* * AMENDED BLD
- 246 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13

- 1361

___________ ANTHONY A. MASCIANTONIO, d/b/a Thermoall Remodeling,

Appellant

v. UNITED STATES OF AMERICA; FIRST COMMONWEALTH BANK

___ _________________________________ On Appeal from the United States District Court for the Western District of Pennsylvania ( W .D. Pa. Misc. No. 3

- 12

- mc - 00039 ) District Judge: Honorable Kim R. Gibson

____________________________________ Submitted for Poss ible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

May 16, 2013
Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

(Opinion filed : June 12, 2013 )

_________ OPINION

_________2

PER CURIAM Anthony Masciantonio appeals an order of the District Court granting the
Government’s motion to enforce an Internal R evenue Service (“IRS”) summons served

on First Commonwealth Bank for the purpose of determining Masciantonio ’s tax liability. For the following reasons, we will affirm t he judgment of the District Court. Because we write for the parties’ benefit, we will recite only the essential facts.
The IRS is currently auditing Masciantonio’s 2010 and 2011 income tax returns to
determine the correctness of those returns and his tax liabilities for those years. The audit
is primarily focused on income and expenses related to Masciantonio’s business, Thermoall Remodeling . At an August 2012 meeting with IRS Agent Ida Mikula (“Agent Mikula”) , Masciantonio provided some records to Agen t Mikula, but told her that he could not afford the expense of obtaining the remaining documents from First
Commonwealth Bank. He then sent Agent Mikula a letter confirming that he would not incur any more expenses to produce the requested documents.
As a result, Agent Mikula issued a n administrative summons to First
Co mmonwealth Bank for the records

. Agent Mikula sent a copy of the summons to
Masciantonio and his wife

. Masciantonio subsequently filed in the District Court a petition to quash the summon s
. On January 11, 2013, t he District Court issued an order3

denying Masciantonio ’s petition to quash, and granting the Government’s motion to
enforce. Masciantonio appeals. 1
The District Court had jur isdiction pursuant to 26 U.S.C. §§ 7402(b) and 7609(h ), and we have juris diction pursuant to 28 U.S.C. § 1291. W e review questions of fact for clear error and questions of law de novo

. See United States v. Ins. Consultants of Knox, Inc. , 187 F.3d 755, 759 (7th Cir. 1999). Section 7602(a) of the Internal Revenue Code (“IRC”) authorizes the IRS to issue

a summons “[f]or the purpose of ascertaining the corr ectness of any return, making a

return where none has been made, determining the liability of any person for any internal

revenue tax . . . , or collectin g any such liability.” To establish a prima facie case for the legalit y of a summons, the IRS must show that: (1) the investigation will be conducted pursuant to a legitimate purpose; (2) the inquiry may be r elevant to the purpose; (3) the
information sou ght is not already within the Commiss ioner’s possession; and (4) the
administrative steps required by the IRC have been followed. United States v. Powell , 379 U.S. 48 , 57

– 58 (1964)

. Once the IRS has made its prima facie case, the taxpayer
bears the burde n 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.” United States v. Rockwell Int’l , 897 F.2d 1255, 1262 (3d Cir. 1990).

1 The District Court entered a separate order that same day denying Masciantonio’s request that sanctions be imposed upon the Government. Masciantonio also appeals from that order.4

As he did below, Mascia ntonio a rgues that the summons was not issued in good faith because his tax returns were selected for audit by a field office based solely on his proximity to that office. We disagree. A good faith inquiry satisfies the first prong of Powell

-- a legitimat e investigative
purpose. Rockwell , 897 F.2d at 1262 (“[T]he requirement of legitimate purpose means nothing more than that the government’s summons must be issued in good faith pursuant to one of the p owers granted under 26 U.S.C. § 7602.”). Here, Agen t Mikula stated in a sworn declaration that she issued the summons to
determine the correctness of Masciantonio’s 2010 and 2011 tax returns and corresponding tax liabilities , which is a legitimate purpose under 28 U.S.C. § 7602(a)

. ( See Dist

. Ct

. Dkt

. #5 , Exh. 2

. ) Further , Masciantonio indicated in his petition to quash
that he had been informed by Agent Mikula that his tax return was selected through a computer

- generated process. ( Id. at Dkt. #1 , p. 1 .) Thus, we agree with the District Court’s finding that that the summons was issued for a legitimate purpose in this case , and not in bad faith

. 2

2 We further agree that under these ci rcumstances, the District Court did not err in denying Masciantonio ’s request for an evidentiary hearing, and for discovery, before granting the motion to enforce. See United States v. Garden State Nat’l Bank , 607 F.2d 61, 71 (3d Cir. 1979) (determining n o evidentiary hearing is required if “the taxpayer cannot refute the government’s prima facie Powell showing or cannot factually support a proper affirmative defense. ”) M asciantonio ’s conclusory assertions did not provide any basis for an evidentiary hea ring

.5

Masciantonio also argues that the IRS failed to provide him advance notice , as is required under 26 U.S.C. § 7602(c), that a third

- part y bank would be contacted

. However, according to Agent Mikula’s declaration , Masciantonio informed her at their meeting that he was unwilling to incur the expense of obtaining his banking records . In
turn, she told Masciantonio that the records could be summoned at the Governmen t’s
expense. Masciantonio then sent Agent Mikula a letter indicating that he would not pay
to ob tain the bank records. ( See Dist. Ct. Dkt. #1, attached letter of September 3, 2012. ) Thus, we agree with the District Court that the IRS gave Masciantonio “ reasonable notice” under § 7602(c) that his records would be summoned

. 3 Finally, Masciantonio asserts that enforcing the summons would violate the protections granted by the Fourth and Fifth Amendments to the United States
Constitution. However, t he Supr eme Court has already foreclosed these arguments when
asserted to defeat enforcement of an administrative summons served on third

- party record keepers. See United States v. Miller , 425 U.S. 435 , 444 (1976); Fisher v. United States , 425 U.S. 391 , 397 (1976 ).

3 Masciantonio also argues that Agent Mikula incorrectly informed him that he had 30 days to respond to the third

- party summons. See 28 U.S.C. § 7609(b)(2) (providing that a taxpayer may file a petition to quash in the district court within twenty d ays after the IRS has given notice of the service of the summons upon the third

- party record keeper. ) However, we agree with the Government that Masciantonio ’s claim is of no moment because the summons notice informed him of the 20

- day time period and, in any event, he timely filed his petition to quash in the District Court.6

As Masciantonio’s appeal presents no substantial question, we will summarily
affirm the District Court’s order denying his petition to quash and granting the Government’s motion to enforce , as well as its order denying Masciantonio’s request for

san ctions

. See Third Cir. LAR 27.4; I.O.P. 10. Masciantonio’s motion to vacate the
Cl erk’s Order dated February 8, 2013 is dismissed as moot. Masciantonio’s “ Motion to Stay Pending Full Investigation of the Internal Revenue Service Practice of Tar get Audit s of Persons and Groups ” is denied.