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 ...