Francis Tucker v. United States

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1571
FRANCIS CLIFFORD TUCKER,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp,
Jr., Senior District Judge. (5:08-cv-00105-FPS-JES)
Submitted: October 16, 2012 Decided: December 5, 2012
Before DIAZ and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Paul J. Harris, Wheeling, West Virginia, for Appellant. Kathryn
Keneally, Assistant Attorney General, Jonathan S. Cohen, Karen
G. Gregory, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; William J. Ihlenfeld, II, United States
Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this civil action by federal taxpayer Francis C. Tucker
(Tucker) against the United States of America (the government)
for the alleged wrongful disclosures of his federal income tax
return information to third parties, the district court entered
final judgment in favor of the government. Tucker noted a
timely appeal and challenges the judgment on various grounds.
We affirm.
I.
Pursuant to 26 U.S.C. § 6103(a), federal tax return
information generally must be kept confidential by the
government. “Return information” includes:
a taxpayer’s identity, the nature, source, or amount
of his income, payments, receipts, deductions,
exemptions, credits, assets, liabilities, net worth,
tax liability, tax withheld, deficiencies,
overassessments, or tax payments, whether the
taxpayer’s return was, is being, or will be examined
or subject to other investigation or processing
. . . .
Id. § 6103(b)(2)(A). Pursuant to § 7431(a)(1), a federal
taxpayer is authorized to bring a civil action against the
government “[i]f any officer or employee of the United States
knowingly, or by reason of negligence, inspects or discloses any
return or return information with respect to a taxpayer in
violation of any provision of section 6103 . . . .” Id.
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Tucker’s complaint alleged that two special agents of the
United States Internal Revenue Service (the IRS), who were
assisting in a federal grand jury investigation of his income
tax liabilities for tax years 2002 through 2007, made
unauthorized disclosures of his return information to six
individuals while interviewing them in connection with the
investigation. With one exception, the allegations in Tucker’s
complaint were adjudicated pursuant to a one-day bench trial.
In the district court’s scheduling order filed on August
23, 2010, the district court set November 22, 2010 as the
deadline for the parties to file any motions to amend the
pleadings. Tucker did not move to amend his complaint prior to
this deadline. The pretrial order filed on April 11, 2011
listed Tucker’s theories of liability as follows: (1) Special
Agent Brad Nickerson (Agent Nickerson) disclosed to Tucker’s
former wife Cathy West “that [Tucker] was going to jail, that he
was evading his income tax and they were going to prove it,”
(J.A. 153); (2) Agent Nickerson and Special Agent Ryan Korner
(Agent Korner) disclosed to Tucker’s brother Tommy Tucker “that
[Tucker] was going to jail and they had him for tax evasion,”
(J.A. 154); (3) Agent Nickerson disclosed to Tucker’s friend
Gregory George that “[Tucker] was [being investigated] for tax
evasion” and stated three times that “[Tucker] was going to
jail,” id.; (4) Agent Nickerson disclosed to Tucker’s former
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brother-in-law Thomas West, Jr. “that [Tucker] was being
investigated for tax evasion and [Tucker] was going to go to
jail,” id.; (5) Agent Nickerson disclosed to Tucker’s then wife
Donetta LaRue “that [Tucker] was probably going to go to jail,”
id.; and (6) either Agent Nickerson or Agent Korner told
Tucker’s son Gary Tucker that “he didn’t see any reason why he
should go up the river for something somebody else did,” id.
Prior to trial, the district court granted summary judgment in
favor of the government with respect to the alleged “up the
river” comment on the basis that such comment, even if made, did
not constitute a disclosure of Tucker’s return information.
The case proceeded to a bench trial on the remaining
allegations. As witnesses for the plaintiff, Tucker called
Agents Nickerson and Korner, Tommy Tucker, Cathy West, Thomas
West, Donetta LaRue, and Gregory George. Tucker also took the
stand. As witnesses for the defense, the government called
Agents Nickerson and Korner.
During their respective testimonies, Agents Nickerson and
Korner denied making the disclosures alleged in the complaint,
denied they heard each other make such disclosures, and
explained that the IRS trained them not to make such
disclosures. Additionally, Agent Korner testified that
disclosure to a third-party witness that Tucker was under
investigation for tax evasion would have been unhelpful because,
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“if anything, it would probably cause the third-party witness to
shut down or clam up . . . .” (J.A. 305).
