Counterclaim in Easement Scheme Case Should Be Dismissed, DOJ Says

UNITED STATES OF AMERICA,
Plaintiff,
v.
NANCY ZAK, CLAUD CLARK III,
ECOVEST CAPITAL, INC.,
ALAN N. SOLON,
ROBERT M. MCCULLOUGH, andRALPH R. TEAL JR.,
Defendants.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

UNITED STATES' MOTION TO DISMISS COUNTERCLAIM

Pursuant to Fed. R. Civ. P. 12(b)(6), the United States of America respectfully moves to dismiss Claud Clark, III's counterclaim for failure to state a claim upon which relief can be granted. In support of this motion, the United States submits the attached memorandum of law and exhibits attached thereto. Dated February 24, 2020.

Respectfully submitted,

RICHARD E. ZUCKERMAN
Principal Deputy Assistant Attorney General

THOMAS K. VANASKIE
D.C. Bar No. 1000405
BEATRIZ T. SAIZ
N.J. Bar No. 024761995
Trial Attorneys, Tax Division
U.S. Department of Justice
P.O. Box 14198
Washington, D.C. 20044
202-305-7921 (v)
202-514-4963 (f)
Thomas.K.Vanaskie@usdoj.gov

Of Counsel:

Byung J. Pak
United States Attorney

Neeli Ben-David
Assistant United States Attorney
Georgia Bar No. 049788
Office of the U.S. Attorney
75 Ted Turner Drive, SW, Suite 600
Atlanta, GA 30303
404-581-6303 (v)
Neeli.Ben-David@usdoj.gov

Counsel for Counterclaim Defendant United States of America

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UNITED STATES' MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS COUNTERCLAIM

The United States of America respectfully submits this memorandum of law in support of its motion to dismiss Claud Clark, III's counterclaim for failure to state a claim. On December 24, 2019, Clark filed a counterclaim seeking damages against the United States under 26 U.S.C. § 7431 for alleged wrongful disclosures of his return information. (ECF No. 123 at 115-27.) Clark alleges that IRS and Department of Justice officials wrongfully disclosed his return information in nine statements (collectively the “statements at issue”): the Department's press release announcing this suit to enjoin the defendants from promoting a syndicated conservation easement scheme; two IRS press releases that notify the public of its efforts to combat abusive syndicated conservation easement transactions, generally, and this suit specifically; and six statements by IRS and Department officials regarding the Government's ongoing enforcement efforts regarding conservation easements. (Id. at 118-23 ¶¶ 11.a-11.i.) Clark's allegations do not state a plausible claim for damages under § 7431.

I. INTRODUCTION

To state a claim for improper disclosure under § 7431, Clark must plausibly allege that the statements at issue disclosed his return information in violation of 26 U.S.C. § 6103. He has not — and cannot — do so. The Department's Press Release (Statement 1) simply parrots allegations taken directly from the publicly filed complaint in this action. Publicizing those allegations does not violate § 6103. The remaining statements at issue (Statements 2 through 9) do not even implicate § 6103. To be sure, they do not contain Clark's (or anyone else's) return information. They are general statements that inform the public of the Government's efforts to enforce the Internal Revenue Code and combat abusive syndicated conservation easement transactions. Accordingly, Clark's counterclaim should be dismissed with prejudice.

II. BACKGROUND

The United States filed this action on December 18, 2018, to enjoin Clark and the other defendants from, inter alia, organizing, promoting or selling their “conservation easement syndication scheme.” (ECF No. 1 ¶ 6.a.) On December 24, 2019, Clark answered the complaint and filed a counterclaim alleging that the Government made unauthorized disclosures of his return information in the following statements:¹

• Statement 1: Department of Justice Press Release 18-1672 (Dec. 19, 2018);

• Statement 2: A statement by Principal Deputy Assistant Attorney General Richard E. Zuckerman quoted in the Department's press release;

• Statement 3: IRS News Release IR-2019-47 (March 19, 2019);

• Statement 4: IRS News Release IR-2019-182 (Nov. 12, 2019);

• Statement 5: A statement by Charles P. Rettig, Commissioner of the IRS, quoted in IR 2019-182 (“Statement 5”);

• Statement 6: A statement made by an unknown IRS official to Richard Rubin of the Wall Street Journal;

• Statement 7: A statement by Commissioner Rettig at the American Institute of CPAs (“AICIPA”) National Tax Conference;

• Statement 8: A statement by Douglas O'Donnell, Commissioner of the IRS Large Business and International Division, at AICPA National Tax Conference; and

• Statement 9: A statement by Sunita Lough, Deputy Commissioner of IRS Services and Enforcement, at the AICPA National Tax Conference. (See ECF No. 123 at 118-23 ¶¶ 11.a.-11.i.)

