KIM R. GIBSON, District Judge.
Pending before the Court in this matter
This matter arises from two summonses issued by the IRS on July 15, 2014, both seeking the production of documents related to an IRS investigation into Petitioner's tax filings.
To establish a prima facie case for enforcement of a summons, the IRS must show that (1) the summons was issued for a proper purpose; (2) the information sought may be relevant to that purpose; (3) the information sought is not already in the IRS's possession; and (4) the required administrative steps have been taken. United States v. Powell, 379 U.S. 48, 57-58 (1964). "Once the IRS has made its prima facie case, the taxpayer bears the burden of disproving any one of the four Powell elements or otherwise demonstrating that' enforcement of the summons will result in an abuse of the court's process.'" Masciantonio v. United States, 528 F. App'x 120, 121 (3d Cir. 2013) (citing United States v. Rockwell Int'l, 897 F.2d 1255, 1262 (3d Cir. 1990).
Here, Agent David McKinzie stated in a sworn declaration that he issued both summonses as part of his investigation into whether Petitioner committed any offense under the Internal Revenue Code for tax years 2009 through 2012, and in order to determine the correct amount of income earned by Petitioner, as well as the correct amount of business expenses that he incurred. (ECF No. 4-1 ¶¶ 3-4). Determining the correctness of petitioner's tax returns and his corresponding tax liability is a legitimate purpose for which a summons may be issued. See 26 U.S.C. § 7602. Furthermore, the pertinent bank records and business records are directly related to Agent McKinzie's investigation, the information sought is not currently in the IRS's possession, and Agent McKinzie followed the proper administrative steps for issuing a summons. Accordingly, because the United States has adequately shown each element to establish a prima facie case, the United States' request to enforce the summonses will be granted. Likewise, because Petitioner has failed to raise any arguments sufficient to overcome the United States' prima facie showing that the summons should be enforced, his request to quash the summons will be denied.
Additionally, regarding the summons issued to First Commonwealth Bank ("the Bank"), as the Third Circuit has already noted regarding Petitioner's past attempts to quash summonses issued in this case, "the Supreme Court has already foreclosed [Petitioner's] arguments when asserted to defeat enforcement of an administrative summons served on third-party record keepers." Masciantonio v. United States, 528 F. App'x 120, 122 (3d Cir. 2013) (citing United States v. Miller, 425 U.S. 435, 444 (1976) ("[T]he issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant, even if a criminal prosecution is contemplated at the time of the subpoena is issued."); Fisher v. United States, 425 U.S. 391, 397 (1976)). Therefore, Petitioner's motion to quash the summons issued to the Bank is denied, and the Bank shall produce to the United States all relevant documents.
Next, Petitioner asserts that the IRS is conducting a criminal investigation rather than a civil investigation. (See ECF No. 1 at 3-6, ¶¶ 14-28). However, this Court has previously addressed this argument and, like before, now finds it to be without merit. Specifically, under 26 U.S.C. § 7602, the IRS may issue a summons in pursuit of criminal tax investigations, provided no Justice Department referral has been made as of the date the summons issued. See Moutevelis v. United States, 727 F.2d 313, 315 (3d Cir. 1984); Pickel v. United States, 746 F.2d 176, 183 (3d Cir. 1984). Petitioner has not presented any evidence of a Justice Department referral as of July 15, 2014—the date when the IRS issued the summons. The United States further established through Agent McKinzie's declaration that no Justice Department referral had been made as of September 23, 2014. (ECF No. 4-1 at 4 ¶ 15). Accordingly, Petitioner's argument is without merit.
Petitioner has asserted his Fifth Amendment privilege against self-incrimination as a defense to the summons issued to him.
Petitioner also appears to request an evidentiary hearing.
In sum, Petitioner has not presented any evidence showing that the two summonses issued by the IRS on July 15, 2014, are invalid. As such, Petitioner's motion to quash will be denied, and the United States' motion to enforce will be granted. Petitioner must submit for review by the Court any document that he believes is protected by the Fifth Amendment. Petitioner must provide to the IRS all non-privileged documents requested by the summons.
Petitioner has also filed a motion (ECF No. 12), pursuant to Brady v. Maryland, 373 U.S. 83 (1963), requesting an in camera review of a Treasury Inspector General for Tax Administration ("TIGTA") investigation report. Petitioner's motion lacks merit and must be denied. With few limited exceptions, Brady applies only to criminal cases and to the evidence that a prosecutor must provide to a criminal defendant. See Fox ex rel. Fox v. Elk Run Coal Co., 739 F.3d 131, 138 (4th Cir. 2014) ("[C]ourts have only in rare instances found Brady applicable in civil proceedings."). Thus, the Brady rule is inapplicable to administrative and civil proceedings, such as the IRS enforcement proceeding at issue in this case. See United States v. Koziol, 79 F.3d 1155 (9th Cir. 1996) ("A summons enforcement proceeding is civil, not criminal."). Accordingly, because Brady does not apply to the instant IRS civil summons enforcement proceeding, Petitioner's motion for an in camera review of the TIGTA investigation report is denied.
Finally, Petitioner has moved for a protective order, pursuant to Federal Rule of Civil Procedure 26(c)(1), "prohibiting Respondent from conducting discovery of Petitioner." (ECF No. 13 at 1). Petitioner's motion is simply an attempt to creatively recast his prior argument—that the IRS summonses should be quashed because they lack a basis in good faith.
