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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

WARD DEAN,	)
	)
Plaintiff,	)
	)
v.	)	No.3 :03 cv 00065 (LAC/MCR)
	)
UNITED STATES, et al.,	)
	)
Defendants.	)
	)

MEMORANDUM IN SUPPORT OF
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PRELIMINARY STATEMENT

Special Agent Tanya Burgess, while investigating Ward Dean for potential violations of the Internal Revenue Code for the tax years 1997 through 2001, issued summonses and as well as talked to third parties. During these contacts, Special Agent Burgess, in one form or another, disclosed that Dean was under investigation by IRS Criminal Investigation. Dean alleges that, by disclosing he was under investigation by Criminal Investigation, Special Agent Burgess made unauthorized disclosures of return information in violation of Section 6103 of the Internal Revenue Code. But a special agent may disclose taxpayer return information to a third party if necessary to obtain information not otherwise reasonably available.

In addition, if the disclosure is unauthorized but is made in good faith reliance on IRS regulation, policy, and procedure, there is no cause of action. Because contacting third parties was necessary and because IRS policy and procedure allows a special agent to disclose that a person is under investigation by IRS Criminal Investigation, there was no violation of Section 6103, and the defendants are entitled to summary judgment.

STATEMENT OF FACTS

IRS began its investigation of Dean's income tax liability by conducting a civil examination. In October 2002, the civil examination was referred to IRS Criminal Investigation, and an investigation of Dean for the years 1997 through 2001 was initiated in order to determined if Dean committed any offense under the Internal Revenue Code. The basis for both the investigations was that Dean filed income tax returns indicating that he earned zero income for the years 1997 through 2001, except for 2000 when he did not file any income tax return. (Undisputed Facts 2.)

Tanya D. Burgess, a special agent with the IRS Criminal Investigation in Pensacola, Florida, was assigned to the Dean investigation as part of her official duties. (Id. 1.) In conducting her investigation, Special Agent Burgess took necessary steps to gather needed information. Initially, on October 3, 2002, she went in person with Revenue Agent Wayne Jackson to Dean's residence to inform him that he was under investigation and attempted to interview him. (Id. '3; Burgess Decl. 6.) Dean refused and ordered the IRS agents to leave his property. (Undisputed Facts 3.)

In response to a letter that Dean sent to Special Agent Burgess after the visit to Dean's residence shortly after October 3rd, Special Agent Burgess informed Dean that he could provide the Service with any information that he would like to be considered as part of the investigation. (Id. '4.) He has yet to provide any information to the IRS to date. (Id.) Not only has Dean not provided information, he has continually challenged the IRS's authority to conduct both its civil examination and subsequent criminal investigation. (Id. 5-8.) Because Special Agent Burgess reasonably believed that Dean would not cooperate based upon Dean's conduct, she had no other choice but to obtain information from third parties. (Id. 8.) Even if Dean was cooperating with the investigation, for argument's sake, Special Agent Burgess' practice is to issue summonses to and conduct interviews with third parties because IRS regulation, policy, and procedure requires special agents to do so. (Id. 9-11.)

In order to obtain needed information from third parties, Special Agent Burgess used two typical methods: (1) issuing administrative summons; and (2) interviewing witness. (Id. 12- 14.) Thus, there are two distinct categories of disclosures: written and oral. It was from these two types of contacts that occurred during the investigation, which resulted in Dean filing his complaint on February 2003 for unlawful disclosure of return information under Section 6103.

For the written disclosures, Dean alleges, and it is undisputed, that Special Agent Burgess issued administrative summonses that indicated that they were issued from IRS "Criminal Investigation." (Id. 13,20.) Copies of three of the summonses are attached as Exhibits A through C to the complaint, which were issued in October 2002. It is further alleged that "Criminal Investigation Division" appeared on the return address of the envelopes in which the summons were sent. (Id. 23; Compl. 9.) Dean alleges that by placing "Criminal Investigation" or "Criminal Investigation Division" or some other variation thereof on IRS summonses and envelopes, illegal disclosures occurred. (Compl. 10, 12, 15.)

For the oral disclosures, Special Agent Burgess spoke with third parties by telephone and in person. (Undisputed Facts 14, 17.) In accordance with standard procedures, she identified herself as a special agent from the Criminal Investigation Division and informed them that she was conducting an investigation of Dean. (Id. 16-18.) She did not say Dean was under "criminal investigation." (Id. 25.) Simply, Special Agent Burgess identified herself from the Criminal Investigation Division, Dean asserts that those third parties were informed that Dean was under criminal investigation. (Id. 19; Compl. 6, 11.) These types of oral disclosures are what allegedly resulted in the violation of Section 6103. Dean alleges that it was not necessary for Special Agent Tanya Burgess to identify herself as being from the Criminal Investigation Division or that she was conducting an investigation of Dean in order to secure the information sought. (Compl. 17-18.)