Clark also alleges “[o]n information and belief” that the Government has “made other statements constituting impermissible disclosure of [his] return information.” (Id. at 123 ¶ 12.)

Based on those allegations, Clark seeks actual and punitive damages, an injunction prohibiting the Government from making additional statements regarding its efforts to combat abusive syndicated conservation easements, and an award of attorney's fees. (Id. at 127.) Because none of the statements at issue violate § 6103, the Court should deny the relief Clark seeks and dismiss his counterclaim with prejudice.

III. STANDARD OF REVIEW

Clark's counterclaim should be dismissed for failure to a state claim under Fed. R. Civ. P. 12(b)(6). Under this rule, courts have the power “to eliminate actions that are fatally flawed in their legal premises and destined to fail, and thus to spare litigants the burdens of unnecessary pretrial and trial activity.” Advanced Cardiovascular Sys., Inc. v. Scimed Life Sys., Inc., 988 F.2d 1157, 1160 (Fed. Cir. 1993). To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Brignac v. United States, 239 F. Supp. 3d 1367, 1373 (N.D. Ga. 2017) (Totenberg, J.). In that regard, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are insufficient to defeat a motion for failure to state a claim. Iqbal, 556 U.S. at 678. And legal conclusions masquerading as facts need not be accepted as true. See id. (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).

IV. ARGUMENT

Clark's counterclaim fails on its face. He has not plausibly alleged that the Government disclosed his “return information” in violation of § 6103. See 26 U.S.C. § 7431(a), (c). Indeed, eight of the nine statements at issue are of such general nature that they do not implicate § 6103's protections. The only statement that identifies Clark is the Department's Press Release. That statement does not violate § 6103 because all references to Clark in the Press Release are attributable to the publicly filed complaint in this action. Accordingly, Clark's counterclaim is “fatally flawed in [its] legal premises” and must be dismissed. Advanced Cardiovascular Sys., 988 F.2d at 1160.

A. Overview of § 6103

Section 6103 of the Internal Revenue Code sets forth the general rule “that 'returns' or 'return information' as defined therein shall be confidential.” Church of Scientology v. I.R.S., 484 U.S. 9, 10 (1987).

Section 6103 defines “return information” as:

[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, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense.

26 U.S.C. § 6103(b)(2)(a). That definition, however, does not include “data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer.” Id.; Church of Scientology, 484 U.S. at 10.

In his counterclaim, Clark concedes that the statements at issue do not fit within the first half of the definition of return information, which provides confidentiality to the taxpayer's identity and other information related to the taxpayer's return. He alleges only that the statements at issue impermissibly disclosed “data, received by, recorded by, prepared by, furnish to, or collected by the Secretary. . . . with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of [Mr. Clark] under [the Code] for any tax, penalty, interest, fine, forfeiture, or other imposition or offense.” (ECF No. 123 at 118 ¶ 10 (quoting 26 U.S.C. § 6103(b)(2)(a)).)

Clark is wrong, and he ignores the statutory text excluding from the definition of “return information,” data in a form that cannot be identified with a specific taxpayer. Contrary to Clark's formulation, the general statements regarding the Government's efforts to enforce the Internal Revenue Code, and the potential consequences for engaging in schemes deemed abusive, do not implicate § 6103. They were not gleaned from the IRS's files on Clark (or the other defendants), and do not identify, directly or indirectly, any specific party to this litigation (or any specific taxpayer). The press releases pertaining to this suit merely parrot allegations in the public record. Restating information from a publicly filed complaint does not violate § 6103. We address each statement in turn.

B. The Department's Press Release (Statement 1) Does Not Disclose Clark's Return Information in Violation of § 6103

The Department's Press Release, is the work product of the Department of Justice and its employees. The Press Release serves two functions: it advises the public of the filing of this suit, specifically; and it informs the public of the Department's efforts to enforce the Internal Revenue Code, generally. In doing so, the Press Release does not improperly disclose Clark's return information.

