                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1072
                                       ___________

                          ANTHONY A. MASCIANTONIO
                   doing business as THERMOALL REMODELING,
                                            Appellant

                                             v.

        UNITED STATES OF AMERICA; FIRST COMMONWEALTH BANK;
                    DAVID MCKINZIE, IRS Special Agent
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                        (D.C. Misc. Action No. 3-14-mc-00035)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 14, 2016
             Before: FUENTES, VANASKIE and SCIRICA, Circuit Judges

                              (Opinion filed: April 22, 2016)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Anthony Masciantonio is the sole proprietor of Thermoall Remodeling. In July

2014, he filed in the District Court a petition to quash two Internal Revenue Service (IRS)

summonses. The IRS had issued those summonses in connection with an investigation

into Masciantonio’s tax liabilities for his business.1 Masciantonio also sought a

protective order requesting that the Government be further prohibited from obtaining

discovery related to his business.2 The Government subsequently filed a motion for

summary enforcement and denial of Masciantonio’s petition to quash.

       In a December 17, 2015 order, the District Court denied Masciantonio’s petition to

quash the summonses as well as the other relief that he sought. The order further granted

the Government’s motion for summary enforcement. Masciantonio appeals.

       The District Court had jurisdiction pursuant to 26 U.S.C. §§ 7402(b) and 7609(h),

and we have jurisdiction pursuant to 28 U.S.C. § 1291. We 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).




1
  The IRS issued one of the summonses to First Commonwealth Bank. The other was
issued to Masciantonio and Thermoall Remodeling seeking business records for the
period between January 2009 and December 2012.
2
  Masciantonio additionally requested that the District Court order an in camera review of
a confidential report in the possession of the Treasury Inspector General for Tax
Administration (TIGTA). Masciantonio contended that the TIGTA report contained
exculpatory material and was subject to production based upon the Supreme Court’s
ruling in Brady v. Maryland, 373 U.S. 83 (1963).
                                              2
       Section 7602(a) of the Internal Revenue Code (“IRC”) authorizes the IRS to issue

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

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

revenue tax . . . , or collecting any such liability.” 26 U.S.C. § 7602(a). To establish a

prima facie case for the legality of a summons, the IRS must show that: (1) the

investigation will be conducted pursuant to a legitimate purpose; (2) the inquiry may be

relevant to the purpose; (3) the information sought is not already within the

Commissioner’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 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.” United States v. Rockwell Int’l, 897 F.2d 1255,

1262 (3d Cir. 1990).

       For the reasons identified by the District Court, we agree that the IRS has satisfied

the Powell factors. Briefly, the IRS provided a sworn declaration from an Agent

involved with Masciantonio’s case which supports the conclusion that the summonses

were issued for a legitimate purpose and that proper procedure was followed. Among

other things, the Agent declared that the summonses had been issued to determine the

correctness of Masciantonio’s tax returns for the years 2009 thought 2012 in order to

ascertain whether he had committed any offense under the Internal Revenue Code, which

                                              3
is a legitimate purpose under 28 U.S.C. § 7602(a). Further, all administrative steps

required for the issuance of the summons had been followed.

       Masciantonio has not set forth any information suggesting that the IRS acted in

bad faith or that it lacked the authority to issue either summons. Indeed, many of the

arguments that he raised in support of his petition to quash (and on appeal here) were

previously rejected by this Court in connection with Masciantonio’s appeal of the denial

of his petition to quash an earlier IRS summons. See Masciantonio v. United States, 528

F. App’x 120, 122 (3d Cir. 2013) (not precedential).3

       Accordingly, we will affirm the judgment of the District Court. Masciantonio’s

motion to refund the filing fee for this appeal is denied. See Porter v. Dep’t of the

Treasury, 564 F.3d 176, 179 (3d Cir. 2009).




3
  The District Court also correctly denied Masciantonio’s request for in camera review of
the TIGTA report. The District Court correctly observed that with few exceptions Brady
applies to criminal proceedings, see NLRB v. Nueva Eng’g, Inc., 761 F.2d 961, 969 (4th
Cir. 1985), and that a summons enforcement proceeding is a civil proceeding. Here, the
Government is not prosecuting Masciantonio. Rather, it is conducting an investigation to
determine whether he has complied with applicable tax laws. The District Court also
correctly denied Masciantonio’s request for a protective order under Federal Rule of Civil
Procedure 26(c) because he did not satisfy the criteria for obtaining such relief.
                                             4
