UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Case No. 06-mc-42-SM

Michael Spinelli

REPORT AND RECOMMENDATION

This case involves a petition to enforce an Internal Revenue

Service (IRS) Summons brought pursuant to the provisions of 26

U.S.C. §§ 7402(b) and 7604(a). 

The summons was issued to taxpayer Michael Spinelli seeking

to have him testify and produce all documents and records in his

possession or control concerning assets and liabilities. The

summons directed taxpayer to appear on April 24, 2006 at 9:00

a.m. Taxpayer did not appear and has not complied with the

summons. The records sought are not in the possession of the

IRS, all administrative steps have been taken, and the taxpayer’s

testimony and records are necessary to determine tax liability. 

(Exhibit A attached to Petition to Enforce). 

The taxpayer personally appeared pro se in response to the

Order to Show Cause and filed no responsive pleading of any type. 

Case 1:06-mc-00042-SM Document 5 Filed 10/12/06 Page 1 of 4
2

DISCUSSION

In order to enforce its summons the IRS must show: (1) that

the summons was issued for a legitimate purpose; (2) that the

information sought may be relevant to that purpose; (3) that the

information is not already in the IRS’ possession; and (4) that

the administrative steps required by the Internal Revenue Code

for issuance and service of the summons have been followed. 

United States v. Powell, 379 U.S. 48, 57-58 (1964); United States

v. LaSalle National Bank, 437 U.S. 298, 313-314 (1978). The IRS

generally makes this showing a prima facie case on these four

elements through the affidavit or declaration of the agent. 

United States v. Sancetta, M.D., P.C., 788 F.2d 67, 71 (2nd Cir.

1986); United States v. Garden State National Bank, 607 F.2d 61,

68 (3rd Cir. 1979); United States v. Will, 671 F.2d 963 (6th Cir.

1982). 

The burden is then upon the taxpayer to show that the

summons is invalid or enforcement would be an abuse of the

Court’s process. United States v. Powell, 379 U.S. at 58; United

States v. LaSalle National Bank, 437 U.S. at 316. The respondent

must prove specific facts to support a legally sufficient

rebuttal or defense. See United States v. KIS, 658 F.2d 526,

Case 1:06-mc-00042-SM Document 5 Filed 10/12/06 Page 2 of 4
3

536-539 (7th Cir. 1981), cert. denied sub nom., Salkin v. United

States, 455 U.S. 1018 (1982). 

The taxpayer has not disputed any of the government’s prima

facie case. In fact, Michael Spinelli has stated that he will

appear and produce records as ordered. 

It is recommended that the taxpayer, Michael Spinelli, be

ordered to obey the summons and that he be ordered to appear on

December 11, 2006 at 8:30 a.m. at 410 Amherst Street, Suite 350,

Nashua, New Hampshire, before Mary Beyers, to give testimony and

produce all books and records in his possession or control

required and called for by the terms of the summons of April 6,

2006. 

It is further recommended that the government be awarded its

costs. 

Any objections to this report and recommendation must be

filed within ten days of receipt of this notice. Failure to file

objections within the specified time waives the right to appeal

the district court’s order. See Unauthorized Practice of Law 

Case 1:06-mc-00042-SM Document 5 Filed 10/12/06 Page 3 of 4
4

Committee v. Gordon, 979 F.2d 11, 13-14 (1st Cir. 1992); United

States v. Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986).

 

James R. Muirhead

United States Magistrate Judge

Date: October 12, 2006

cc: T. David Plourde, Esq.

 Michael Spinelli

 

Case 1:06-mc-00042-SM Document 5 Filed 10/12/06 Page 4 of 4