The Eleventh Circuit has yet to address whether the Government's disclosure of “return information” in a press release relating to public judicial proceedings constitutes an unauthorized disclosure under § 6103. But several circuits have addressed this issue, and the majority of those circuits have held that such disclosures may not violate § 6103, albeit under separate theories.²

For example, the Ninth and Sixth Circuits hold that once “return information” has lawfully entered the public domain, it is no longer protected by § 6103. See Lampert v. United States, 854 F.2d 335, 338 (9th Cir. 1988); see also Rowley v. United States, 76 F.3d 796 (6th Cir. 1996) (applying Lampert to hold that “Section 6103's general rule of confidentiality has no application to situations where tax return information is placed in the public domain by the filing of tax lien notices, and is subsequently republished by the Internal Revenue Service for the purpose of carrying out its administrative functions”). Simply put, “once information is lawfully disclosed in court proceedings, § 6103(a)'s directive to keep return information confidential is moot.” Lampert, 854 F.2d at 338 (citation and quotation omitted).

The Fifth, Seventh, and Tenth Circuits take a somewhat different approach. In those circuits, the inquiry turns on the immediate source of the information that was allegedly wrongfully disclosed. See Johnson v. Sawyer, 120 F.3d 1307, 1318-19 (5th Cir. 1997); Thomas v. United States, 890 F.2d 18, 20-21 (7th Cir. 1989); Rice v. United States, 166 F.3d 1088, 1091 (10th Cir. 1999). Where, as here, the immediate source of the information is in the public domain, those circuits hold that the disclosure does not violate § 6103. See Rice, 166 F.3d at 1092 (holding that an IRS press release publicizing public court proceedings and documents that may reveal “return information” did not violate § 6103); Thomas, 890 F.2d at 21 (holding that the IRS can publicize a publicly filed Tax Court opinion without making a wrongful disclosure of return information in that opinion). That is not the case, however, if the source of the disclosed information was the IRS's files. See Johnson, 120 F.3d at 1325-26 (holding that an IRS press release announcing the taxpayer's guilty plea disclosed return information because the immediate source of that information was the IRS's file, not the public judicial proceeding).

Here, the Court does not have to decide which approach to adopt because under either approach, the Department's Press Release does not disclose any return information in violation of § 6103. The complaint in this action was filed on December 18, 2018, and any disclosure of Clark's return information in the complaint to this Court was authorized by 26 U.S.C § 6103(h)(4)(A).³ The following day, the Department issued the Press Release. Under Lampert, this statement is not an unauthorized disclosure of return information. The Press Release contained information that was already a matter of public record, and any return information within it had lost its confidential treatment under § 6103. See 854 F.2d at 338.

Similarly, under Sawyer, Rice, and Thomas, the Department's Press Release is not an unauthorized disclosure because the immediate source of that statement was the complaint, and not the IRS's files.⁴ As the Seventh Circuit explained, “the government should be allowed to tell its side of the . . . story; but however that may be, we believe that the definition of return information comes into play only when the immediate source of the information is a return, or some internal document based on a return.” Thomas, 890 F.2d at 21 (emphasis added).

Clark's allegations “[o]n information and belief” that the Department's Press Release was not based on information publicly available or in the complaint are nothing more than “[t]hreadbare recitals of the elements” necessary to state a claim under § 7431. Iqbal, 556 U.S. at 678. As such, these allegations are insufficient to save his counterclaim from dismissal. To be sure, Clark had ample time to compare the contents of the complaint with the press release to allege on more than “information and belief” that the Department's Press Release disclosed information from outside the complaint and the public record. But he has not done so — and cannot do so. A comparison of the Department's Press Release to the complaint demonstrates that the Department simply repeated information that was already in the public domain. See Ex. 1 (employing phrases such as “according to the complaint,” “allegedly,” and “alleges” to attribute the source of the statements in the Press Release). Accordingly, Clark's claim that the Department's Press Release improperly discloses his return information fails.