Both the oral and written third party contacts were made for specific and discrete purposes. All of the third parties were identified in Dean's bank records and had engaged in financial transactions with him. Special Agent Burgess specifically contacted these third parties, as part of her investigative activities, to corroborate the bank records and to determine if Dean had received unreported income. (Undisputed Facts 15, 21.) The purpose for these contacts was to obtain necessary information relevant to the investigation.

For the reasons discussed below, the defendants will show that all the disclosures listed above were either authorized by Section 6103 or, in the alternative, that the disclosures were made pursuant to a good faith interpretation of Section 6103. Because there is no dispute of material fact, summary judgment for the defendants is appropriate as a matter of law.

ARGUMENT

I. THE DISCLOSURE OF RETURN INFORMATION W AS AUTHORIZED BY SECTION 6103

A. Controlling Statutes, Regulations, and Case Law.

A review of the relevant statutes, regulations and case law demonstrates that Special Agent Burgess' disclosures of Dean's return information was authorized. Section 6103(a) of the Internal Revenue Code provides, in general, that tax returns and "return information" are confidential and, except as authorized by the Internal Revenue Code, shall not be disclosed by any officer or employee of the Internal Revenue Service. Section §6103(b)(2) defines "return information" broadly, and includes the fact that a taxpayer's return is under examination or investigation. Section 6103(b )(8) defines "disclosure" to mean, "the making known to any person in any manner whatever a return or return information."
Dean alleges, arid the defendants acknowledge, that by issuing summonses and conducting interviews with third party witnesses, Special Agent Burgess disclosed that the plaintiff was under investigation by the Criminal Investigation Division of the Internal Revenue Service.

(Undisputed Facts 14-15.) The fact that a taxpayer is being investigated falls within the definition of "return information" in Section 6103(b)(2)(A), which includes "whether the taxpayer's return was, is being, or will be examined or subject to other investigation." It is not disputed that a disclosure of Dean's return information was made. The issue before the Court is whether such a disclosure is authorized by the Internal Revenue Code.

Section 6103(k)(6) is the provision that directly impacts whether disclosures of return information are authorized. That section states that a special agent may as part of a investigation, disclose return information to the extent that such disclosure is necessary in obtaining information, which is not otherwise reasonably available, with respect to the correct determination of tax, liability for tax, or the amount to be collected or with respect to the enforcement of any other provision of this title. Such disclosures shall be made only in such situations and under such conditions as the Secretary may prescribe by regulation. 26 U.S.C. §6103(k)(6) (emphasis inserted).

Pursuant to this express grant of rule-making authority, the Secretary promulgated Treas. Reg. (26 C.F.R.) §301.6103(k)(6)-1, attached as Ex. 1.2 The regulation authorizes an IRS officer within the scope of her criminal law duties to make disclosures of "taxpayer identity information ..., the fact that the inquiry pertains to the performance of official duties, and the nature of the official duties." Treas. Reg. §301.6103(k)(6)-1(a) (emphasis inserted); Comyns v. United States, 155 F. Supp. 2d 1344,1349 (S.D. Fla. 2001), affirmed, 287 F.3d 1034 (llth Cir. 2002). The regulation further defines "official duties" as any activities "to establish or verify misconduct (or possible misconduct) or other activity prohibited by the internal revenue laws", which would include a special agent's investigation. Treas. Reg. §301.6103(k)(6)-1(b)(4); Comyns, 155 F. Supp. 2d at 1349.

This regulation was superceded by a new, temporary regulation on July 10, 2003. Treas. Reg. §301.6103(k)(6)-lT. The purpose of the new regulation was to further "clarify and elaborate on the facts and circumstances in which disclosure pursuant to Section 6103(k)(6) is authorized." See Disclosure of Return Information by Certain Officers and Employees for Investigation Purposes, 68 Fed. Reg. 41,073, at 41,074 (July 10,2003), attached as Ex. 2. Because the purpose of the temporary regulation is to add clarity to the old regulation that was in effect at the time the alleged disclosures occurred, the defendants will refer to the new regulation and the Federal Register as useful insight as to the intent and purpose of the statute and regulations.

