### The HONORABLE ORTRIE D. SMITH, United States District Judge 1 

### for the Western District of Missouri, sitting by designation. The Honorable Mark W. Bennett, United States District Judge 2 

### for the Northern District of Iowa. ___________ No. 96-1563

___________ Frank J. Taylor, * * Appellant, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. United States of America; * Internal Revenue Service, * * Appellees. *

___________ Submitted: December 11, 1996 Filed: February 10, 1997

___________ Before BOWMAN and HEANEY, Circuit Judges, and SMITH, District Judge. 1

___________ BOWMAN, Circuit Judge.

Fra nk J. Taylor appeals from the decision of the District Court 2 gran ting summary judgment to the United States on some of his claim s aga inst the Internal Revenue Service (IRS), and dismissing the rest fo r failure to state a claim. See Taylor v. United States IRS , 915 F. Supp. 1015 (N.D. Iowa 1996); Taylor v. United States IRS , 186 B.R. 441 (N.D. Iow a 1995). We affirm.

### Soon after Taylor filed his complaint, onApril 19, 1993, the 3 

### IRS moved to withdraw the reference of the case to the Bankruptcy Court so that the case could proceed in the District Court. Th e motion was granted on August 3 , 1993. See Taylor v. United States IRS , 186 B.R. 441, 444 (N.D. Iowa 1995). -2- I.

For tax y ears 1981 through 1988, Taylor did not timely file federal income tax returns, nor did he file state income tax returns. In 1987, he filed a petition in bankruptcy under Chapter 7 o f the Bankruptcy Code. In 1989, he was denied a discharge for various infr actions, including failing to fo llow court orders and to keep records, and transferring assets i n viol ationof the Bankruptcy Code. Five years later, the trustee ha d located only eighteen dollars in assets, so the bankruptcy court made no determinations as to creditors' claims. The case was dismissed on April 27, 1993.

In 1986 , 1987, and 1991, the IRS made three disclosures of writte n tax information concerning Taylor to the Iowa Department of Revenue an d Finance (IDORF), pursuant to specific written requests from the IDORF. Th e IRS had been investigating Taylor, but did not bring criminal charge s against him. The state of Iowa, however, following an investigation by th e IDORF that was based at least in part on the information it received from the IRS, filed criminal charges against Taylor for his failure to pay stat e taxes or file returns. Taylor was convicted.

On March 11, 1993, Taylor brought an adversary proceeding in th e Bankruptcy Court, cla iming violations of the Internal Revenue Code (IRC), the Privac y Act, and his alleged constitutional privacy rights. He also 3 asked the court to determine his federal tax liabilities for certain tax years. The court granted summary judgment for the United States on some of Taylor's claims an d dismissed the rest of his claims. Taylor appeals.

### Taylo r also makes a summary challenge to the scope of th e 4 

### mat erials the IRS disclosed, but he fails to identify wit h specificity which of the documents that were disclosed to th e IDORF do not fall within the rather broad definitions of "return" an d "return information," and why they do not. See 26 U.S.C. § 6103(b) (19 94) (defining return and return information). In addition t o the expansive definition of return found in § 6103(b)(1) , "§ 610 3(b)(2) contains an elaborate description of the sorts o f information related to returns that [the IRS] is compelled to keep confidential," Church of Scientology v. IRS , 484 U.S. 9, 1 5 (1987)--or is permitted to disclose pursuant to an exception. Taylor further argues that "th e District Court ruling totally fails to address the Fourth Amendment unreasonable search an d seizur e ramifications" of the disclosures, an issue that, h e contends, arises because the disclosures were made without a wa rrant and the IRS's investigation was criminal. Appellant' s Brief at 11. Taylor does not contend that he even made thi s argument in the District Court, but if he did, his brief's single -3- II.
We address first Taylor's arguments that the IRS wrongfully dis closed his tax i nformation to the IDORF in violation of federal statutes. Th e court granted summary judgment to the United States on those causes o f action, and we review de novo . Initially we note that any fact issue s Taylor asserts do not concern material facts, so we are faced only with th e question whether the United States is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

A.