C. The Zuckerman Statement (Statement 2) Does Not Implicate § 6103

The Court need look no further than the definition of “return information” in § 6103 to conclude that the Zuckerman Statement, which is quoted in the Department's Press Release, does not disclose Clark's return information. Under § 6103, “return information” is information “received by, recorded by, prepared by, furnished to, or collected by” the IRS. See 26 U.S.C. § 6103(b)(2)(A); see also Stokwitz v. United States, 831 F.2d 893, 897 (9th Cir. 1987) (holding that § 6103 “applies only to information filed with and disclosed by the IRS”).

The Zuckerman Statement does not disclose information received or prepared by the IRS. It is a statement prepared by the Department of Justice to advise the public of its efforts with the IRS “to shut down fraudulent conservation easement shelters, which in this case were based on willfully false valuations.” Ex. 1. Consequently, it is the work product of the Department, not return information. Cf. Ryan v. United States, 74 F.3d 1161, 1163 (11th Cir. 1996) (explaining that memoranda prepared by Department of Justice attorneys, which are attorney work product, are not “return information” because “information collected by the United States Attorney's Office, even with the assistance of an IRS Special Agent, is not information belonging to the Secretary of the Treasury”).

Even if this statement's inclusion of the phrase “which in this case were based on willfully false valuations” somehow refers to Clark's return information, the Zuckerman Statement does not violate § 6103. The statement is directly attributable to the allegations of the publicly filed complaint. (See, e.g., ECF No. 1 ¶ 116 (“Defendant Clark knew or had reason to know how the syndicates were structured and being marketed and sold and that his statements of value and the statements of value he caused others to make were false.”).) As a result, the Zuckerman Statement does not violate § 6103 under either approach discussed above regarding the Department's Press Release. See Lampert, 854 F.2d at 338 (“[O]nce information is lawfully disclosed in court proceedings, “§ 6103's directive to keep return information confidential is moot.”) (citation and quotation omitted); Thomas, 890 F.2d at 21 (stating that “the definition of return information comes into play only when the immediate source of the information is a return, or some internal document based on a return”).

D. The IRS Press Releases Do Not Disclose Any Return Information

The IRS Press Releases (Statements 3 and 4 of the counterclaim) do not disclose any “return information” as defined in § 6103. Like the Department's Press Release, the IRS Press Releases announce the Government's enforcement priorities with respect to the tax law. See Exs. 2-3. These general statements do not implicate § 6103's protections because they do not disclose any information that identifies, either directly or indirectly, Clark or any other taxpayers. They simply put the public on notice “to steer clear of abusive tax avoidance schemes and the unscrupulous individuals who promote them.” Ex. 2.

In Statement 3, the IRS explained that promoters of syndicated conservation easement schemes “obtain an inflated appraisal of the conservation easement based on unreasonable factual assumptions and conclusions about the development potential of the real property.” Ex. 2. This general description of the scheme does not disclose Clark's return information. On the contrary, it parrots the description of the scheme in IRS Notice 2017-10, which identified syndicated conservation easements as listed transactions. See IRS Notice 2017-10, 2016 WL 7422633 (Dec. 23, 2016) (“The promoters obtain an appraisal that purports to be a qualified appraisal as defined in § 170(f)(11)(E)(i) but that greatly inflates the value of the conservation easement based on unreasonable conclusions about the development potential of the real property.”). The IRS certainly has the authority to describe abusive tax transactions in general terms to put the public on notice that such transactions should be avoided.

In addition, Statement 3's references to this lawsuit and the Department's Press Release do not improperly disclose Clark's return information. The complaint and Department's Press Release are not “return information” because they are the work product of the Department, not data received or prepared by the IRS. See Ryan, 74 F.3d at 1163; 26 U.S.C. § 6103(b)(2)(A). And even if those documents contain return information, the IRS may inform the public of the filing of the complaint and the Department's Press Release because they are in the public record See Lampert, 854 F.2d at 338. Indeed, the IRS may publicize documents that are “lawfully prepared by an agency that is separate from the Internal Revenue Service and has lawful access to tax returns.” Thomas, 890 F.2d at 21.

Statement 4 provides that “audits and investigations [related to syndicated conservation easements] cover billions of dollars of potentially inflated deductions as well as hundreds of partnerships and thousands of investors.” (ECF No. 123 at 120 ¶ 11.2.) This general statement does not include the return information of any taxpayer. See 26 U.S.C. § 6103(b)(2) (excluding from the definition of “return information” data in a form that does not identify, directly or indirectly, a particular taxpayer). And as explained above, Statement 4's reference to the filing of this complaint is not a disclosure of Clark's return information.