Tommy Tucker testified that during one of three interviews
of him conducted by Agents Nickerson and Korner, one of these
agents (he could not remember which one) told him that his
brother Tucker was going to jail for tax evasion. Cathy West
testified that when Agents Nickerson and Korner interviewed her,
“they more than indicated that . . . they wanted to [put Tucker
in jail] and that they were investigating him for income tax
evasion,” although she could not remember their exact words.
(J.A. 337). The end result of Thomas West’s testimony was that,
as of the date of trial, he could not state whether Agent
Nickerson or Korner informed him during the interview that
Tucker was going to jail. On the witness stand, Donetta LaRue
could not recall the exact words the agents used, but she did
not think they used the word jail. Rather, “[she] recall[ed]
getting the impression from them that [Tucker] was going to
serve some time.” (J.A. 355). Gregory George testified that at
the start of his interview by Agents Nickerson and Korner “[he]
asked them what it was referring to,” and “[the agents] said,
‘We [a]re here to talk about putting Mr. Tucker in jail.’”
(J.A. 367).
Based upon the district court’s review of the evidence and
resolution of factual disputes created thereby, the district
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court concluded that Tucker failed to prove by a preponderance
of the evidence that either Agent Nickerson or Agent Korner made
any statements during the interviews to the third-party
witnesses that Tucker was going to jail, Tucker was being
investigated for income tax evasion, or any similar statements.
Accordingly, the district court found in favor of the government
with respect to Tucker’s allegations tried before the court.
II.
On appeal, Tucker contends the district court erred by
entering judgment in favor of the government with respect to his
allegations of wrongful disclosure of return information under
§ 7431(a)(1), which the district court resolved pursuant to a
bench trial. Tucker’s contention is without merit.
We review a judgment following a bench trial under a mixed
standard of review; findings of fact are reviewed for clear
error and conclusions of law are reviewed de novo. Roanoke
Cement Co. v. Falk Corp., 413 F.3d 431, 433 (4th Cir. 2005).
The law is well established that “[a] finding is ‘clearly
erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.” United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). Moreover,
“when a district court’s factual finding in a bench trial is
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based upon assessments of witness credibility, such finding is
deserving of the highest degree of appellate deference.”
Evergreen Int’l, S.A. v. Norfolk Dredging Co., 531 F.3d 302, 308
(4th Cir. 2008) (internal quotation marks omitted).
Having reviewed the parties’ briefs and the record before
us, we perceive no basis on which to overturn the district
court’s judgment with respect to Tucker’s allegations tried
pursuant to a bench trial. In this regard, we defer to the
district court’s findings of fact——premised in large part on
witness credibility determinations——that Agents Nickerson and
Korner did not disclose return information with respect to
Tucker in violation of § 6103(a) as Tucker alleged.
Accordingly, we affirm the judgment with respect to Tucker’s
allegations of wrongful disclosure of return information under
§ 7431(a)(1), which the district court resolved pursuant to a
bench trial.
III.
Tucker contends the district court erred by granting
summary judgment in favor of the government with respect to his
allegation that Agent Korner told his son Gary Tucker that “he
didn’t see any reason why he should go up the river for
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something somebody else did.” * (J.A. 154). According to Tucker,
the statement constituted return information under
§ 6103(b)(2)(A), and thus is actionable under § 7431(a)(1).
Tucker’s contention is without merit.
We review the grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party.
PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111, 119 (4th
Cir. 2011). Summary judgment is appropriate only if there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Id.We agree with the district court that the alleged “up the
river” comment did not constitute a disclosure of Tucker’s
return information as defined in § 6103(b)(2)(A), and therefore,
is not actionable under § 7431(a)(1). Accordingly, we affirm
the judgment in favor of the government with respect to this
statement.
*
Although there is confusion in the record below as to
whether Tucker alleged Agent Nickerson or Agent Korner made the
“up the river” comment to Gary Tucker, on appeal, Tucker
identifies Agent Korner as such agent. Under the district
court’s reasoning in granting summary judgment, the identity of
the agent is irrelevant.
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IV.
