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BROWN v. UNITED STATES

October 9, 1990

LINDA BROWN, Plaintiff,
v.
UNITED STATES, Defendant



The opinion of the court was delivered by: JENSEN

 D. LOWELL JENSEN, UNITED STATES DISTRICT JUDGE

 On September 19, 1990, this Court heard plaintiff Linda Brown's motion for summary judgment and the government's cross-motion for partial summary judgment. David M. Kirsch appeared for plaintiff. Thomas F. Carlucci appeared for the defendant. For all the following reasons, the Court DENIES plaintiff's motion for summary judgment and GRANTS defendant's cross-motion for summary judgment.

 I. BACKGROUND FACTS

 This is an action for civil damages for wrongful disclosure of federal tax return information pursuant to 26 U.S.C. § 7431. Plaintiff brings the present motion for summary judgment with regard to a July 21, 1989 "Notice of Levy on Wages, Salary, and Other Income" issued to the plaintiff's employer, Valley Pet Supply, Inc., by the Internal Revenue Service. That Notice referenced plaintiff and her husband, despite the fact that they had separated and divorced by that time, and included plaintiff's social security number.

 The Notice of Levy erroneously contained a deficiency of $ 23.52 for taxable year 1986 assessed against plaintiff's former spouse alone. However, the Notice also included deficiencies for taxable years 1983 and 1984 ($ 10,990.20 and $ 7,053.87 respectively) which were correctly assessed against the plaintiff. Apart from the erroneous inclusion, the Notice had been properly assessed and issued pursuant to IRS procedures.

 Plaintiff contends that the erroneous inclusion on the notice of a deficiency against another constitutes a wrongful disclosure of return information, thus entitling her to recover under 26 U.S.C. § 7431. *fn1" The government in response and cross-motion for summary judgment contends that the erroneous inclusion of another's tax liability on an otherwise proper levy does not provide a basis for plaintiff's recovery. *fn2"

 II. STANDARD FOR SUMMARY JUDGMENT

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In the present case, both parties agree as to the material facts with respect to the Notice of Levy issued July 21, 1989: an otherwise properly issued Notice mistakenly included a deficiency which was not attributable to plaintiff. Thus summary judgment is appropriate at this time.

 III. DISCUSSION

 A. Wrongful disclosure of "plaintiff's" tax return information.

 Internal Revenue Code Section 7431(a) establishes a cause of action with a remedy of damages if an officer or employee of the United States knowingly or negligently makes an unauthorized disclosure of a taxpayer's return or tax return information. 26 U.S.C. § 7431(a)(1). Such disclosure is "unauthorized" if it violates 26 U.S.C. § 6103, which outlines the collection procedures of the IRS.

 The government presents an appealing argument that the clear congressional intent underlying section 7431 is that only the taxpayer whose return information has been disclosed has a cause of action. The most apparent support for this proposition is the language of the statute itself and a 1986 case from the District Court of Kansas, Haywood v. United States, 642 F. Supp. 188 (D. Kan. 1986). This Court is not bound by this precedent; however, this Court finds the Haywood case persuasive as it provides sound reasoning pertinent to the present case.

 In Haywood, the IRS mistakenly attributed to plaintiff a tax deficiency assessed against the estate of plaintiff's husband. A Notice of Levy was subsequently served on plaintiff's employer. The Notice was addressed to "Jon M. Dec'd & Beverly ...


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