E. Commissioner Rettig's Statements Do Not Disclose Any Return Information

Clark's claim that Commissioner Rettig (the “Commissioner”) disclosed his return information fails. The Commissioner's statements (Statement 5 and 7) do not disclose any return information, let alone Clark's return information.

In IR-2019-182, the Commissioner states: “We will not stop in our pursuit of everyone involved in the creation, marketing, promotion and wrongful acquisition of artificial, highly inflated deductions based on these aggressive transactions.” (ECF No. 123 at 120-21 ¶ 11.e.) Contrary to Clark's conclusory allegations, this statement does not contain any return information. It notifies the public that curbing abusive syndicated conservation easements is a top priority of the IRS. Simply because the Government alleges in its complaint that Clark is a promoter of such a scheme does not mean that the Commissioner's description of a tax enforcement priority encompasses his return information.

Similarly, the Commissioner's statement that “[w]e don't appreciate the activities that have gone on with respect to the syndicated conservation easements; there are some artificial appraisals there, some fatal flaws” does not disclose return information. (Id. at 121 ¶ 11.g.) Although appraisals are data received by the IRS, there is nothing in the Commissioner's statement to identify those appraisals to Clark. It represents data in a form that cannot identify any specific taxpayer and as such, falls outside the definition of return information. See 26 U.S.C. § 6103(b)(2) (excluding from the definition of “return information” “data in a form which cannot be associated with, or otherwise identify, directly or indirectly, a particular taxpayer”).

F. An Unknown IRS Official Did Not Disclose Any Return Information to the Richard Rubin of the Wall Street Journal

Clark's claim that the IRS wrongfully disclosed his return information to the Wall Street Journal fails. To state a claim for wrongful disclosure of return information, Clark must at a minimum allege who made the disclosure. See Bancroft Global Dev. v. United States, 330 F. Supp. 3d 82, 101 (D.D.C. 2018). Because Clark fails to allege who made the alleged disclosure to the Wall Street Journal, his claim must be dismissed.

But even if Clark could plausibly identify the official who made the alleged wrongful disclosure, his claim regarding the Wall Street Journal still fails. The statement that “[t]he IRS said . . . its combined civil and criminal efforts include billions of dollars in deductions and thousands of investors in [syndicated conservation easements]” is a general statement that does not implicate § 6103. (ECF No. 123 at 121 ¶ 11.f.) To be sure, there is nothing in that statement that qualifies as “return information” of Clark or any other person.

Similarly, there is no “return information” in the following statement: “In some deals, high-income people can invest $1 and claim $4 or more in deductions within months, enough to turn a quick profit on the tax break. Those deals have been particularly popular in the southeastern U.S.” (Id.) This statement — which is not even attributed to the IRS in either the counterclaim or the article — simply describes the scheme and informs the reader where theses schemes were popular.

Last, the article's statement that “[a]lso last year, the IRS filed suit against easement promoters in Georgia” does not disclose any return information. (Id.) Again, there is nothing in Clark's counterclaim or the article to attribute this statement to the IRS. As a result, it is not plausible that this information came from the IRS. Regardless, the IRS is free to divulge the existence of a publicly filed complaint without violating § 6103. See Thomas, 890 F.2d at 21. Consequently, Clark's claim that the IRS disclosed his return information to the Wall Street Journal fails.

G. The O'Donnell Statement Does Not Disclose Any Return Information

The O'Donnell Statement (Statement 8) does not include any return information of Clark or any other person. Clark alleges that Douglas O'Donnell, Commissioner of the IRS Large Business and International Division, at the AICPA National Tax Conference, improperly disclosed his return information in the following statement:

According to O'Donnell, the IRS looked for reporting gaps in the disclosures filed by investors and material advisers to determine if reporting obligations were being met. 'To the extent they aren't, we have appropriate penalties to use to bring people into compliance,' O'Donnell said. 'And we began doing that work.' . . . We found out that we didn't necessarily have enough appraisers or valuation specialists, so we've gotten approval to contract for a significant number of outside experts to help us with this work.' (ECF No. 123 at 122 ¶ 11.h.)