Based upon an analysis of the statutes and regulations cited above, the Comyns court articulated this Circuit's rule3 pertaining to a special agents' disclosures during an investigation:

Tax return information, including the fact that a taxpayer is under
investigation may not be disclosed, unless such disclosure is necessary in
obtaining information not otherwise reasonably available, in which case
(pursuant to the Secretary's regulation) such agent may reveal 1) the
taxpayer's identity, 2) the fact that the agent's inquiry pertains to an
official investigation, and 3) the nature of that investigation. Comyns, 155 F. Supp. 2d at 1349 (underlining inserted). Thus, for Special Agent Burgess' disclosures to be authorized, the defendants must show that the information was not otherwise reasonably available and that the disclosure of the return information was necessary. If these two prongs are satisfied, Special Agent Burgess was authorized to disclose to third parties the nature of her investigation. (Id.) Applying this Circuit's rule to the facts at hand demonstrate that Tanya Burgess' disclosures were authorized as a matter of law.

The Eleventh Circuit affirmed and adopted the lower court's decision in every regard. "[I]t is unnecessary for us to write a full-blown opinion because the opinion by District Judge Kenneth L. Ryskamp ...adequately reflects the facts, the law and the reasoning that supports that holding." Comyns, 287 F.3d at 1034.

Before applying the facts to the law, the temporary regulations provide an
example of an authorized disclosure permitted under Section 6103. This example is particularly helpful because the facts are uncannily similar to the facts before the Court. In whole, the example explains,

A special agent is conducting a criminal investigation of a taxpayer, a doctor, for
tax evasion. Notwithstanding the records provided by the taxpayer and the
taxpayer's bank, the special agent decided to obtain information from the
taxpayer's patients to verify amounts paid to the taxpayer for his services.
Accordingly, the special agent sent letters to the taxpayer's patients to verify these amounts. In the letters, the agent disclosed that he was a special agent with IRS-CI and that he was conducting a criminal investigation of the taxpayer. Section 6103(k)(6) permits these disclosures to confirm the taxpaver's income. The decision of whether to verify information already obtained is a matter of investigative judgment and is not limited by section 6103(k)(6).

B. The Information the Special Agent Sought from Third Parties was not Otherwise Reasonably Available.

1. Dean's Failure to Cooperate.

When a taxpayer is not cooperating with the investigation, it is reasonable for information to be sought from third parties. Roebuck v. United States, 1999 WL 501003, at * (E.D.N.C. June 8, 1999, affirmed, 84 A;F.T.R.2d 99-7051 (4th Cir.1999). Indeed, if a special agent could not contact third parties under these circumstances, a special agent could not conduct an investigation.
This is the case here, because the facts at hand affirmatively demonstrate that Dean was not cooperating, as shown by several occurrences.

When Special Agent Burgess and Revenue Agent Jackson contacted Dean on October 3rd, Dean declined to be interviewed and ordered them to leave his property. (Undisputed Facts 3.) After this initial contact, Special Agent Burgess informed Dean in writing that he could voluntarily provide the IRS with any information that he would like to be considered as part of the investigation. To date, Dean has not provided any information and has refused to cooperate with the investigation. (Id. 4.) Dean also sought to quash the summons issued to Dillon Vickery by Special Agent Burgess asserting that the summons was improper. Dean's basis was that the IRS did not have authority over him because he is not required to pay income tax. (Id. 6.) Dean also refused to comply with a subpoena to provide a handwriting exemplar, challenging Special Agent Burgess' authority to conduct the investigation. (Id. ~7.) He provided the handwriting exemplar only after the Court ordered him to comply, and he then only did so under "threat, duress and coercion." (Id.) Treas. Reg. §301.6103(k)(6)-lT(d), Example 3 (emphasis inserted).

Adding to her belief that Dean would not cooperate with the investigation, Dean contacted third parties that were issued summonses during the civil examination and threatened to instigate litigation if they compiled with the summonses because they were "phony document[s]." (Id. 5.) The basis for this assertion is Dean's expressed belief that the revenue agent did not have the authority to issue the summonses. (Id.) These actions would belie any claim asserted by Dean that he was cooperating with the investigation. To the contrary, Dean has continually challenged the IRS's authority to conduct its investigation.
Based on Dean's course of conduct and his refusal to voluntarily provide information to, the IRS, it was reasonable for Special Agent Burgess to believe that Dean would not cooperate, which required her to seek information from third parties. (Id. 8.)

