The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 9:24-cv-80199-LEIBOWITZ/MATTHEWMAN
J. FREDERIC BONOMO
and GABRIELLA BONOMO,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.
_______________________________/
ORDER ADOPTING AND AFFIRMING REPORT AND RECOMMENDATION
THIS CAUSE is before the Court upon the Report and Recommendation on Cross-Motions
for Summary Judgment [ECF No. 50] (“Report and Recommendation”), filed on February 13, 2025,
by United States Magistrate Judge William Matthewman. The Magistrate Judge recommends denying
Plaintiffs’ motion for summary judgment and granting Defendant’s motion for summary judgment.
[Id. at 1, 8]. Plaintiffs filed timely objections [ECF No. 52], which this Court has reviewed. Upon due
consideration of the motions, the parties’ papers, the relevant portions of the record, and the
governing law, the Court ADOPTS AND AFFIRMS the Report and Recommendation for the
reasons stated below.
I. BACKGROUND
This dispute is over the late payment of trust income tax that resulted in a civil tax penalty
being levied against Plaintiffs, who now sue under 26 U.S.C. § 7422 for a refund. [See ECF No. 1].
Specifically, Plaintiffs were assessed a civil penalty of $20,642.25 “for [their] failure to timely file a
Form 3520A-Annual Information Refund for Foreign Trust with U.S. Owner for tax year 2018.” [Id.]
The Magistrate Judge found Plaintiffs failed to meet their burden to show that they mailed the subject
Form 3520A by the October 15, 2019, deadline.1 Further, Plaintiffs’ representations that the form
was timely mailed is contradicted by a letter from counsel that accompanied Plaintiffs’ late filing,
stating the form was mailed on October 17, 2019. [See Def.’s SMF 44–45]. Accordingly, the Magistrate
Judge recommends that Plaintiff’s Motion for Summary Judgment be denied, and that Defendant’s
Motion for Summary Judgment be granted. Plaintiff’s objections improperly relitigate the issues raised
in their motion which have been considered by the Magistrate Judge. [See ECF No. 52].
II. STANDARD OF REVIEW
In reviewing a Report and Recommendation, the district court “shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to
which objection is made.” 28 U.S.C. § 636(b)(1). “Parties filing objections to a magistrate’s report
and recommendation must specifically identify those findings objected to. Frivolous, conclusive, or
general objections need not be considered by the district court.” United States v. Schultz, 565 F.3d 1353,
1361 (11th Cir. 2009) (quoting Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988) (internal
quotation marks omitted)). “Whenever a litigant has a meritorious proposition of law which he is
seriously pressing upon the attention of the trial court, he should raise that point in such clear and
simple language that the trial court may not misunderstand it, and if his point is so obscurely hinted
at that the trial court quite excusably may fail to grasp it, it will avail naught to disturb the judgment
on appeal.” United States v. Zinn, 321 F.3d 1084, 1087–88 (11th Cir. 2003).
A party’s objections are improper if they expand upon and reframe arguments already made
and considered by the magistrate judge, or simply disagree with the magistrate judge’s conclusions.
See Melillo v. United States, No. 17-CV-80489, 2018 WL 4258355, at *1 (S.D. Fla. Sept. 6, 2018); see also
Marlite, Inc. v. Eckenrod, No. 10-23641-CIV, 2012 WL 3614212, at *2 (S.D. Fla. Aug. 21, 2012) (“It is
1 The Magistrate Judge also found that Plaintiffs’ Motion for Summary Judgment should be
denied for failure to comply with the Local Rule 56.1. [ECF No. 50 at 2].
improper for an objecting party to . . . submit [ ] papers to a district court which are nothing more
than a rehashing of the same arguments and positions taken in the original papers submitted to the
Magistrate Judge. Clearly, parties are not to be afforded a ‘second bite at the apple’ when they file
objections to a R & R.”) (quoting Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F. Supp.
380, 382 (W.D.N.Y. 1992)). When the objecting party has not properly objected to the magistrate
judge’s findings, “the court need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” See Keaton v. United States, No. 14-21230-CIV, 2015 WL
12780912, at *1 (S.D. Fla. May 4, 2015); see also Lopez v. Berryhill, No. 17-CV-24263, 2019 WL 2254704,
at *2 (S.D. Fla. Feb. 26, 2019) (stating that a district judge “evaluate[s] portions of the R & R not
objected to under a clearly erroneous standard of review” (citing Davis v. Apfel, 93 F. Supp. 2d 1313,
1317 (M.D. Fla. 2000)).
To demonstrate plain error, an objector must show that: “(1) an error occurred; (2) the error
was plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness of the judicial
proceedings.” United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). An error is not plain
unless it is contrary to explicit statutory provisions or to on-point precedent in this Court or the
Supreme Court. See Schultz, 565 F.3d at 1356–57 (citing United States v. Lejarde–Rada, 319 F.3d 1288,
1291 (11th Cir. 2003)).
