Mid-South Music Corp. v. Kolak

MERRITT, Circuit Judge. Plaintiff Mid-South Music Corporation, appeals from the District Court's dismissal of its suit against the United States and various officials of the Internal Revenue Service seeking compensatory and punitive damages for alleged violation of its statutory and constitutional rights. The alleged violations arose from a pre-filing letter sent by IRS officials in Nashville to investors in a tax shelter marketed by Mid-South, informing them that based on IRS review of Mid-South “purported tax deductions” from that investment would not be allowed and investors claiming such deductions would be subject to penalties. In its second amended complaint, plaintiff claims that this letter caused the destruction of its business and loss of income, depriving it of property in violation of the Fifth Amendment’s requirement of due process. In addition, Mid-South argues that this letter revealed its identity as a taxpayer and the fact that it was subject to IRS audit, thereby disclosing tax return information in violation of 26 U.S.C. § 6103.1 The District Court held that the United States had not waived sovereign immunity from the constitutional claim and that a cognizable Fifth Amendment property interest had not been alleged in any event. He also ruled that the individual defendants were not amenable to suit for the statutory violations because 26 U.S.C. § 7431(a)(1) provides for suit against the United States as the exclusive remedy for violations of Section 6103. On the statutory claim against the United States, the Court held that no violation of Section 6103 had been stated in the complaint. The District Court correctly dismissed the constitutional claim against the United States and. the individual defend [25] ants. No constitutional claim is stated against the individual defendants because the plaintiff has alleged no property interest cognizable under the Fifth Amendment. Construed in the light most favorable to the plaintiff, its complaint alleges that the pre-filing letter has caused investors to withdraw their money from Mid-South and thereby caused the destruction of its business. It is settled, however, that not every expectation is entitled to the due process protections of the Fifth Amendment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Leis v. Flynt, 439 U.S. 438, 441-443, 99 S.Ct. 698, 700-701, 58 L.Ed.2d 717 (1979). The plaintiff is in effect claiming that its business interests should be protected from IRS communications intended to convey to taxpayer investors information which will prevent them from being penalized for erroneously taking deductions on their income tax returns. A similar situation was before the Supreme Court in Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), where the taxpayer sought an injunction restraining the IRS from withdrawing advance assurance to donors that contributions to the taxpayer’s organization would constitute charitable deductions under the Tax Code. The Court rejected the taxpayer’s argument that prohibition of the desired injunc-tive relief under the Anti-Injunction Act (26 U.S.C. § 7431(a)) would violate its Fifth Amendment rights because withdrawing the assurance of tax deductions would cause a reduction if not elimination of donations and the destruction of its organization. The Court reasoned that: ... although the Congressional restriction to postenforcement review may place an organization claiming tax-exempt status in a precarious financial position, the problems presented do not rise to the level of constitutional infirmities, in light of the powerful governmental interests in protecting the administration of the tax system from premature judicial interference ... and of the opportunities for review that are available. 416 U.S. 725, 747-748, 94 S.Ct. at 2051-2052. Our conclusion is buttressed by the fact that the causal connection between the IRS’s actions and the alleged business injury is attenuated. Here, there was no IRS action directly depriving the plaintiffs of property. Accord Investment Annuity, Inc. v. Blumenthal, 609 F.2d 1, 7 (D.C.Cir. 1979). On the issue of an alleged violation of the non-disclosure provisions in 26 U.S.C. § 6103, we affirm the District Court’s decision that under 26 U.S.C. § 7431(a)(1)2 the only proper defendant to such a suit is the United States, and that no claim is stated against the individual defendants for such a statutory violation. We reverse the District Court’s ruling that as a matter of law, the plaintiff has failed to allege that return information was disclosed within the meaning of section 6103. Such information is defined by Section 6103(b)(2) to include a “taxpayer’s identity” and “whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing.” Construed favorably, Mid-South’s complaint asserts that the pre-filing notice revealed its identity as a taxpayer and the fact that it had been under IRS investigation, since the investors’ names were allegedly obtained through that investigation (a fact then revealed to them upon receiving the pre-filing letter). These allegations state a colorable claim. At oral hearing defendants argued that the pre-filing letter’s legality might be saved under section 6103(e)(7) and perhaps other subsections which create exceptions to the non-disclosure provision, allowing disclosure to certain authorized persons. However, this issue was not presented to [26] the District Court, was not briefed or thoughtfully considered by the parties, and it is not suitable for our resolution at this time. We therefore affirm the District Court’s judgment dismissing both the constitutional and statutory claims against the individual defendants, and the constitutional claim against the United States as a party defendant. We remand to the District Court for reconsideration of the statutory claim against the United States under 26 U.S.C. § 7431(a)(1), and the issue of a possible exception under Section 6103(e)(7) and other similar provisions. Footnotes [1] In relevant part, 26 U.S.C. § 6103 provides: (a) General rule. — Returns and return information shall be confidential, and except as authorized by. this title— (1) no officer or employee of the United States, shall disclose any return or return information obtained by him ... (b) Definitions. — For purposes of this section (2) Return information. — The term "return information” means— (A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other offense____ [2] 26 U.S.C. § 7431(a)(1) provides: "If any officer or employee of the United States knowingly, or by reason of negligence, discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States in a district court of the United States."