2. Special Agents Are Required to Contact Third Parties to Obtain, Corroborate and Verifv Information.

For argument's sake, even assuming that Dean was cooperating with the investigation and providing information, there is no rule requiring a special agent to seek the information directly or solely from the taxpayer who is under investigation. Roebuck, 1999 WL 501003, at *3.5 In fact, standard operating procedures for special agents require them to make third party contacts. The portion of the Internal Revenue Manual pertaining to criminal investigations makes it the special agent's duty to interview the taxpayer and witnesses with relevant information to obtain leads.

The temporary regulations now provide a definition for "information not
otherwise reasonably available" which explains: "This definition does not require or create the presumption or expectation that an internal revenue or TIGT A employee must seek information from a taxpayer or authorize representative prior to contacting a third party witness in an investigation. Moreover, an internal revenue or TIGTA employee may make a disclosure to a third party witness to corroborate information provided by a taxpayer." See Treas. Reg. §301.6103(k)(6)-1 T(c)(3).

Two other pertinent sections of the Internal Revenue Manual set forth situations where "necessary information generally will not be available from the taxpayer or will not be in a usable form." (Id. 11 (citing Int. Rev. Man. §§9.3.1.3.1(2)(a.) and §11.3.21.3(5)(a.).) One of the situations set forth is when "corroboration is needed for a taxpayer's statement or records." (Id.) As set forth in Special Agent Burgess' declaration, she was able to identify third parties from Dean's bank records with which Dean had engaged in financial transactions. She then contacted these specific entities in order to verify the transactions and determine if the transactions were a source of income which Dean failed to report. (Undisputed Facts II, 15, 21; Burgess Decl. 18, 24.) Thus, all of the third party contacts were, by definition, necessary because Special Agent Burgess had to corroborate, verify and obtain additional information based upon Dean's records. (Undisputed Facts 9; Burgess Decl. 12-13.)

Obtaining, verifying and corroborating information directly with a third party has other direct benefits to an investigation. It better ensures that the information would be admissible at trial, for example, if Dean claimed his Fifth Amendment privilege. It further ensures, should the information be presented at trial, that it is reliable. Verification and corroboration keep an investigation from being solely based on the taxpayer's representations and information, which may be inherently unreliable because of the conflict of interest that exists between the IRS and the taxpayer being investigated. (Burgess Decl. 14.)

These are tangible benefits necessitating third party contacts during an investigation. The district court in Roebuck agreed with this analysis -- special agents, regardless of the circumstances, must contact third parties as part of the investigative procedures. "[E]ven if Plaintiff had provided Special Agent Taggart with the requested information, under standard operating procedure the third parties still would have been contacted in the interest of verifying the accuracy of the information." Roebuck, 1999 WL 501003, at *3 (emphasis inserted); but cf Payne v. United States, 289 F.3d 377, 382-84 (5th Cir. 2002) (determination if taxpayer is a reasonable source of information is made under the facts of each case, and the taxpayer's cooperation is a factor). The Internal Revenue Manual and case law confirm that it was required, and thus reasonable, for Special Agent Burgess to have sought information from third parties even if Dean was cooperating with the investigation.

It was reasonable under the facts and circumstances for Special Agent Burgess to seek information from third-parties because Dean was not cooperating with the investigation. But even if Dean was cooperating, a special agent is required by the Internal Revenue Manual to seek information from third parties to obtain, verify and corroborate information. As a matter of law, the information sought from the third parties was not otherwise reasonably available.

The background notes to the new temporary regulations affirm this conclusion: "The facts and circumstances will help determine the necessity of the disclosures, but IRS and TIGT A officers of employees have wide latitude to determine whether the taxpaver is a reasonable source of information. The temporary regulations clarify that disclosures are authorized to verify independently, or to corroborate, from third party sources, information obtained from or concerning the taxpayer." See 68 Fed. Reg. at 41,075 (emphasis inserted).

C. The Disclosure of Return Information Made to the Third-Parties Was Necessary.

The second question that must be answered, then, is whether it was "necessary" for Special Agent Burgess to identify herself as a special agent from the IRS Criminal Investigation Division, to inform third parties that she was conducting an investigation of Dean and to display the words "Criminal Investigation" on the summonses and on the return addresses of envelopes.

