United States of America v. Abusch

Filing 8

ORDER ADOPTING REPORT AND RECOMMENDATIONS 7 , with additions. The Petition to Enforce Internal Revenue Service Summons is GRANTED, and defendant is ordered to comply with the summons no later than ten (10) days from the date of this order.. Signed by Chief Judge Sarah S. Vance on 6/26/13.(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA

CIVIL ACTION

VERSUS

NO: 13-2367

SIDNEY ABUSCH

SECTION: R

ORDER
Before the Court are the United States of America's Petition
to Enforce Internal Revenue Summons1 and defendant Sydney
Abusch's Answer.2 On May 29, 2013, the Magistrate conducted a
show cause hearing and thereafter issued a Report and
Recommendation.3 The Court has reviewed de novo the petition, the
record, the applicable law, and the Magistrate Judge's Report and
Recommendation. No objection to the Magistrate's Report has been
filed. The Court agrees with the Magistrate Judge's Report and
Recommendation and adopts it as its own, with the following
additions.
In an attempt to rebut the Government's prima facie showing
that enforcement of the summons is proper, Abusch contends that
two of the requirements set forth in United States v. Powell, 379
U.S. 48, 57-58 (1964), are not met. First, he argues that the

1

R. Doc. 1.

2

R. Doc. 6.

3

R. Doc. 7.

materials sought "are already in possession of the IRS."4 Second,
he states that some of the documents sought –- those that pertain
to the year 2007 -- "are not germane to the examination of the
years 2008, 2009, and 2010."5
Abusch has failed to meet his heavy burden to rebut the
Government's prima facie case. With regard to his claim that the
IRS is already in possession of the materials in question, Abusch
has failed to "do more than simply produce evidence that would
call into question the IRS's prima facie case." Zugerese Trading,
LLC v. IRS, 579 F. Supp. 2d 781, 786 (E.D. La. 2008). In fact,
Abusch has produced no evidence on this score at all; he has
merely made a bald assertion that the IRS already has the
records.6 An unadorned, unsupported statement is insufficient to
rebut the government's showing that one of the Powell
requirements is satisfied. See, e.g., United States v. Trenk, No.
06-1004, 2007 WL 174327, at *3 (D.N.J. Jan. 22, 2007) (noting
that a summons should be enforced without an evidentiary hearing
if the taxpayer cannot raise an affirmative defense and
"factually support" it, such as by submitting an affidavit).
Abusch's relevancy claim fails as well. The standard for
relevance in summons enforcement cases is exceedingly low; "the

4

R. Doc. 6 at 1, 5.

5

R. Doc. 6 at 2.

6

R. Doc. 6 at 1.
2

requested documents need only be 'relevant' in the sense that
they have the potential to shed some light on any aspect of the
taxpayer's return." Zugerese, 579 F. Supp. 2d at 787-78 (internal
quotation marks omitted); see also United States v. Arthur Young
Co., 465 U.S. 805, 814 (1984) (noting that the language of § 7602
"reflects Congress' express intention to allow the IRS to obtain
items of even potential relevance to an ongoing investigation").
Documents pertaining to the year 2007 certainly "have the
potential to shed some light on [some] aspect of" Abusch's
returns for 2008, 2009, and 2010.
Accordingly, the Petition to Enforce Internal Revenue
Service Summons is GRANTED, and defendant is ordered to comply
with the summons no later than ten (10) days from the date of
this order.

New Orleans, Louisiana, this 26th day of June, 2013.
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_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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