Mary Ann Tavery v. United States

32 F.3d 1423, 74 A.F.T.R.2d (RIA) 5570, 1994 U.S. App. LEXIS 18061, 1994 WL 377288

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 20, 1994
• Docket: 91-1376
• Status: Published

Opinions

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Mary A. Tavery appeals a summary judgment in favor of defendant-appellee the United States. The district court dismissed Ms. Tavery’s complaint alleging unlawful disclosures of tax return information by a government attorney in violation of 26 U.S.C. § 6103. We affirm.

I

In her complaint against the United States, Ms. Tavery alleges that “[o]n or about April 13, 1989, United States Attorney John D. Steffan filed a brief in the case of The United States of America v. Colorado Reform Baptist Church, Inc., Civil Action No. 88-X-259[,] ... in which he violated [26] USC [§] 7431 by disclosing return information regarding plaintiffs Tax Returns without plaintiffs permission.” I R. Doc. 1 at ¶ 4. Rev. William Conklin, the husband of Ms. Tavery, was the records custodian of the church.¹ Ms. Tavery alleges that Mr. Stef-fan made the following statement in his brief:

[T]he Internal Revenue Service refunded $964.67, $2,045.63, and $651.39, all on March 8, 1989, in federal taxes and accruals to the Conklins. In addition, upon information and belief, Mrs. Gonklin/Tav-ery is an engineer earning in excess of $40,000 a year.²

Id. at ¶ 5. Ms. Tavery further avers that the disclosure, quoted above, was “willful”, “knowing[]” or “negligen[t]” and therefore “in violation of 26 U.S.C. [§] 6103(c)-(h).” Id. at ¶ 6.

Shortly after the filing of the instant complaint, Ms. Tavery filed a motion for summary judgment, claiming she was entitled to judgment on the basis of the government’s allegedly unauthorized disclosure. I R. Docs. 5, 6. The government filed a brief opposing summary judgment for Ms. Tavery and supporting a cross-motion for summary judgment by the government. The government argued, inter alia, that Mr. Steffan’s disclosure of tax information was authorized by 26 U.S.C. § 6103(h)(4)(B) or (C), which provide:

A return or return information may be disclosed in a Federal or state judicial or administrative proceeding pertaining to tax administration, but only—

(B) if the treatment of an item reflected on such return is directly related to the resolution of an issue in the proceeding; or

(C) if such return or return information directly relates to a transactional relationship between a person who is a party to the proceeding and the taxpayer which directly affects the resolution of an issue in the proceeding ...

I R. Doc. 9 at 8-11.

In an affidavit submitted in support of the government’s response and cross-motion, Mr. Steffan stated that the information regarding Ms. Tavery’s income was disclosed in Case No. 88-X-259 in the District of Colorado in connection with the right of Ms. Tavery’s husband, Rev. William Conklin, to court-appointed counsel in subsequent potential contempt proceedings. I R. Doc. 8, Steffan Aff. at ¶¶ 5-10.³ The information in question concerning Ms. Tavery was used by the government to support its argument that “Mr. Conklin could not establish his inability to pay his own attorney’s fees, and thus was not entitled to appointed counsel.” Id. at ¶ 10. The affidavit stated that Mr. Steffan never worked on any case in the Department of Justice in which Ms. Tavery was a party and that accordingly he “was not given access by the Internal Revenue Service to any ‘tax return information’ of Ms. Tavery.” Id. at ¶ 3. The affidavit also expressed Mr. Stef-fan’s belief that “the Internal Revenue Service was [not] the source of the information regarding Ms. Tavery’s income, occupation or tax refunds.” Id. at ¶ 12. Accordingly, the government argued that Ms. Tavery’s summary judgment motion should be denied because “[a] genuine issue of material fact remains: where did Mr. Steffan get the information which he used in the brief filed with the Court?” I R. Doc. 9 at 7-8.

In her brief filed in response to the government’s cross-motion, Ms. Tavery argued that Mr. Steffan’s claimed ignorance as to the source of the disclosed tax information proved actionable negligence in the admitted disclosure. I R. Doc. 10 at 1-2.⁴ Ms. Tavery’s response did not directly discuss the government’s assertion that its disclosure was authorized under § 6103(h)(4)(B) and (C). Id. at 1-3. In a declaration previously filed in support of her own motion, however, Ms. Tavery had pertinently stated her position “that [her] income is not related to the resolution of any issue in the case 88-X-259.” I R. Doe. 6, Declaration in Support of Plaintiffs Memorandum of Law.