A District Court in the Eastern District of North Carolina, which was affirmed by the Fourth Circuit, has considered whether IRS special agents violate Section 6103 when they disclose to third party witnesses that the taxpayer is the subject of an investigation. See Roebuck, 1999 WL501003, affirmed, 84 A.F.T.R.2d99-7051 (4thCir.). In Roebuck, the plaintiff alleged that the special agent violated Section 6103 when she disclosed to third party witnesses that he was under investigation by IRS Criminal Investigation Division. The Special Agent served summonses by mail on two companies. In the envelopes, she included her business card, which identified her as a special agent with the IRS Criminal Investigation Division. She also interviewed two witnesses in person, identifying herself by displaying her credentials, giving them her business card and identifying Mr. Roebuck as the subject of the investigation. Finally, the agent routinely sent correspondence in envelopes with a return address bearing the words "Criminal Investigation Division."

On these similar facts, the Court awarded summary judgment for the United States, holding that the disclosures were authorized by Section 6103(k)(6). Citing the regulation quoted above, the court spoke to the necessity of disclosures. Necessity.... must be determined by the particular circumstances
surrounding the disclosures in question. In the case at bar, Special Agent Taggart could not have otherwise reasonably obtained the information sought without impairing the proper performance of her official duties. ...Special Agent Taggart indirectly informed the parties of the nature of the investigation as a service, in order to ensure that the parties knew who she was and what she was doing. Indeed, responding to a similar scenario in Fostvedt v. United States, 824 F.Supp. 978,983 (D. Colo. 1993), affd, 16 F.3d 416 (l0th Cir. 1994), that court noted that "no investigation could ever proceed without disclosure of such minimal 'nonsensitive' facts as the taxpayer's name, tax number, and the reason for the letter of inquiry." Id., 1999 WL 501003 at *2.

This court established the rule that special agents -- when contacting third parties for specific information -- can disclose who they are, the fact that they are conducting an investigation and the taxpayer's name who they are investigating as necessary disclosures of return information.

The Roebuck court went on to explain the dangers that would likely occur if an agent did not make these necessary disclosures. For example, if the agent did not identify the taxpayer under investigation, third parties might erroneously assume that they were under investigation. More significantly, the Service's refusal to identify the "nature of its inquiries, would be remarkably similar to the very type of 'intolerable' and 'widespread' government intrusion" that the Section 6103 amendments of 1976 were enacted to prevent. Id., 1999 WL 501003, at *4. Indeed, the court noted, had Special Agent Taggart not identified herself, she might have faced misrepresentation charges, and the government might have had the evidence excluded in the criminal trial. See id. (citing United States v. Tweel, 550 F.2d 297 (5th Cir. 1977)).

This case is identical to Roebuck. The IRS policy and procedure in effect at the time Special Agent Burgess made these authorized disclosures required that "Criminal Investigation" be inserted on line two of the summonses. (Undisputed Facts 22; Burgess Decl. 25, Exs. 10- 11.) IRS policy and procedure require that a special agent identify herself as a special agent from IRS Criminal Investigation and inform a third party to whom she is talking that she is conducting an investigation of the taxpayer. (Undisputed Facts 18; Burgess Decl. 21, Ex. 9.) IRS policy and procedure made it necessary for Special Agent Burgess to make the disclosures that Dean asserts were illegal.

In conclusion, it was reasonable for special agent Burgess to seek information from the third parties, if not required, and it was necessary for her to introduce herself to third party witnesses as an agent from IRS Criminal Investigation, identify the taxpayer under investigation and describe the nature of the official inquiry she was conducting. As such, all of the disclosures that Dean complains of were authorized by Section 6103(k)(6), and the defendants are entitled to judgment as a matter of law.

II. IN THE ALTERNATIVE, THE DISCLOSURES OF DEAN'S RETURN
INFORMATION WERE MADE PURSUANT TO A GOOD FAITH INTERPRETATION OF SECTION 6103.

Section 7431(b ) provides that a taxpayer may not recover damages for any disclosure that "results from a good faith, but erroneous, interpretation of section 6103." This exception is considered under an objective standard of whether an agent's conduct "violates clearly established statutory or constitutional rights of which a reasonable person would have known. "Comyns, 155 F. Supp. 2d at 1349 (citations omitted) (quoting Huckaby v. United States, 794 F.2d 1041, 1048 (5th Cir.1986)). The Court should examine whether the agent "followed the procedures and rules that are found in the IRS's Special Agent Handbook" Id. Only those procedures directly applying to the disclosures at issue are relevant. For example, procedures and rules concerning circular
.letters or other non-discriminatory contacts should be disregarded. Id. For instance, the portion of the Handbook for Special Agents cited by Dean in his complaint pertains to circular letters and should be disregarded. (Compl. 23.)
The Eleventh Circuit has had the opportunity to apply this good faith exception under its own methodology in the Comyns case. The facts of the Comyns case are very similar to the facts before this Court and provide a compelling basis for finding that Special Agent Burgess' alleged unauthorized disclosures were made in good faith.

