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MOODY v. IRS

October 13, 1981

Shearn MOODY, Jr., Plaintiff,
v.
INTERNAL REVENUE SERVICE, Defendant



The opinion of the court was delivered by: PRATT

MEMORANDUM OPINION

On February 28, 1980, in a memorandum opinion, we granted defendant's motion for summary judgment, except as to four (4) documents or parts of documents set forth in an order of the same date. On June 8, 1981, the United States Court of Appeals for the District of Columbia Circuit in Shearn Moody, Jr. v. Internal Revenue Service, 210 U.S. App. D.C. 80, 654 F.2d 795 (D.C.Cir.1981) remanded for additional consideration of two issues.

 1. The segregability of "Tax Return Information" otherwise exempt from disclosure under FOIA pursuant to § 6103 of the Internal Revenue Code, 26 U.S.C. § 6103

 In this connection, the court pointed out that the Haskell Amendment of 1976, in amending § 6103, excluded from the definition of "return information" any "data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer," 26 U.S.C. § 6103(b)(2). The court made specific reference to Document 73 and directed that we determine what information, other than name or address or other identifying material "can be meaningfully segregated from otherwise disclosed information contained in Document 73." (at 798).

 2. Document 19 and the Work Product Exemption

 Specifically, we are directed to determine (a) whether a government attorney violated professional standards applicable to members of the bar, and (b) if so, whether the unprofessional behavior vitiates the attorney work product privilege incorporated in Exemption 5 of FOIA, 5 U.S.C. § 502(b)(5) (at 801).

 Proceedings in Remand *fn1"

 Defendant has submitted a number of documents for an additional in camera inspection. Besides Document 73, these include thirty (30) other documents withheld in part solely on the basis of § 6103. *fn2" Defendant has also submitted Document 19 and three (3) other Documents on the issue of the work product privilege. *fn3" This entire submission aggregates 366 pages. *fn4"

 A. Document 73

 Upon further examination of this 17 page document, which is labelled "Final Report and Results of the Southwest Project," we find again that the portions deleted were properly withheld under Exemption 3, which incorporates § 6103, as well as under Exemptions 5 and 7(c). The Neufeld *fn5" case, cited by the Court of Appeals, does not require further disclosure by defendant.

 The thirty (30) additional documents which contain information for which § 6103 was the only ground for withholding, have been also inspected in detail. As stated in the Broder affidavit, attached as Exhibit A to defendant's pending motion for summary judgment, these deletions solely on the basis of § 6103, fell into three groups: (a) deletions only of a taxpayer's identity; (b) deletions of a taxpayer's identity along with descriptive material, which, if released, would create a risk of identifying the taxpayer; and/or (c) deletions of a taxpayer's identity and other information of a trivial nature, which is meaningless when the taxpayer's name is deleted. After this review, we are satisfied that all the deleted information was properly withheld on the basis of § 6103 and that no other information can be meaningfully segregated for disclosure. It should be pointed out that the great bulk of the information in these documents has been previously determined to have been properly withheld pursuant to Exemption 7(c).

 B. Document 19

 This Document as well as Documents 004-625, 21 and 18, were also submitted for an in camera inspection. They all relate to the propriety of two ex parte contacts of Robert L. Liken, Esquire, Assistant Regional Counsel, Internal Revenue Service, with Judge James Noel, United States District Judge for the Southern District of Texas. A brief description of the factual background is appropriate.

 The SEC had brought suit against W. L. Moody & Company in Judge Noel's court. The Trustee in receivership of the defendant company was one E. O. Buck. Charles Sapp, Esquire, was attorney for the receiver Buck. On October 31, 1972, the IRS served an administrative ...


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