-DAD United States of America et al v. Ursua, No. 2:2011mc00001 - Document 7 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/8/11: Recommending 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 or her designated representative, twenty-one (21) days after the filing date of the summons enforcement order. Objections to F&R due within twenty-one (21) days. (Kaminski, H)

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-DAD United States of America et al v. Ursua 1 2 3 4 Doc. 7 BENJAMIN B. WAGNER United States Attorney YOSHINORI H. T. HIMEL #66194 Assistant United States Attorney Eastern District of California 501 I Street, Suite 10-100 Sacramento, California 95814-2322 Telephone: (916) 554-2760 5 Attorneys for Petitioners 6 7 8 IN THE UNITED STATES DISTRICT COURT FOR THE 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 UNITED STATES OF AMERICA and RENITA SANDERSON, Revenue Officer, Internal Revenue Service, 13 Petitioners, 14 15 16 Case No. 2:11-mc-00001-MCE-DAD MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATIONS RE: I.R.S. SUMMONS ENFORCEMENT v. DONAVAN R. URSUA, SR., Respondent. Taxpayer: DONAVAN R. URSUA, SR. and DONAVAN R. URSUA, SR. d/b/a "Maui Tan" 17 18 This matter came before me on February 25, 2011, under the Order to Show Cause 19 filed January 6, 2011, which, with the verified petition and memorandum, was served on 20 respondent’s agent for service of process, Mr. Bernard Dooley, EA, on January 22, 2011. 21 Yoshinori H. T. Himel appeared for petitioners, and petitioning Revenue Officer Renita 22 Sanderson was present. 23 Respondent did not file an opposition; but Mr. Bernard Dooley, EA, appeared on 24 behalf of respondent at the hearing and requested a continuance to comply with the 25 summonses. The petitioners requested enforcement of the petition. 26 The Verified Petition to Enforce Internal Revenue Service Summons initiating this 27 proceeding seeks to enforce two administrative summonses (Exhibit A to the petition) in 28 aid of Revenue Officer Sanderson’s investigation of Donavan R. Ursua, Sr.’s tax Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 1 Dockets.Justia.com 1 liabilities. First, an investigation was initiated to determine respondent's correct liability 2 for personal income tax for the tax years ending December 31, 2005, December 31, 2006, 3 December 31, 2007, and December 31, 2008. Donavan R. Ursua, Sr., subsequently 4 supplied returns for the tax years ending December 31, 2005, December 31, 2006, and 5 December 31, 2007. This investigation needs further tax determination information from 6 Donavan R. Ursua, Sr., only for the tax year ending December 31, 2008. Second, an 7 investigation was initiated to obtain financial information for the collection of assessed 8 Employer's Federal Quarterly Tax (Form 941) for the tax period ending March 31, 2008, 9 and for the collection of assessed U.S. income taxes for the tax years ending December 10 31, 2002, and December 31, 2003. Subject matter jurisdiction is invoked under 28 U.S.C. §§ 1340 and 1345, and is 11 12 found to be proper. I.R.C. §§ 7402(b) and 7604(a) (26 U.S.C.) authorize the government 13 to bring the action. The Order to Show Cause shifted to respondent the burden of 14 rebutting any of the four requirements of United States v. Powell, 379 U.S. 48, 57-58 15 (1964). I have reviewed the petition and documents in support. Based on the 16 17 uncontroverted verification of Revenue Officer Sanderson and the entire record, I make 18 the following findings: (1) The summonses issued by Revenue Officer Renita Sanderson to respondent, 19 20 Donavan R. Ursua, Sr., on April 15, 2010, seeking testimony and production of 21 documents and records in respondent's possession, were issued in good faith and for a 22 legitimate purpose under I.R.C. § 7602, that is, to determine his correct liabilities for 23 personal income tax for the tax year ending December 31, 2008, and to obtain financial 24 information for the collection of assessed Employer's Federal Quarterly Tax (Form 941) 25 for the tax period ending March 31, 2008 and for the collection of assessed U.S. income 26 taxes for the tax years ending December 31, 2002, and December 31, 2003. (2) The information sought is relevant to that purpose. 27 28 ///// Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 2 1 2 3 4 5 6 (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. 7 (6) The verified petition and its exhibits made a prima facie showing of 8 satisfaction of the requirements of United States v. Powell, 379 U.S. 48, 57-58 (1964). 9 (7) The burden shifted to respondent, Donavan R. Ursua, Sr., to rebut that prima 10 11 12 13 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. 14 Ursua, Sr., be enforced and that respondent be ordered to appear at the I.R.S. offices at 15 4330 Watt Avenue, Sacramento, California 95821, before Revenue Officer Renita 16 Sanderson, or her designated representative, twenty-one (21) days after the filing date of 17 the summons enforcement order, or at a later date to be set in writing by Revenue Officer 18 Sanderson, then and there to be sworn, to give testimony, and to produce for examining 19 and copying the books, checks, records, papers and other data demanded by the 20 summonses, the examination to continue from day to day until completed. I further 21 recommend that if it enforces the summonses, the Court retain jurisdiction to enforce its 22 order by its contempt power. 23 These findings and recommendations are submitted to the United States District 24 Judge assigned to the case, under 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 304 of the 25 Local Rules of the United States District Court for the Eastern District of California. 26 Within twenty-one (21) days after being served with these findings and recommendations, 27 any party may file written objections with the court and serve a copy on all parties. Such 28 a document should be titled "Objections to Magistrate Judge's Findings and Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 3 1 Recommendations." Any reply to the objections shall be served and filed within fourteen 2 (14) days after service of the objections. The District Judge will then review these 3 findings and recommendations pursuant to 28 U.S.C. § 636(b)(1). The parties are advised 4 that failure to file objections within the specified time may waive the right to appeal the 5 District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 The Clerk is directed to serve these findings and recommendations and future court 7 orders by mail to Mr. Donavan R. Ursua, Sr., 7914 McGann Court, Sacramento, CA 8 95829; with a courtesy copy to Mr. Bernard Dooley, EA, Dooley Tax & Financial 9 Services, Inc., 9845 Horn Road, Suite 290, Sacramento, CA 95827. 10 DATED: March 8, 2011. 11 12 13 14 Ddad1\orders.civil\ursua0001.f&r 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Magistrate Judge’s Findings and Recommendations Re: I.R.S. Summons Enforcement Page 4

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