The district court denied Ms. Tavery’s motion for summary judgment and granted the government’s cross-motion. I R. Doc. 14. The court concluded that Ms. Taver/s income necessarily “had a substantial bearing on Reverend Conklin’s ability to pay an attorney” and that the government’s disclosure therefore “f[e]ll under either [subsection] (C) or (B) [of § 6103(h)(4) ], and accordingly was not inappropriate.” Id. at 2.⁵ The complaint and action were dismissed. Ms. Tavery timely appealed the court’s judgment. I R. Doc. 6.

II

While the ruling of the district judge was based on his conclusion that the govern-merit’s disclosure came within either § 6103(h)(4)(B) or (C), we conclude that the first exception, subsection (B), amply supports the summary judgment for the government. We are convinced that the challenged disclosure was covered by this exemption which applies “if the treatment of an item reflected on such return is directly related to the resolution of an issue in the proceeding.” § 6103(h)(4)(B). Therefore we do not reach the additional issue whether the information “directly relates to a transactional relationship between a person who is a party to the proceeding and the taxpayer which directly affects the resolution of an issue in the proceeding.” § 6103(h)(4)(C).⁶

A

The government argues that in the underlying Case No. 88-X-259 in the District of Colorado, the issue of Rev. Conklin’s qualifying as an indigent for appointment of counsel under the Criminal Justice Act was an “issue in the proceeding” within the meaning of §§ 6103(h)(4)(B) and (C). As Mr. Steffan’s affidavit shows, the district court ordered Rev. Conklin to comply with the court’s previous order and the Internal Revenue Service summons to produce records. I R. Doe. 8, ¶ 8. The order also directed, in part, that

to the extent that Rev. William Conklin seeks appointment of counsel to represent his interests, if any, in subsequent proceedings for Contempt of Court, Rev. Conklin is DIRECTED to appear before a Pretrial Services Officer ... and to provide, under oath, full and complete disclosure of his assets, income and liabilities, on or before April 14, 1989; it is further ORDERED that financial an[d] other information submitted in connection with Rev. Conklin’s application for appointed counsel shall be filed under seal and remain under seal until further order of the court; it is further

ORDERED that the United States shall address the issue of Rev. Conklin’s right to appointed counsel in a brief to be filed on or before April Up, 1989_

I R. Doc. 9, GovtEx. A at 3-4 (emphasis added).

It was in that brief, ordered by the court to be filed, that government counsel made the disclosure concerning Ms. Tavery’s approximate income and the tax refunds to the Conklins. The affidavit of Mr. Steffan concluded that he made the disclosure in good faith, honestly believing that the statement about Ms. Tavery was authorized by § 6103(h)(4)(B). The government thus argues that even assuming the material disclosed was “return information,” which it does not concede, the disclosure was prompted by the district court’s order that the government address Rev. Conklin’s eligibility for court-appointed counsel in a potential civil contempt proceeding. Brief for the Appel-lee at 17-18.

We are persuaded by the government’s argument that in these circumstances the disclosure came within § 6103(h)(4)(B). In the underlying case, Rev. Conklin’s eligibility as an indigent for appointment of counsel was made an “issue in the proceeding” by the district judge’s order for the government brief to address the issue. Because of a possible contempt proceeding in which Rev. Conklin could face loss of liberty, the court wanted to have information to determine Rev. Conklin’s possible eligibility for appointment of counsel, i.e. whether he was finan-daily unable to obtain adequate representation, 18 U.S.C. § 3006A(a). See Walker v. McLain, 768 F.2d 1181, 1183 (10th Cir.1985), cert. denied, 474 U.S. 1061, 106 S.Ct. 805, 88 L.Ed.2d 781 (1986).

The scope of the relevant inquiry on the financial inability issue is broad. See United States v. Barcelon, 833 F.2d 894, 897 & n. 5 (10th Cir.1987) (detailing numerous factors to be considered, including “the availability of income to the defendant from other sources such as a spouse_”). The factors to consider include money sent to the applicant by his mother, Souder v. McGuire, 516 F.2d 820, 821 (3d Cir.1975), and transfers in trust. United States v. Schmitz, 525 F.2d 793, 794 (9th Cir.1975) (opinion of Chambers, Chief Judge). “Financial inability includes an inquiry into whether there is available to the defendant funds for his defense from other sources such as family, friends, trusts, estates, or defense funds.” United States v. Martinez-Torres, 556 F.Supp. 1275, 1279 (S.D.N.Y.1983). Under this broad test, we hold that the district court correctly decided that Ms. Tavery’s income and tax refunds were relevant to the issue of Rev. Conklin’s eligibility for appointment of counsel, and that the government’s disclosure of this information was therefore permissible under § 6103(h)(4)(B). See Lebaron v. United States, 794 F.Supp. 947, 951 (C.D.Cal.1992) (§ 6103(h)(4)(B) permitted disclosure of a party’s tax information “because it directly related to the discovery issue before the Magistrate Judge.”).

