14‐4330 United States v. Rozbruch

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2nd day of November, two thousand and fifteen.

PRESENT: CHESTER J. STRAUB, RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, Circuit Judges. ____________________________________________

UNITED STATES OF AMERICA,

Plaintiff‐Counter‐Defendant‐Appellee,

‐v.‐ No. 14‐4330

JACOB ROZBRUCH, MARSHA ROZBRUCH, EAST 72ND STREET ORTHOPAEDIC SURGERY SPECIALISTS, PC,

Defendants‐Cross‐Defendants‐Appellants. ____________________________________________

FOR APPELLANTS: Jeremy Klausner (Lawrence Sannicandro, on the brief), Agostino & Associates, Hackensack, NJ.

FOR APPELLEE: Tomoko Onozawa, Assistant United States Attorney (Benjamin Torrance, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY. ____________________________________________

Appeal from the United States District Court for the Southern District of

New York (Gorenstein, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the District Court be and

hereby is AFFIRMED.

Defendants‐Appellants Jacob Rozbruch, Marsha Rozbruch, and East 72nd

Street Orthopaedic Surgery Specialists, P.C. (collectively “Appellants”) appeal

from a judgment of the United States District Court for the Southern District of

New York, entered pursuant to Federal Rule of Civil Procedure 54(b), against the

Rozbruchs for unpaid Trust Fund Recovery Penalty (“TFRP”) liabilities. We

assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal.1

We review the district court’s grant of summary judgment de novo. Kaytor v. Elec. Boat 1

Corp.,

(2d Cir. 2010).

2 Appellants argue that the District Court erred in holding that TFRPs

imposed pursuant to Section 6672(a) of the Internal Revenue Code,

(a), do not trigger the written supervisory approval requirement of Section

6751(b)(1),

§ 6751(b)(1). But even assuming, without deciding, that TFRPs are

governed by Section 6751(b)(1), the record here nevertheless supports a finding

that the Government functionally satisfied Section 6751(b)(1)’s written

supervisory approval requirement. Thus, we affirm the District Court’s grant of

summary judgment, which reduced to judgment Appellants’ unpaid TFRPs. See

Thyroff v. Nationwide Mut. Ins. Co.,

(2d Cir. 2006) (“[W]e are free

to affirm a decision on any grounds supported in the record, even if it is not one

on which the trial court relied.”).

We have considered all of Appellants’ remaining arguments and find them

to be without merit. Accordingly, for the reasons set forth above, the judgment

of the District Court is AFFIRMED.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

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