There have been several lawsuits filed against the IRS for unlawful disclosure of taxpayer information.
These include a suit filed by President Biden’s son, a lawsuit filed by the IRS against IRS contractor Charles Edward Littlejohn for leaking taxpayer information to news outlets–which apparently included former President Trump’s tax returns and returns for many other welathy citizens. There is also the suit by hedge fund manager Ken Griffin who recently filed suit against the IRS for unlawful disclosure. These are just three of the more prominent cases among scores of other cases pending. There are numerous other pending suits for similar disclosures.
And this does not include the numerous data breaches by the IRS recently. This includes the IRS’s release of taxpayer information for 120,000 taxpayers on its website last year. And then, separately, there are the missing records that the Treasury Inspector General for Tax Administration noted that the IRS has misplaced. They consisted of thousands of microfilm cartridges containing millions of sensitive individual and business tax account records, which the IRS apparently lost and cannot even account for.
This is not just concerning given the sensitive nature of the information. The fact that much of this information is not in the IRS’s possession with the taxpayer’s consent. Some of the information was provided under compulsion–such as information provided to the IRS during audit to comply with our tax laws and avoid criminal and civil sanctions.
These breaches are the type of abuses that triggered the Congressional hearings that led up to the Revenue Restructuring Act of 1998 (“RRA 98”). Recall that IRS employees had even gone on public radio shows to discuss confidential taxpayer information, and posted confidental taxpayer information in public malls. RRA 98 was intended to address these issues. Even after RRA 98, apparently nothing has changed.
This brings us to the Crow v. United States, 1:23-cv-00046-AKB (D. Idaho Sep. 28, 2023) case. This case involves yet another lawsuit accusing the IRS of unlawfully disclosing confidential taxpayer information. The IRS’s arguments in the case shows that the agency simply doesn’t care about protecting taxpayer information.
Facts & Procedural History
The lawsuit was filed by Crow and an entity that goes by SCCC, alleging the IRS violated Section 6103 by revealing private tax return information about them in an unrelated tax court case.
Specifically, Crow and SCCC claim the IRS improperly disclosed things like SCCC’s employer ID number, Crow’s identity as the subject of an IRS “promoter investigation,” the fact that Crow works remotely from home, and that SCCC operates out of Crow’s personal residence.
The disclosures occurred when the IRS filed a motion in another taxpayer’s case to provide background details about Crow and SCCC’s involvement in certain installment sale transactions.
The parties filed suit against the IRS for unlawful disclosure. The IRS did not dispute that it disclosed this information, but rather, argued that the information was already in the public domain. On this basis, the IRS asked the court to dismiss the lawsuit.
IRS Disclosure of Taxpayer Information
Section 6103 restricts IRS employees from disclosing any taxpayer’s return information.
The default under section 6103 is that tax returns and return information are confidential. IRS employees and contractors cannot disclose returns or return data they obtain, except when the law specifically authorizes it.
What is protected under Section 6103’s blanket of confidentiality? First, any tax return filed by or on behalf of a taxpayer is covered. This includes all the schedules, attachments, and other items submitted as part of the return.
Second, there is what is known as “return information.” This is broadly defined and encompasses data the IRS receives regarding a person’s potential or actual tax liability. It includes things like a taxpayer’s income, payment history, examination status, and other details related to enforcement and collection of tax.
Collecting Damages From the IRS
Section 6013 also ties in to Section 7431. Section 7431 provides taxpayers with the ability to sue the IRS and recover damages for IRS breaches.
Section 7431 provides for an award of damages if the IRS makes an unauthorized disclosure. The damages are the greater of $1,000 per unauthorized disclosure or actual damages plus punitive damages. It also includes an award of costs, such as attorneys fees.
For a taxpayer to prevail under Section 7431(a)(1), he must demonstrate that an unauthorized inspection or disclosure of his returns or return information was made by an officer or employee of the United States, the inspection or disclosure was made knowingly or negligently, and that the inspection or disclosure was made in violation of Section 6103.
Permissible Disclosures by the IRS
Before one can get damages, the exceptions that allow disclosure have to be considered. There are a wide variety of exceptions that permit the IRS to disclose taxpayer information in some circumstances.
For example, the IRS can share returns or return information with state tax agencies, to the extent needed for enforcement of state tax laws. IRS can also make disclosures to the taxpayer’s authorized representative or to others who may have a material interest in the return, such as business partners. Further, disclosures are allowed to Congressional committees in certain situations. And the President and select executive branch officials can obtain returns and return data for tax analysis purposes.
The numerous exceptions reflect Section 6103’s goal to balance taxpayers’ desire for privacy against the government’s need to administer the tax system. By crafting rules for both confidentiality and disclosure, Section 6103 aims to strike the right equilibrium between these competing interests. But where is the line exactly?
Information in the Public Domain
In this case, the IRS’s argument was that the information was in the public domain. And this is true, as noted by the court. Some of the information was in fact in the public record.
The court notes that in its prior court filing to quash an IRS summons, the plaintiff put some of the information into the public domain. It did so by including the information in its court filings. The court in the present case says that the IRS can, essentially, repeat this information, as public information is not protected by Section 6103. The lesson there is that the taxpayer should ask that the record be sealed for each court filing, perhaps.
But this case does not stop there. The judge found at least some of the details about Crow and SCCC did not meet this public disclosure exception–which, given the IRS’s admissions in the case, means that the IRS’s disclosures were improper. The information that should not have been disclosed included, for example, SCCC’s EIN, that Crow works remotely from his personal residence, and that SCCC is located at that residence. The court concluded that this information is not in the public domain and protected by Section 6103. The court did not grant the IRS’s motion to dismiss the case, but it has not yet ruled on whether the taxpayer is entitled to damages.
Unless the IRS appeals this court decision, the case will proceed to discovery and potentially a trial. If the plaintiffs prove their case, they can recover civil damages from the IRS for the unlawful disclosures. The ruling and the others that have made the news in the past few years serve as reminders that taxpayers to be very careful about providing records to the IRS.
Unfortuantely, given that the agency does not take basic steps to protect taxpayer information, one may need to actually consider forcing the IRS to issue a summons for every records request before just volutnarily provding information to the IRS.
In some cases, taxpayers may have to balance the potential harm and damage in disclosing information to the IRS versus losing tax deductions, credits, etc. and incurring tax penalties. It may be better to lose the tax deductions, tax credits, etc. and incur penalties and pay more in tax than have confidential information in the public.