B

We briefly address the argument by Special Counsel that “[i]n order to fall within th[e] § 6103(h)(4) exception, the third party’s tax return information must have a ‘direct relationship’ to the resolution of the taxpayer’s tax liability!,]” a relationship that was clearly lacking in the potential contempt proceedings at issue here. Brief of Special Counsel at 7 (emphasis in original). In support, Special Counsel relies on and quotes the following portion of the legislative history of § 6103(h)(4):

The disclosure of a third party return in a tax proceeding (including the United States Tax Court) will be subject to the same item and transaction tests described above, except that such items and transactions must have a direct relationship to the resolution of an issue of the taxpayer’s liability.

Only such part or parts of the third party’s return or return information which reflects the item or transaction will be subject to disclosure both before and in a tax proceeding. Thus, the return of a third-party witness could not be introduced in a tax proceeding for the purposes of discrediting that witness except on the item and transaction grounds stated above.

Brief of Special Counsel at 7 (quoting S.Rep. No. 938, 94th Cong., 2d Sess. 326 (1976), reprinted in 1976 U.S.Code Cong. & Admin.News 3439, 3755) (emphasis in brief).

While the foregoing legislative history may provide some support for Special Counsel’s argument, the plain language of § 6103 itself does not. Instead, with respect to IRS disclosures of return information in judicial or administrative proceedings “pertaining to tax administration”, § 6103(h)(4)(B) provides that such information may be disclosed when the treatment of an item reflected therein “may be related to an issue in the proceeding!.]” (Emphasis added.)⁷ Nowhere does the statute limit disclosure to instances where taxpayer liability is in issue and the disclosed information relates thereto. To the extent tension may exist between the broad but plain language of the statute and its legislative history, we follow Judge Friendly’s application of “ ‘the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute.’” Mangan, 575 F.2d at 40 (rejecting claim that disclosure under § 6103 is limited to cases involving a determination of taxpayer liability, and quoting Greenwood v. United States, 350 U.S. 366, 374, 76 S.Ct. 410, 415, 100 L.Ed. 412 (1956)). See also Bueckert, 775 F.2d at 210-12; Davidson, 559 F.Supp. at 461.

We thus conclude that Ms. Tavery’s return information was properly disclosed pursuant to § 6103(h)(4)(B) because of its demonstrate ed relationship to the underlying tax administration proceeding as indicated by the district judge’s order requiring the government to brief the issue of Rev. Conklin’s eligibility for appointment of counsel. The relevance of the return information to the underlying proceeding brings the government’s disclosure of the information within the parameters of § 6103(h)(4)(B).

Ill

The exceptions in § 6103 are stated in the disjunctive. See United States v. Hashimoto, 878 F.2d 1126, 1129 n. 5 (9th Cir.1989). Since we are convinced that the exception in § 6103(h)(4)(B) applies here, we need go no further.

AFFIRMED.

1 . Action No. 88-X-259 of the District of Colorado was a proceeding commenced by a government “Petition to Enforce Internal Revenue Service Summons.” The summons was issued by an IRS Revenue Agent who was conducting an examination of the Colorado Reform Baptist Church for the purpose of determining its entitlement to federal tax exempt status and its potential liability for federal taxes. The petition to enforce the summons alleged that the Agent had issued the IRS administrative summons of February 2, 1988; it was served that day; it called for an appearance with materials on February 29; and no authorized representative appeared in response to the summons nor were any of the requested records turned over pursuant to the summons. Petition at ¶¶ 5, 7 and 9.

2 . Although married to each other, Ms. Tavery and Mr. Conklin had filed separate returns for the relevant tax year. Appellant's Opening Brief at 5; Brief for the Appellee at 23.