Absent from the O'Donnell Statement is any information that qualifies as “return information.” The statement: (1) describes actions the IRS has taken to determine whether taxpayers satisfied their reporting obligations under 26 C.F.R. § 1.6011-4 to disclose their participation in syndicated conservation easement transactions, see IRS Notice 2017-10, 2016 WL 7422633 (identifying syndicated conservation easements as listed transactions and requiring participants to disclose these transactions under 26 C.F.R. § 1.6011-4); (2) reminds conference attendees that the IRS can penalize taxpayers who fail to meet their disclosure obligations; and (3) informs attendees that the IRS has received approval to hire additional appraisers to assist in its efforts to combat abusive syndicated conservation easements. Nothing about the O'Donnell Statement refers or relates to Clark in any manner. And so, Clark's claim that the O'Donnell Statement disclosed his return information fails.

H. The Lough Statement Does Not Disclose Any Return Information

Clark's allegation that the Lough Statement (Statement 9) discloses his return information fails. Tax Notes reported that “[Deputy Commissioner] Lough said that when litigating syndicated easement cases, the IRS will follow the successful strategy used against microcaptive transactions. 'I'm very comfortable will have wins in conservation easement cases because some of the appraisals are really bad and can't stand on their own.'” (ECF No. 123 at 122-23 ¶ 11.i.) Absent from the Lough Statement is any return information. Indeed, her comment regarding the appraisals does not identify Clark directly or indirectly. The fact that Clark submitted appraisals in connection with conservation easements does not mean that every statement by the IRS regarding insufficiency of some (unidentified) appraisals is a disclosure of his (or anyone else's) return information. Accordingly, Clark's allegation that the Lough Statement discloses his return information is not plausible.

I. Clark Fails to State a Claim that the Government Disclosed his Return Information in Other Unknown Statements

Clark's catchall allegation that on information and belief, the Government has made other statements disclosing his protected tax return information cannot save his counterclaim from dismissal. (ECF No. 123 at 123 ¶ 12.) A party seeking damages under § 7431 must allege “who made the alleged disclosures, to whom they were made, the nature of the disclosures, the circumstances surrounding them, and the dates on which they were made.” Bancroft, 330 F. Supp. 3d at 101 (citation and quotation omitted). The party must also allege the specific return or return information that was disclosed in violation of § 6103. Id.

Here, Clark's catchall allegation fails to contain any of the requisite information “to put the Government on notice of which actions [he] challenges.” Id. This type of shotgun pleading cannot withstand a motion to dismiss. See Nezbeda v. Liberty Mutual Ins. Corp., 306 F. Supp. 3d 1335, 1344-45 (N.D. Ga. 2017) (quoting Weiland v. Palm Beach City Sherriff's Office, 792 F.3d 1313, 1320 (11th Cir. 2015) (explaining that pleadings consisting of conclusory allegations that fail “to give defendants notice of the claims against them and the grounds upon which each claim rests” are shotgun pleadings and therefore must be dismissed). Indeed, the Government cannot evaluate the merits of Clark's claim for unknown and unspecified disclosures or formulate a defense to that claim. Consequently, any claim that Clark asserts for unknown disclosures of his return information must be dismissed. See Bancroft, 303 F. Supp. 3d at 103 (dismissing wrongful disclosure count with too few facts to put the Government on notice of the plaintiff's claim).

CONCLUSION

Clark fails to state a claim for relief under § 7431 because he has not — and cannot — allege that the Government disclosed his “return information.” The Government publicized the filing of the underlying complaint in this matter and made general statements regarding its tax enforcement efforts. Informing the public of a filed complaint and its tax enforcement priorities does not implicate § 6103. Accordingly, Clark's counterclaim must be dismissed.

Respectfully submitted,

RICHARD E. ZUCKERMAN
Principal Deputy Assistant Attorney General

THOMAS K. VANASKIE
D.C. Bar No. 1000405
BEATRIZ T. SAIZ
N.J. Bar No. 024761995
Trial Attorneys, Tax Division
U.S. Department of Justice
P.O. Box 14198
Washington, D.C. 20044
202-305-7921 (v)
202-514-4963 (f)
Thomas.K.Vanaskie@usdoj.gov

Of Counsel:

Byung J. Pak
United States Attorney

Neeli Ben-David
Assistant United States Attorney
Georgia Bar No. 049788
Office of the U.S. Attorney
75 Ted Turner Drive, SW, Suite 600
Atlanta, GA 30303