III. DISCUSSION
A. Plaintiff is not entitled to judgment as a matter of law.
When requesting relief under Section 7422(a), a taxpayer must overcome the presumption of
correctness that is attributed to government tax assessments. See United States v. Janis, 428 U.S. 433,
440 (1976). A taxpayer who challenges the validity of an assessment, “bears the burdens of both
production and of persuasion.” United States v. McCombs, 30 F.3d 310, 318 (2d Cir. 1994) (citations
omitted). That is, the taxpayer must present evidence to establish that the challenged IRS assessment
was erroneous. See Webb v. Internal Rev. Svc., 15 F.3d 203, 205 (1st Cir.1994) (finding that taxpayer
failed to meet this burden); Liddon v. United States, 448 F.2d 509, 514 (5th Cir.1971) (“A plaintiff seeking
a refund of a partial payment of a section 6672 penalty has the burden of proving that the penalty
assessment was erroneous both as to the plaintiff’s refund claim and as to the Government’s
counterclaim for the unpaid balance of the assessment”).
Plaintiffs made four arguments in support of their Motion for Summary Judgment, only two
of which needed to be addressed by the Magistrate Judge. First, Plaintiffs say they did, in fact, file the
Form3520A on time (on October 15, 2019). [ECF No. 45 at 4–5]. The Magistrate Judge correctly
found that this representation was contradicted by the record. [ECF No. 50 at 3]. Thus, Plaintiffs
failed to meet their burden to show that the assessment of the civil penalty for late filing was erroneous.
Second, Plaintiffs maintain the IRS should have granted Florida taxpayers a four-month extension due
to the impact of Hurricane Dorian. [Id. at 5–6]. That wish does not entitle Plaintiffs to summary
judgment. The Treasury Secretary has discretion to postpone certain tax payment deadlines by reason
of a federally declared disaster for “qualified taxpayers.” See 26 U.S.C. § 7509A. Plaintiffs do not
allege that such a declaration was made, or that they would qualify. So, the second argument is a non-
starter. Third, Plaintiffs theorize that their Form3520A may have been lost by the IRS due to the
closure of the processing facility in early 2020 because of COVID-19. [Id. at 7]. That theory is
unsupported by the record—which reflects the processing center received Plaintiffs’ Form 3520A on
October 18, 2019, accompanied by a letter stating the form was untimely mailed on October 17, 2019.
[Def.’s SMF ¶ 40]. Further, Plaintiffs “freely admit” they have no evidence whatsoever that they timely
mailed the form. [ECF No. 52 at 2]. Fourth, Plaintiffs contend that, even if their filing was late, the
amount of the penalty is “egregious.” [Id. at 7–9]. The Magistrate Judge correctly rejected that
argument, finding the $20,642.25 penalty lawful. [ECF No. 50 at 7 (“Five percent of the gross
reportable amount of the Trust, $412,845, equals $20,642.25…. It is simple math.” (citing 26 U.S.C.
§ 6677(a)-(b))]. Accordingly, Plaintiffs failed to meet their burden to show that the amount of the
penalty was erroneous.
Having failed to meet their burden, the Magistrate Judge correctly recommended denying
Plaintiff’s motion for summary judgment.
B. Defendant is entitled to summary judgment.
Because Plaintiffs have not met their burden under either 26 U.S.C. § 7422(a) or § 6672(a), the
United States is entitled to summary judgment. Perlman v. United States, No. 00-3703-CIV-GOLD,
2002 WL 575788, at *7 (S.D. Fla. Mar. 5, 2002).
In sum, the Magistrate Judge correctly recommended that Defendant’s motion for summary
judgment be granted.
IV. CONCLUSION
The undersigned made a de novo determination as to those portions of the Report and
Recommendation to which an objection has been made. Having considered the Report and
Recommendation and all objections thereto timely filed, the undersigned has determined that the
Report and Recommendation should be adopted.
Accordingly, it is hereby ORDERED AND ADJUDGED as follows:
1. The Magistrate Judge’s Report and Recommendation [ECF No. 50] is ADOPTED
AND AFFIRMED and incorporated by reference in this Order.
2. Plaintiff’s Amended Motion for Summary Judgment [ECF No. 45] is DENIED.
3. Defendant’s Cross Motion for Summary Judgment [ECF No. 46] is GRANTED.
4. All pending motions, including Defendant’s Motion in limine [ECF No. 55] are
DENIED AS MOOT.
5. The Clerk is DIRECTED to enter Judgment for Defendant.
DONE AND ORDERED in the Southern District of Florida on February 28, 2025.
8 ’
é
DAVID §, LEIBOWITZ
UNITED STATES DISTRICT JUDGE
CC: counsel of record