3 . In the underlying tax proceeding, No. 88-X-259, the respondent, Colorado Reform Baptist Church, Inc., had been served with the summons as mentioned above. Rev. Conklin, in his capacity as custodian of records for the church, had refused to comply, asserting that producing the records would violate his constitutional rights. I R. Doc. 8, Steffan Aff. at ¶ 7. As a result, the district court sought to ascertain Rev. Conklin's entitlement to appointed counsel in connection with a potential contempt citation in such proceedings.

4 . The concurring opinion takes the position that the statement in Mr. Steffan's affidavit that he "was not given access by the Internal Revenue Service to any tax 'return information’ of Ms. Tavery” (I R., Doc. 8 at ¶ 3) was alone sufficient to compel summary judgment for the government in light of Ms. Tavery's failure to introduce contrary evidence. We disagree. Mr. Steffan's statement, even if uncontradicted, does not establish that the tax information disclosed by Mr. Steffan was not "return information” within the meaning of § 6103. It is true, as the concurring opinion notes, that in Stokwitz v. United States, 831 F.2d 893, 897 (9th Cir.1987), cert. denied, 485 U.S. 1033, 108 S.Ct. 1592, 99 L.Ed.2d 907 (1988), the Ninth Circuit affirmed judgment for the government under § 6103 on the grounds that "section 6103 applies only to information filed with and disclosed by the IRS, and Stok-witz’ tax returns were not obtained directly or indirectly from the IRS.” Nevertheless, it is clear that a United States officer or employee may violate the statute by disclosing return information, previously released by the IRS, even if the information was not received from the IRS directly. Section 6103(a) ("[N]o officer or employee of the United States, ... shall disclose any return or return information obtained by him in any manner [.]”) (emphasis added); Stokwitz, 831 n. 4 (“Section 6103 applies to all who receive information from the IRS, directly or indirectly.") (emphasis added). Thus, Mr. Stef-fan’s statement in paragraph 3 of his affidavit cannot support summary judgment for the government.

We note a further statement in paragraph 12 of Mr. Steffan's affidavit to the effect that “I do not believe that the Internal Revenue Service was the source of the information regarding Ms. Tavery’s income, occupation or tax refunds.” While this statement does deal with the proscription of § 6103(a) against release of return information by the IRS, it is a mere statement of belief and therefore is insufficient to support summary judgment on the source of disclosure issue. Under Fed.R.Civ.P. 56(e), only statements “made on personal knowledge” will support a motion for summary judgment; statements of mere belief must be disregarded. Automatic Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831, 70 S.Ct. 894, 896, 94 L.Ed. 1312 (1950) (affidavit in support of motion for summary judgment made on information and belief does not comport with Rule 56(e)); see also Jameson v. Jameson, 176 F.2d 58, 60 (D.C.Cir.1949) ("Belief, no matter how sincere, is not equivalent to knowledge.”); Carey v. Beans, 500 F.Supp. 580, 583 (E.D.Pa.1980) (on summary judgment, "statements [in an affidavit] prefaced by the phrases ‘I believe’ or 'upon information and belief' or those made upon an 'understanding' ... are properly subject to a motion to strike.”); 10A Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d § 2738, pp. 486-89 (1983).

5 . We feel it would be unfair to affirm the summary judgment against Ms. Tavery, as the concurring opinion suggests, on the different theory that she did not produce evidence that the IRS was the source of her return information. That argument was not made below. "The United States' Brief in Opposition to Plaintiff's Motion for Summary Judgment, and in Support of Its Cross-Motion for Summary Judgment,” I R. Doc. 9, in Proposition III did argue that Ms. Tavery had not shown that the information in question necessarily flowed through the IRS. Id. at 6. But from this, the government concluded only that Ms. Tavery herself was not entitled to summary judgment. The government's position on this point was that: "A genuine issue of material fact remains: where did Mr. Steffan get the information which he used in the brief filed with the Court?” Id. at 7-8. Then the government brief turned to the grounds on which it said the government was entitled to summary judgment itself. In Proposition IV, the brief argued that "[b]ecause all the elements of section 6103(h)(4)(B) and (C) have been satisfied in this case, the United States is entitled to summary judgment in its favor.” I R. Doc. 9 at 11. Proposition V concluded the brief, arguing that the government's cross-motion for summary judgment should be granted on the good faith exception in § 7431(b). Id. at 11-12. Likewise the government's brief on appeal, while relying on Mr. Steffan's affidavit for other purposes, makes no argument that because Ms. Tavery failed to prove the information came from the IRS, that should be the basis for summary judgment for the government. In fact, the government’s brief on appeal concludes, as below: "Thus, a fact question remains whether the information at issue falls within the statutory definition of 'return information.' ” Brief for the Appellee at 27 n. 8.

