of America, is the sovereign.

5. Defendant, Ben-Cen, Inc., is a Delaware corporation, with a business address

of 3301 Lancaster Pike, Wilmigton, Delaware within the jurisdiction of this Court.

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CLAIM FOR RELIEF

6. Thomas Anastasia is a special agent, employed by Internal Revenue Service
Criminal Investigations Division.

7. In Special Agent Anastasia's capacity as a special agent, he is conductig an
investigation concerning the Federal income tax liabilties of Russell D. Applegate. The
purpose of the investigation is to determie the Federal income tax liabilties of Russell

D. Applegate for the years 1999,2000,2001,2002,2003, and 2004.
8. Based on information developed during Special Agent Anastasia's

investigation, Russell D. Applegate is an officer and majority shareholder of Ben-Cen,
Inc.

9. In furtherance of the investigation of Applegate, and in accordance with 26
U.5.e. § 7602, on

July 28, 2005, Special Agent Anastasia issued an admistrative

summons, Internal Revenue Service Form 2039, to Ben-Cen, Inc. The summons directed
Ben-Cen, Inc. to give testiony and to produce for examnation on August 8, 2005,

corporate records as described in the attachment to the summons. The summons
requested information of Ben-Cen, Inc. in'cönnection with the tax years 1999, 2000, 2001,

2002,2003, and 2004, as more fully described in the attachment to the summons. Special
Agent Anastasia served the summons ön Ben-Cen, Inc. on July 28, 2005, by personally

handing a copy of the summons to Russell D. Applegate.
10. Ben-Cen, Inc. did not appear on August 8, 2005 to give testiony or to

produce for examiation the corporate records as described in the attachment to the
summons. As of December 19, 2005, Ben-Cen, Inc. had not appeared to give testimony

and has not produced any records for examination.
11. The corporate records sought by the July 28, 2005 summons directed to Ben-

Cen, Inc. are not in the possession of the Internal Revenue Service.

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

13. It is necessary to obtain the testimony and to examie the books, records,
papers, and other data sought by the summons directed to Ben-Cen, Inc. in order to

determine the correct amount of individual income tax for Russell D. Applegate for the
years 1999, 2000, 2001, 2002, 2003 and 2004.

16. No "Justice Department referral" is in effect with respect to Russell D.

Applegate. More specifically, the Internal Revenue Service has not made a

recommendation to the Department of Justice for a grand jury investigation or crimnal
prosecution of Russell D. Applegate for the tax years under investigation. The Internal
Revenue Service also is not delaying a recommendation to the Department of Justice in

order to collect additional information. Moreover, the Department of Justice has not
made any request under 26 U.se. § 6103(h)(3)(B) for the disclosure of any return or

return inormation (as those terms are defined in 26 U.se. § 6103(b)) relating to Russell
D. Applegate.

WHREFORE, plaintif, the United States of America, prays:
A. That the Court order defendant, Ben-Cen, Inc., to obey the summons served

upon it, and each and every requirement thereof, and order the attendance and
testimony of defendant, and the production of the records, papers, and other data as
required by the terms of the summons before Special Agent Thomas Anastasia, or any
authorized officer of the Internal Revenue Service, at such time and place as may be fixed by Special Agent Anastasia or any authorized officer of the Internal Revenue
Service;

B. That the United States recover its costs in maintainng this action; and

C. That the Court render such other and further relief as is just and proper under
the circumstances.
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DATE: January 3, 2006.
Respectflly submitted,

COLM F. CONNOLLY

United States Attorney

NNIFE . BEST
P.O. Box 227

, ,W

rial Attorney, Tax Division
u.S. Department of Justice

Ben Franin Station
Washigton, DC 20044

Telephone (202) 307-0714

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