IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 8, 2011
UNITED STATES OF AMERICA AND
RENITA SANDERSON, REVENUE OFFICER, INTERNAL REVENUE SERVICE, PETITIONERS,
TAXPAYER: DONAVAN R. URSUA, SR., DONAVAN R. URSUA, SR. AND DONAVAN R. URSUA, SR. D/B/A RESPONDENT. "MAUI TAN"
MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT
This matter came before me on February 25, 2011, under the Order to Show Cause filed January 6, 2011, which, with the verified petition and memorandum, was served on respondent's agent for service of process, Mr. Bernard Dooley, EA, on January 22, 2011. Yoshinori H. T. Himel appeared for petitioners, and petitioning Revenue Officer Renita Sanderson was present.
Respondent did not file an opposition; but Mr. Bernard Dooley, EA, appeared on behalf of respondent at the hearing and requested a continuance to comply with the summonses. The petitioners requested enforcement of the petition.
The Verified Petition to Enforce Internal Revenue Service Summons initiating this proceeding seeks to enforce two administrative summonses (Exhibit A to the petition) in aid of Revenue Officer Sanderson's investigation of Donavan R. Ursua, Sr.'s tax liabilities. First, an investigation was initiated to determine respondent's correct liability for personal income tax for the tax years ending December 31, 2005, December 31, 2006, December 31, 2007, and December 31, 2008. Donavan R. Ursua, Sr., subsequently supplied returns for the tax years ending December 31, 2005, December 31, 2006, and December 31, 2007. This investigation needs further tax determination information from Donavan R. Ursua, Sr., only for the tax year ending December 31, 2008. Second, an investigation was initiated to obtain financial information for the collection of assessed Employer's Federal Quarterly Tax (Form 941) for the tax period ending March 31, 2008, and for the collection of assessed U.S. income taxes for the tax years ending December 31, 2002, and December 31, 2003.
Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government to bring the action. The Order to Show Cause shifted to respondent the burden of rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
I have reviewed the petition and documents in support. Based on the uncontroverted verification of Revenue Officer Sanderson and the entire record, I make the following findings:
(1) The summonses issued by Revenue Officer Renita Sanderson to respondent, Donavan R. Ursua, Sr., on April 15, 2010, seeking testimony and production of documents and records in respondent's possession, were issued in good faith and for a legitimate purpose under I.R.C. § 7602, that is, to determine his correct liabilities for personal income tax for the tax year ending December 31, 2008, and to obtain financial information for the collection of assessed Employer's Federal Quarterly Tax (Form 941) for the tax period ending March 31, 2008 and for the collection of assessed U.S. income taxes for the tax years ending December 31, 2002, and December 31, 2003.
(2) The information sought is relevant to that purpose.
(3) The information sought is not already in the possession of the Internal Revenue Service.
(4) The administrative steps required by the Internal Revenue Code have been followed.
(5) There is no evidence of referral of this case by the Internal Revenue Service to the Department of Justice for criminal prosecution.
(6) The verified petition and its exhibits made a prima facie showing of satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964).
(7) The burden shifted to respondent, Donavan R. Ursua, Sr., to rebut that prima facie showing.
(8) Respondent presented no argument or evidence to rebut the prima facie showing.
I therefore recommend that the IRS summonses issued to respondent Donavan R. Ursua, Sr., be enforced and that respondent be ordered to appear at the I.R.S. offices at 4330 Watt Avenue, Sacramento, California 95821, before Revenue Officer Renita Sanderson, or her designated representative, twenty-one (21) days after the filing date of the summons enforcement order, or at a later date to be set in writing by Revenue Officer Sanderson, then and there to be sworn, to give testimony, and to produce for examining and copying the books, checks, records, papers and other data demanded by the summonses, the examination to continue from day to day until completed. I further recommend that if it enforces the summonses, the Court retain jurisdiction to enforce its order by its contempt power.
These findings and recommendations are submitted to the United States District Judge assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the Local Rules of the United States District Court for the Eastern District of California. Within twenty-one (21) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be titled "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The District Judge will then review these findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
The Clerk is directed to serve these findings and recommendations and future court orders by mail to Mr. Donavan R. Ursua, Sr., 7914 McGann Court, Sacramento, CA 95829; with a courtesy copy to Mr. Bernard Dooley, EA, Dooley Tax & Financial Services, Inc., 9845 Horn Road, Suite 290, Sacramento, CA 95827.
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