Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gordon

United States District Court, W.D. Kentucky, Louisville Division

December 5, 2019

UNITED STATES OF AMERICA PLAINTIFF
v.
CURTIS GORDON, JR. DEFENDANT

          MEMORANDUM OPINION AND ORDER

          GREG N. STIVERS, CHIEF JUDGE

         This matter is before the Court on Plaintiff's Motion to Dismiss (DN 14), Defendant's Motion for Leave to File Amended Counterclaim (DN 23), and Defendant's Motion for Leave to File Amended Response to Plaintiff's Motion to Dismiss (DN 26). These motions are ripe for adjudication. For the reasons that follow, Plaintiff's motion is GRANTED and Defendant's motions are DENIED.

         I. BACKGROUND

         On October 22, 2010, a jury found Defendant Curtis Gordon, Jr. guilty of filing false income tax returns. (Pl.'s Mot. Dismiss Ex. 2, at 1-2, DN 14-4). In preparation for Gordon's sentencing phase of trial, his expert witness prepared two sets of demonstration tax returns to be utilized in Gordon's defense: one set demonstrating Gordon's “exaggerated” income amount the government attributed to Gordon and the other a “more realistic” income amount he asserted was the correct amount. (Def.'s Resp. Pl.'s Mot. Dismiss 1-2, DN 15; Answer & Countercl. ¶ 10, DN 8). Believing that he would be able to use that demonstrative evidence during his sentencing phase, Gordon presented the demonstration returns to the Court and the Assistant United States Attorney (“AUSA”) prosecuting his case. (Def.'s Resp. Pl.'s Mot. Dismiss 3; Answer & Countercl. ¶ 12). The Court ruled the demonstration returns inadmissible and returned the Court's copies to Gordon. (Def.'s Resp. Pl.'s Mot. Dismiss 3; Answer & Countercl. ¶ 12). Gordon claims that the AUSA's Office did not return its copies. (Def.'s Resp. Pl.'s Mot. Dismiss 3; Answer & Countercl. ¶ 12).

         Gordon alleges that the set of demonstration returns prepared by his expert representing the government's “exaggerated” income attributed to Gordon somehow fell into the hands of an unknown third party, perhaps a government official, who fraudulently filed the demonstration returns under his name with the IRS. (Def.'s Resp. Pl.'s Mot. Dismiss 2). Gordon claims the IRS then used those demonstration returns to levy the tax assessments against Gordon that are the basis for the IRS's tax collection claim in this case. (Answer & Countercl. ¶ 32).

         The United States filed this tax collection action against Gordon. (Compl. 1, DN 1). Gordon has asserted a counterclaim alleging unauthorized disclosure and inspection of tax return information under 26 U.S.C. § 7431(a). (Answer & Countercl. 6-8). The United States moved for dismissal of that counterclaim on March 26, 2019. (Pl.'s Mot. Dismiss 2, DN 14). Gordon responded to that motion on April 14, to which the United States replied on April 30. (Def.'s Resp. Pl.'s Mot. Dismiss 7; Pl.'s Reply Def.'s Resp. Pl.'s Mot. Dismiss 9, DN 18).

         Gordon then subsequently moved for leave to file an amended counterclaim and an amended response to the United States's motion to dismiss on September 27. (Def.'s Mot. Leave File Am. Countercl. 1, DN 23; Def.'s Mot. Leave File Am. Resp. 1, DN 29). The United States responded on October 18. (Pl.'s Resp. Def.'s Mot. Leave File Am. Countercl. 1, DN 28; Pl.'s Resp. Def.'s Mot. Leave File Am. Resp. 1, DN 29). The Court granted Gordon leave to file a belated reply, and Gordon has since filed that reply. (Order, DN 30; Pl.'s Reply Mot. Leave File Am. Countercl., DN 31).

         II. JURISDICTION

         To the extent this Court possesses jurisdiction over this matter, it is through federal question jurisdiction pursuant to 28 U.S.C. § 1331.

         III. DISCUSSION

         A. Plaintiff's Motion to Dismiss

         In its motion to dismiss, the United States proffers two arguments as to why Gordon's Section 7431(a) claims should be dismissed. First, the United States asserts that the claims are time barred by the two-year statute of limitations for bringing such claims set forth in Section 7431(d). Second, the United States contends that Section 7431(a) does not afford Gordon the relief he seeks. The United States also argues that Gordon's proposed amendments to his counterclaim and response to its motion to dismiss are futile and should not be allowed.

         1. 26 U.S.C. § 7431(a)

         Federal law prohibits the inspection or disclosure of any “return or return information” with respect to a taxpayer by an officer or employee of the United States. 26 U.S.C. § 7431(a). A “return” is “any tax or information return . . . which is filed with the Secretary by, on behalf of, or with respect to any person . . . .” 26 U.S.C. § 6103(b)(1) (emphasis added). The term “return information” refers to any information “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.” Id. § 6103(b)(2)(A) (emphasis added). The portions of the statutes emphasized in the prior two sentences form the “pass through the IRS” rule followed by all courts who have ruled on this issue. See, e.g., Bankcroft Glob. Dev. v. United States,330 F.Supp.3d 82, 97-99 (D.D.C. 2018); Stokwitz v. United States, 831 F.2d 893, 897 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.