fn. 11 (D.C.D.C., February 28, 1980). 26 U.S.C. § 6103(e)(6) was intended by Congress to be the sole regulator of access to such materials. Zale, supra. Any construction of the interface between FOIA and § 6103(e)(6) other than the one set forth in Zale would produce the unseemly result of rendering Congress' passage of § 6103 a legislative futility.
Further, release of the material in question would "seriously impair tax administration." 26 U.S.C. § 6103(e)(6). Such a determination has a reasonable basis on the record. Disclosure of the material could seriously impair the civil tax examination of plaintiff's tax liability by prematurely revealing the substance of the examination to the subject of the examination. This in turn will impair IRS' ability to present its best case both during the administrative process as well as during litigation that may result from an IRS determination that additional taxes and penalties are due. Affidavit of IRS St. Louis District Director Richard C. Voskuil, P 5; Affidavit of IRS Revenue Agent Rolland R. Hopson, P 6.
II. Alternatively, even if the Internal Revenue Code (26 U.S.C. § 6103) did not control as an independent non-disclosure statute, the material is exempt from disclosure under FOIA (5 U.S.C. § 552(b)(3). Exemption (b)(3) protects from disclosure those documents and records which have been specifically prohibited from release under certain Federal anti-disclosure statutes.
26 U.S.C. § 6103(e)(6) specifically prohibiting the release of tax return information unless the IRS determines its release would not seriously impair tax administration is such a Federal anti-disclosure statute. Admittedly, not all Federal anti-disclosure statutes are "qualifying" statutes under Exemption (b)(3). American Jewish Congress v. Kreps, 187 U.S.App.D.C. 413, 574 F.2d 624 (1978). However, 26 U.S.C. § 6103(e)(6) is such a statute. Clearly, § 6103 refers to "particular types of matters to be withheld" and establishes "particular criteria for withholding." Insofar as § 6103 speaks to disclosability of "return information," the requisite reference to "particular types of information" has been satisfied, and IRS discretion to disclose these matters under (e)(6) is governed by the criterion of impairment of Federal tax administration.
Chamberlain v. Kurtz, 589 F.2d 827 (5th Cir. 1979), cert. denied, 444 U.S. 842, 100 S. Ct. 82, 62 L. Ed. 2d 54 (1979). Accord, Solomon v. Internal Revenue Service, 45 A.F.T.R.2d 80-313 (D.C.D.C., November 7, 1979); Barney v. Internal Revenue Service, Civil Action 78-5100 (S.D., May 16, 1979); Anastas v. Internal Revenue Service, 79-2 U.S.T.C. 9510 (N.D. Cal., May 17, 1979).
Thus, upon consideration of defendant's Motion for Summary Judgment, the opposition and reply thereto, oral argument, and the entire record in this case, it is by this Court this 24th day of July, 1980,
ORDERED, that defendant's Motion for Summary Judgment be, and the same hereby is, granted; and it is further
ORDERED, that this action is dismissed.