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COOPER v. IRS

October 26, 1977

George Cooper, Plaintiff
v.
Internal Revenue Service, Defendant



The opinion of the court was delivered by: FLANNERY

 FLANNERY, District Judge:

 This matter comes before the court on cross-motions for summary judgment. The facts in this case are not in dispute, the parties having stipulated to them. Plaintiff, a professor at Columbia University School of Law, seeks access, pursuant to the Freedom of Information Act, as amended, 5 U.S.C. § 552 (1970), to various documents introduced by the Internal Revenue Service as exhibits in two cases before the United States Tax Court: Estate of J. W. Kelley, T.C. Docket Nos. 3236-73, 3237-73, 63 T.C. 321 (1974); and Estate of Edward E. Dickinson, Jr., T. C. Docket No. 3075-73, 63 T.C. 771 (1975). The Internal Revenue Service contends that these documents *fn1" are exempted from disclosure by 5 U.S.C. § 552(b)(3) which exempts from disclosure any documents "specifically exempted from disclosure by statute." I.R.S. states that such a specific exemption is contained in 26 U.S.C. § 6103 (1970), as amended by the Tax Reform Act of 1976, Pub. L. 94-455, § 1202(a)(1), 90 Stat. 1667, which limits the disclosure of returns and return information *fn2" in an effort to maintain their confidentiality. However, because these records were released to the Tax Court and were open to public inspection before being returned to the IRS, it is the opinion of this court that these documents, once having been disclosed in this way, cannot regain their confidential nature. As indicated more fully below, the IRS must release the requested documents to the plaintiff.

 I. Background

 26 U.S.C. § 6103(a) states in pertinent part:

 
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 in any manner in connection with his service as such an officer or employee or otherwise or under the provisions of this section.

 The IRS released the documents in question to the Tax Court as evidentiary exhibits pursuant to 26 U.S.C. § 6103(h)(4), allowing the disclosure of returns and return information for tax-related judicial proceedings.

 Once released to the Tax Court, however, the documents were no longer subject to the confidentiality requirements of section 6103. *fn3" Rather, the status of the documents was subject to 26 U.S.C. § 7461 (1970), which states in pertinent part:

 
All reports of the Tax Court and all evidence received by the Tax Court... shall be public records open to inspection of the public; except that after the decision of the Tax Court in any proceeding has become final the Tax Court may, upon motion of the taxpayer or the Secretary or his delegate, permit the withdrawal by the party entitled thereto of originals of books, documents, and records, and of models, diagrams, and other exhibits, introduced in evidence before the Tax Court or any division; or the Tax Court may, on its own motion, make such other disposition thereof as it deems advisable.

 This section makes clear the fact that as long as the Tax Court has custody of returns and return information, such documents are part of the public record. Indeed, the documents in question here were available for public inspection in the Tax Court Reading Room for twenty months in one case and thirteen months in the other. Had plaintiff sought access to these documents while they were in the possession of the Tax Court, there is no doubt that these documents would have been made freely available to him.

 That, however, is not the case at hand. When the decrees in each of the Tax Court cases became final, the Tax Court, pursuant to its authority under 26 U.S.C. § 7461, returned the documents in question to the IRS. There is no evidence to suggest that the Tax Court did this for any reason other than general, routine housekeeping. In other words, the return of these documents was a routine matter designed to prevent the Tax Court from being buried with exhibits from closed cases. See United States v. Mitchell, 179 U.S. App. D.C. 293, 551 F.2d 1252, 1259 (1976), cert. granted 430 U.S. 944, 97 S. Ct. 1578, 51 L. Ed. 2d 791 (1977). The question presented by this is whether such a return of these items to the IRS is sufficient to reinstate the confidential nature of the documents in issue. Section 6103 is silent on this point. The court must, therefore, look to two other factors in determining the outcome of this issue. First, the court must consider the way in which the law treats other confidential documents or communications which have been made public. Second, the court must analyze the policies embodied in the Freedom of Information Act regarding disclosure of such documents.

 II. Publication of Confidential Documents4

 Under the terms of 26 U.S.C. § 6103, if the IRS had not released the documents in question to the Tax Court, there is no doubt that they would be unavailable to the plaintiff now. The confidentiality of the documents would have remained intact. When the documents were ...


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