In Comyns, the written disclosures at issue concerned Summonses issued by special agents compelling the disclosure of documents related to the plaintiff, and letters accompanying the summonses and follow up letters. Some of the letters were written on IRS/Department of Treasury letterhead containing "Criminal Investigation Division", but others were not. There were also other alleged illegal disclosures that occurred when the agents personally contacted third parties during their criminal investigation. During these personal contacts, the agents produced their business cards identifying themselves from the Criminal Investigation Division and disclosed to the third parties that they were investigating the plaintiff. See id., 155 F. Supp. 2d at 1346-47. The district court found, and the Eleventh Circuit affirmed, that all of these disclosures were made in good faith.

In coming to this conclusion the court adopted a two prong analysis: "1) the agent or agents who disclosed tax return information in violation of §6103 followed the relevant agency regulations and/or manuals, and 2) the regulations and/or manuals followed by those agents constituted a reasonable interpretation of the law." Id. at 1350. In applying this two pronged test to Special Agent Burgess' actions, it is without dispute that she followed the policies and
procedures of the IRS, and those policies and procedures are a reasonable interpretation of Section 6103 as a matter of law.

A. The Written Disclosures.

Dean asserts that issuing summonses that indicated that they are sent from the Criminal Investigation Division are, in themselves, unlawful disclosures in violation of Section 6103. (Undisputed Facts 24.) But Dean could not be more wrong. None of the statutes, regulations, manuals, handbooks or otherwise prohibit a special agent from including "Criminal Investigation", "Criminal Investigation Division" or "CI” on summonses. Quite to the contrary, IRS regulation, policy, and procedure requires that "Criminal Investigation" be inserted on all summonses. Indeed, the very nature of the summmons' form on its face requires that the issuer of the summmons provide the Division from which is was issued on line two. (See Compl., Exs. A- C.)

The Service issued a memorandum dated March 5, 2001 advising its special agents that they should insert Criminal Division as the issuing division on line two of the summonses. The IRS came to this decision based upon its analysis of the law and relevant statutes. (Undisputed Fact 25.) The IRS then reconfirmed this position in a subsequent memorandum dated December 3, 2002. (Id.) The policy set forth in these two memorandum was the policy in effect when Special Agent Burgess issued the summonses in connection with the Dean investigation. As Special Agent Burgess is a special agent with Criminal Investigation, she filled out the summonses in accordance with this policy by inserting "Criminal Investigation" on line two.

The second type of written disclosure involves the envelopes in which the summonses were sent. On the envelope it is alleged that the return address contained "Criminal Investigation", "CI” or some other derivation thereof. (Compl. 9; Undisputed Facts 23.) The disclosure of criminal investigation on the envelopes is an authorized disclosure just like the disclosures made on line two of the summonses. These are the envelopes provided by the Service for mailing official correspondence. Using official envelopes to send summonses also apprises the recipient as to the nature of its contents, protects the correspondence from being summarily discarded, and ensure that the mail is timely handled. Special Agent Burgess believed that it was necessary to use the Service's official envelopes when mailing the summonses issued to the third parties. (Id.) The envelopes should not be treated any different than the summonses because the type of disclosure is the same -- the disclosure is made to the same third parties and the summonses were in these very envelopes. The Roebuck court granted summary judgment for the defendant when this type of disclosure was at issue. Roebuck, 1999 WL 501003, at *1,4; see also Comyns, 155 F. Supp. 2d at 1346, 1352 (similarly granting summary judgment when "Criminal Investigation Division" appeared on official letterhead).

Applying the Eleventh Circuit's precedent in Comyns to the facts at hand mandates the conclusion that Special Agent Burgess' writing "Criminal Investigation Division" on the summonses and envelopes was made in reliance on IRS policy and procedure, and the IRS policy and procedure is a reasonable interpretation of the law. Summary Judgment must be granted for the defendants on the written disclosures.

2. The Oral Disclosures.

Dean also alleges that Special Agent Burgess illegally disclosed that she was from IRS Criminal Investigation conducting an investigation of Dean when speaking with third parties either in person or by telephone. (Undisputed Fact 19.) Special Agent Burgess confirms that when she spoke with third parties whether by telephone or in person it is her standard practice to do the following: