United States v. Rescino ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 UNITED STATES OF AMERICA, Case No. 20-cv-00881-BLF 8 Plaintiff, ORDER ADOPTING REPORT AND 9 v. RECOMMENDATION; AND GRANTING VERIFIED PETITION TO 10 NICHOLAS C. RESCINO, ENFORCE INTERNAL REVENUE SUMMONS 11 Defendant. [Re: ECF 1, 18] 12 13 14 The Court has reviewed the Report and Recommendation (“R&R”) of Chief Magistrate 15 Judge Joseph C. Spero (ECF 18), recommending that the Court grant Petitioner United States of 16 America’s Verified Petition to Enforce Internal Revenue Summonses (ECF 1) against Respondent 17 Nicholas C. Rescino. Rescino has not filed an objection to the R&R and the deadline to object has 18 elapsed. See Fed. R. Civ. P. 72(b)(2) (deadline for objection is fourteen days after being served 19 with report and recommendation); Decl. of Benjamin J. Wolinsky, ECF 22 (Respondent served 20 with R&R by email on August 6, 2020 and by mail on August 7, 2020). 21 The Court finds the R&R to be correct, well-reasoned and thorough. In particular, the 22 Court agrees with Judge Spero’s conclusion that the United States has met its burden of 23 establishing that the summons was issued in good faith as required under the holding of United 24 States v. Powell, 379 U.S. 48, 57-58 (1964). The burden thus shifts to Rescino to show lack of 25 good faith or abuse of process on the part of the United States. See id. at 58. Judge Spero granted 26 Rescino an opportunity to make such showing by issuing an Order to Show Cause why the 27 petition should not be granted. See OSC, ECF 5. Rescino neither responded to the Order to Show 1 Accordingly, IT IS HEREBY ORDERED as follows: 2 (1) The R&R is ADOPTED by the Court; 3 (2) The Verified Petition to Enforce Internal Revenue Service Summons is 4 || GRANTED; 5 (3) As soon as is practicable, the United States SHALL submit to the Court a proposed 6 || order requiring Rescino to appear before a Revenue Officer to give testimony and produce the 7 items described in the IRS Summons. Consistent with the R&R and in light of health concerns 8 || arising from the COVID-19 pandemic, the proposed order shall provide for Rescino’s appearance 9 || by telephone and Rescino’s submission of records by electronic means. The proposed order shall 10 || include the date and time of Rescino’s telephonic appearance before the Revenue Officer, the 11 deadline for Rescino’s electronic submission of records, and clear instructions to Rescino 12 || regarding the telephonic appearance and electronic submission of records. 13 (4) This order terminates ECF 1 and 18. 14 IT IS SO ORDERED. 16 = 17 Dated: August 25, 2020 hem Lh haman BETH LABSON FREEMAN 19 United States District Judge 20 21 22 23 24 25 26 27 28