Tucker next contends the district court erred in excluding
evidence from being presented at trial to prove that when Agents
Nickerson and Korner introduced themselves to certain third
party interviewees, sixteen in all, the agents stated that they
were assisting the United States Attorney in a grand jury
investigation of Tucker. Five of these third parties testified
at trial, while the remaining eleven were listed in the pretrial
order as individuals Tucker “may call to testify at trial if the
need arises . . . .” (J.A. 141) (emphasis omitted). According
to Tucker, had such evidence been admitted, he would have been
entitled to amend his complaint to conform to such evidence, and
thus, the district court erred when it denied his motion to this
effect. Tucker’s contentions are without merit.
A district court is afforded wide discretion in determining
the admissibility of evidence at trial, United States v. Abel,
469 U.S. 45, 54 (1984), and “the district court’s evidentiary
determinations should not be overturned except under the most
extraordinary of circumstances,” United States v. Aramony, 88
F.3d 1369, 1377 (4th Cir. 1996) (internal quotation marks
omitted). Therefore, we review a district court’s exclusion of
evidence proffered at trial under the deferential abuse of
discretion standard. Westberry v. Gislaved Gummi AB, 178 F.3d
257, 261 (4th Cir. 1999). Moreover, whether or not a plaintiff
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should be allowed to amend his complaint to conform to the
evidence admitted at trial is a discretionary determination to
be made by the district court, which determination we also
review for abuse of discretion. Quillen v. International
Playtex, Inc., 789 F.2d 1041 (4th Cir. 1986).
As explained in its “Findings of Fact and Conclusions of
Law,” filed March 29, 2012, the district court excluded Tucker’s
proffered evidence regarding the manner in which Agents
Nickerson and Korner introduced themselves on the ground of
untimeliness. In this regard, the district court specifically
explained:
During the bench trial, plaintiff attempted to
submit evidence relating to certain issues, that is
the IRS agents’ introduction of themselves to certain
third-party witnesses which plaintiff asserted was in
violation of 26 U.S.C. § 6103, namely that persons
interviewed were told by the agents by way of
introduction that Francis Tucker was under a grand
jury investigation. The defendant objected to this
testimony as being untimely. This Court decided to
hear this testimony and then decide at a later date
whether it should be considered as evidence in this
civil action. This Court now finds that this evidence
is untimely as those claims were never made in the
complaint and the plaintiff never sought to amend his
complaint to include these allegations. Moreover, the
plaintiff never supplemented any responses to
discovery requests by the defendant to include this
information and these matters were never addressed at
the pretrial conference or in the joint pretrial
order.
Accordingly, this evidence must be deemed
untimely and will not be considered or admitted as
evidence in this case.
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(J.A. 771-72).
As explained in its memorandum opinion and order denying
Tucker’s motion for leave to amend his complaint to conform to
the evidence admitted at trial, the district court denied the
motion on the ground that the government would be unfairly
prejudiced if the motion were granted “since the United States
was effectively precluded from conducting any discovery
regarding these allegations under the existing scheduling order
which provided for discovery prior to trial.” (J.A. 752-53).
In this regard, the district court specifically explained:
As previously noted by the Court in its ruling
not permitting this evidence to be presented at trial,
plaintiff Tucker did not make these allegations
concerning the manner of introduction in the
complaint, did not seek to amend the complaint, did
not set forth these allegations in response to
discovery, and did not include these matters at any
pretrial conference or in the joint pretrial order.
Not only is this information untimely, but the
inclusion of this information at this point in the
case would be unfairly prejudicial to the United
States. As is noted by the United States, there are
exceptions to the rules prohibiting improper return
disclosures and the United States did not have an
opportunity to adequately address those exceptions
even though the United States did present some
evidence at trial to demonstrate that it had met the
requirements of § 6103(k)(6) allowing such
disclosures. The United States submits that had it
been aware of these allegations prior to trial, it
could have conducted additional discovery on this
issue in order to present trial testimony defending
the assertions of plaintiff Tucker, including the
presentation of evidence regarding a good faith
defense under 26 U.S.C. § 7431(b)(1).
(J.A. 751-52).
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We find no abuse of discretion in the district court’s
decision to exclude Tucker’s proffered evidence regarding the
manner in which Agents Nickerson and Korner sought to introduce
themselves to certain third-party witnesses. A fortiori, we
find no abuse of discretion in the district court’s denial of
Tucker’s motion to amend his complaint to conform it to such
evidence.
V.
Having found no error in the proceedings below as contended
by Tucker, we affirm the judgment in favor of the government in
toto. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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