REQUESTED TAX CONVENTION DOCUMENTS EXEMPT FROM DISCLOSURE.

[3] On February 17, 1999, Tax Analysts filed this suit for failure to produce all the information sought in the FOIA requests. Id. at 1, 5. Tax Analysts narrowed this case to only the claimed exemption under 5 U.S.C. § 552(b)(3), leaving exemptions 5 and 6 uncontested. Id. at 2. Some of the specific information requested includes the identification of the countries with respective documents, the disclosure of countries' representatives, and other material associated with a foreign country's tax law. Pl.'s Opp'n to Def.'s Mot. for Summ. J. & Pl.'s Cross-Mot. for Summ. J. ("Pl.'s Opp'n & Cross-Mot.") at 9-12.

[4] On June 14, 2001, the court issued an order granting the plaintiff's motion to withdraw as moot its initial motion for partial summary judgment because Congress had recently enacted 26 U.S.C. § 6105 (2000), codifying treaty secrecy provisions such as the nondisclosure language in dispute here. Order dated June 14, 2001; Def.'s Mot. for Summ. J. at 2 n.3. Both parties now move the court for summary judgment. In short, they dispute whether the IRS can properly withhold the requested information pursuant to the treaty secrecy exemption set forth in 26 U.S.C. § 6105(c)(1)(E). Stipulation at 2.

[6] In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. Id.

[7] In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999); Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Greene, 164 F.3d at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (internal citations omitted).

[9] In the case at bar, various countries exchanged information at the PATA and G-4 tax conventions pursuant to a nondisclosure provision, which the parties agree is consistent with the United States Model Income Tax Convention ("U.S. Model Treaty" or "Art. 26, cl. 1"). Stipulation at 2-3. The relevant language is as follows:

[10] Both parties agree that for the purpose of their cross- motions for summary judgment, the only question at issue is whether any information contained in the requested documents "that otherwise would not be treated as secret under the domestic laws of the United States is nevertheless treated as confidential or secret under the tax conventions and therefore would constitute tax convention information as defined by 6105(c)(1)(E)." Stipulation at 2. In other words, the debate focuses on whether the information requested by the plaintiff falls within the ambit of the U.S. Model Treaty in conjunction with Section 6105.

[11] The plaintiff contends that the U.S. Model Treaty provides for the protection only of taxpayer information that appropriately corresponds with 26 U.S.C. § 6103. Pl.'s Opp'n & Cross-Mot. at 19-21. Section 6103 protects taxpayer privacy by preventing the disclosure of tax return information. Id. at 21. The defendant counters that notwithstanding Section 6103, Section 6105 exempts the information requested from the PATA and G-4 tax conventions because Congress enacted this section to protect information that participating countries chose not to disclose, and more specifically, "tax convention information . . . including the association of a particular treaty partner with a specific issue or matter." Def.'s Mot. for Summ. J. at 10-11 (quoting H. R. Conf. Rep. No. 106- 1033, at 1011). The defendant asserts that the documents fall under Section 6105(c)(1)(E)'s definition of "tax convention information" as "any other information exchanged pursuant to a tax convention which is treated as confidential or secret under the tax convention." Id. at 10 (quoting Section 6105). In short, the defendant contends that the language of the U.S. Model Treaty does not restrict Section 6105, but instead requires the nondisclosure of the tax convention information in dispute here pursuant to exemption 3. Id. at 4.

[12] The court concludes that the defendant can make the requisite showing, and, in contrast, the plaintiff fails to proffer any rationale beyond conclusory statements. Greene, 164 F.3d at 675. The court first examines the plain language used by Congress in the U.S. Model Treaty. U.S. Model Treaty, Art. I, cl. 1. The provision begins with "any information," and uses the conjunction "and" to indicate that "any information" shall be treated as secret if it is both protected by U.S. domestic law and is disclosed to only the relevant tax authorities. U.S. Model Treaty, Art. I, cl. 1; Def.'s Mot. for Summ. J. at 8. Likewise, Section 6105(c)(1)(E) provides for the protection of "any other information exchanged." Section 6105 (emphasis added); Def.'s Reply & Opp'n to Pl.'s Cross-Mot. for Summ. J. ("Def.'s Reply") at 2-3. The court agrees with the defendant that both the language of the treaty and the statute show Congress's clear intent not to limit the nondisclosure provisions to information regarding individual taxpayers and also to require the release to appropriate authorities. 26 U.S.C. § 6105(b)(4); H. R. Rep. 106-1033, at 1011; Def.'s Mot. for Summ. J. at 8. In fact, Congress created an exception under Section 6105(b)(4) that "any tax convention information not relating to a particular taxpayer " may be disclosed only "if the Secretary determines, after consultation with each other party to the tax convention, that such disclosure would not impair tax administration." H.R. Rep. No. 106-1033, at 1011-12 (emphasis added); Def.'s Reply at 5. The defendant thus acted properly by consulting with respective tax convention members and withholding information that other countries "treated as secret." U.S. Model Treaty Art. I, cl. 1; Def.'s Reply at 5.