We cannot agree to affirm the summary judgment on the basis that Ms. Tavery failed to produce evidence that the IRS was the source of her return information. Ms. Tavery was not alerted by the government below that such evidence had to be shown in order for her to avoid summary judgment. Accordingly, for us to rely on the absence of such evidence would, in effect, amount to entry of summary judgment sua sponte. This can only be done where "the losing party was on notice that she had to come forward with all of her evidence.” Celotex Corp. v. Catrett, 477 U.S. 317, 326, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986) (emphasis added). Accord Buckingham v. United States, 998 F.2d 735, 740 (9th Cir.1993) ("[A] litigant must be given reasonable notice that the sufficiency of his or her claim will be in issue[.]”); Malhotra v. Cotter & Co., 885 F.2d 1305, 1310 (7th Cir.1989) ("When a party moves for summary judgment on ground A, his opponent is not required to respond to ground B — a ground the movant might have presented but did not.”).

6 . Ms. Tavery concentrates the arguments in her pro se appellate briefs on § 6103(h)(4)(C). However, she also makes generalized contentions such as that since "Rev. Conklin was not a party to the proceeding, the exceptions relied on by the lower Court cannot apply....” Brief of Appellant at 7 (emphasis added). As noted, the district judge relied on both exceptions in his ruling.

Ms. Taveiy also says that the "United States Attorney violated the wrongful disclosure statute as alleged in the original complaint,” id. at 7, where she alleged that her "income is not directly related to the resolution of any issue in the proceeding.” Complaint, ¶ 9, I R. Doc. 1 at 2. This position was similar to the one she took below in support of her motion for summary judgment. As noted, she there stated "that filer] income is not related to the resolution of any issue in the case 88-X-259.” I R. Doc. 5. On this record we will not construe Ms. Tavery’s pro se briefs as conceding that the exception in § 6103(h)(4)(B) applies to excuse the government’s disclosures because of her focusing her appellate arguments on the other exception in § 6103(h)(4)(C).

7 . Section 6103(b)(4) defines "tax administration" in part as

(i) the administration, management, conduct, direction, and supervision of the execution and application of the internal revenue laws or related statutes (or equivalent laws and statutes of a State) and tax conventions to which the United States is a party,....

Consistent with the foregoing provision, we have held that "[t]he term ‘tax administration' is to be interpreted broadly.” First Western Government Securities, Inc. v. United States, 796 F.2d 356, 360 (10th Cir.1986) (holding that “tax administration" for purposes of § 6103(h)(4)(C) includes IRS audit). See also Rueckert v. IRS, 775 F.2d 208, 210-12 (7th Cir.1985) ("tax administration" includes investigation of state revenue agents' potential conflicts of interest); United States v. Mangan, 575 F.2d 32, 40 (2d Cir.) ("tax administration” includes criminal prosecution for mail fraud, inter alia, not involving determination of defendant's tax liability), cert. denied, 439 U.S. 931, 99 S.Ct. 320, 58 L.Ed.2d 324 (1978); Davidson v. Brady, 559 F.Supp. 456, 461 (W.D.Mich.1983) (“tax administration” includes criminal sentencing hearing not involving determination of tax liability), aff'd, 732 F.2d 552 (6th Cir.1984); see also Black’s Law Dictionary 1204 (6th ed. 1990) (defining "proceeding” as including "all possible steps in an action from its commencement to the execution of judgment”). But see Mallas v. United States, 993 F.2d 1111, 1121-23 (4th Cir.1993) (criticizing First Western and interpreting "administrative proceeding" to exclude tax investigations and audits for purposes of applying § 6103(h)(4)(C)); McLarty v. United States, 741 F.Supp. 751, 754-55 (D.Minn.1990) (interpreting "tax administration” to ex-elude pro hoc vice hearing involving attorney application to represent defendant in criminal tax case, thus viewing hearing as separate from underlying tax matter for purposes of applying § 6103(h)(2) and (4)), summ. judgment granted, on recons., 784 F.Supp. 1401 (D.Minn.1991).

For purposes of this case, we believe the term "tax proceeding”, as defined in the statute, is broad enough to encompass a potential contempt proceeding against Rev. Conklin in connection with the enforcement proceeding concerning the tax exempt status of Rev. Conklin’s church.