[13] Nonetheless, the plaintiff insists that Section 6103 is controlling and points to a D.C. Circuit holding that Section 6103 does not protect legal analysis and legal conclusions. Tax Analysts v. IRS, 117 F.3d 607, 611-12 (D.C. Cir. 1997); Pl.'s Opp'n & Cross-Mot. at 19. This case does not apply, however, since Section 6103 is not at issue in the case at bar. Indeed, in response to the D.C. Circuit's opinion in Tax Analysts, Congress enacted Section 6105, expressing its clear intent to fully exempt previously unprotected information under Section 6103 if the material qualifies as "tax convention information." Tax Analysts, 152 F. Supp. 2d at 12; H.R. Conf. Rep. No. 106-1033, at 1008-09. Contrary to the plaintiff's position that the U.S. Model Treaty most resembles Section 6103, the defendant persuasively points out that Congress believed "the exchange of information articles [cited in Section 6105 and other nondisclosure treaty provisions] may be similar to, or represent a variation on, Article 26 of the 1996 U.S. model income tax treaty." Def.'s Mot. for Summ. J. at 11 (quoting H.R. Conf. Rep. 106-1033, at 1006).

[14] For the plaintiff's textual argument to succeed, the court must apply Section 6103 over Section 6105 and render superfluous the second clause of the treaty confining the release of information to relevant tax authorities. Tax Analysts, 152 F. Supp. 2d at 12 (noting that Section 6105 is separate and distinct from Section 6103); Def.'s Reply at 4-5.

[15] In addition, another member of this court has already ruled on Section 6105(c)(1)(E), agreeing with the IRS's previous argument. In Tax Analysts, the court deemed persuasive the IRS's explanation that:

[16] While the court need not consider the legislative history of Section 6105 since its plain meaning is clear, even if the court were to assess the congressional intent underlying the statute, such an analysis would support the defendant's position. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241 (1989) (holding that when a "statute's language is plain, the sole function of the court is to enforce it according to its terms"). Congress's recent enactment of Section 6105 indicates that it intended for tax convention information to be subject to heightened disclosure standards as opposed to enacting legislation that would protect information that was already exempt from disclosure under Section 6103. 26 U.S.C. § 6105. Furthermore, the "IRS has expressed the precise concern that Congress sought to address in enacting § 6105 . . . to avoid adversely affecting the working relationship among treaty partners." Tax Analysts, 152 F. Supp. 2d at 13. Moreover, the statute's text stating that, "any other information . . . which is treated as confidential or secret . . .," emphasizes the importance of honoring the treaty partners' expectations and actions at the time of the requested disclosure. 26 U.S.C. § 6105(c)(1)(E) (emphasis added); Def.'s Reply at 8-9.

[17] The court concludes that the information specifically withheld by participating countries must remain exempt. The PATA and G-4 information satisfies Section 6105(c)(1)(E)'s definition of tax convention material. 26 U.S.C. § 6105. Based on the recent expansion of FOIA's exemption 3 to include tax convention nondisclosure provisions via Section 6105, the court rules that the defendant need not produce the requested materials. In sum, the defendant has met its burden of showing that there is no genuine issue of material fact by proving the validity of the exemption it asserts. Weisberg, 705 F.2d at 1350; Tax Analysts, 152 F. Supp. 2d at 9. Accordingly, the court concludes that the defendant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp., 477 U.S. at 322.

[20] ORDERED that the defendant's motion for summary judgment is GRANTED; and it is

[21] FURTHER ORDERED that the plaintiff's motion for summary judgment is hereby DENIED.

[22] SO ORDERED.

Counsel for the plaintiff