Under the IRC, federal tax "[r]eturns and return information shal l be con fidential" and are not subject to disclosure under ordinar y cir cumstances. 26 U.S.C. § 6103(a) (1994). Certain exceptions obtain , however, including one that permits disclosure to state tax officials "upo n writ ten request by the head of" the state taxing authority, "for th e purpo se of, and only to the extent necessary in, the administration o f [state tax] laws." I d. § 6103(d)(1) (1994). Taylor asserts that federal officia ls disclosed his tax information without the requisite writte n request from the IDORF. 4

### sentence on this issue fails to make a legal argument that we may

consider in this appeal of his civil action against the IRS.
-4- Taylor contends that the written correspondence from the IDORF to the IRS sp ecifically requesting tax information on Taylor came too late , because the tenor of the correspondence proves that an oral discussion of protected tax information took place before the IRS received the written requests. The District Court granted summary judgment to the United State s
on the grounds that an Agreement on Coordination of Tax Administratio n (March 30, 1983) and three Federal-State Implementing Agreements (June 4, 1984; Oc tober 20, 1986; and May 7, 1990) between the IRS and the IDOR F constitute the necessary written request. We agree.

There is no indication in the text of the IRC's confidentiality and disc losure statute that Congress intended to require an individualize d request in order to satisfy the strictures of § 6103 relevant to disclosur e to state tax officials. What is required of the written statement is: (1) that the request be made "by the head of" the state agency charged under state law "with respo nsibility for the administration of State tax laws"; (2) that the request designate the individuals who are the representatives of the state taxing authority to receive the tax information; and (3) that the representatives n amed not be the chief executive officer of the state or any person who is not an employee of the taxing authority (nor certain other state employees described in the statute). Taylor does not clai m that the Agreement on Coordination and the Imple menting Agreements between the IRS and the IDORF do not meet the requirements of the statute

. Moreover, we have examined the portions of the a greements that the parties submitted in the record on appeal and we see not hing to suggest that these documents fail to satisfy the statutory requirements of § 6103(d). Ou r conclusion accords with those

### -5-

rea ched by two of our sister circuits. (The IRS has coordinating an d implementing agreemen ts with the taxing authorities of all fifty states.) See Long v. United St ates , 972 F.2d 1174, 1179 (10th Cir. 1992); Smith v. United States , 964 F.2d 630, 633 (7th Cir. 1992), cert. denied , 506 U.S. 1067 (1993).
Taylor argues that, if we allow the agreements at issue to operat e
as sta nding requests for disclosure of taxpayer information, we wil l "totally eviscerate[] Section 6103 as a statutory implementation of a righ t of privacy." Appella nt's Brief at 12. We disagree. The confidentiality of taxpaye r information is by no means absolute. The bulk of § 610 3 constitutes exception s to the general rule of non-disclosure. See Church of Scientology v. IRS , 484 U.S. 9, 15 (1987) ("S ubsections (c) through (o) of § 6103 set forth various exceptions to the general rule that returns an d return information are confidential and not to be disclosed. Thes e subsec tions provide that in some circumstances, and with specia l safeguards, returns a nd return information can be made available to . . . state tax officials . . . ."). Notwithstanding the need to prevent abusiv e disclosure of federal taxpayer information by th e IRS and others, Congress clearly recognized th e need for disclosure of such information in certain
care fullydelineated circumstances. Disclosure of individual taxpaye r information by the IR S to a state taxing authority via a standing written agreement that is carefully crafted to satisfy concerns for confidentialit y implements rather than "eviscerates" the will of Congress.

B.
Taylor also argues that the District Court erred in granting summary judgment to the United States on his claim that the disclosures to th e IDO RF violated the Privacy Act, 5 U.S.C. § 552a (1994). Section 552 a pro hibits federal agency disclosure of "any record" kept by that agenc y "unless disclosure of the record would

### -6-

be . . . for a routine use as defined in subsect ion (a)(7) of this section and de scribed under subsection (e)(4)(D) of this section." Id

. § 552a(b)(3). A "routine use" is defined as "the use of such record for
a purpose which is compatible with the purpose for which it was collected. " Id. § 552a(a)(7). Su bsection (e)(4)(D) requires the agency to publish in
a timely manner in the Federal Register a notice of "each routine use of the records contained in the system, including t he categories of users and the purpose of such use."
It is undisputed that the IRS publis hed the necessary notices in the Feder al Register for its "Individual Returns Files, Adjustments an d Miscellaneous Documents Files" records system and its "Examinatio n Adminis trative File" records system. See 50 Fed. Reg. 29,821, 29,85 7 (1985) ("Disclosure o f returns and return information may be made only as provided by 26 U.S.C. 6103."). Further, it is clear that the disclosure of federal taxpayer information collected for the purpose of federal tax administ rationto state tax officials for the purpose of state ta x administration is "use of [the] record for a pur pose . . . compatible with the purpose for which it was collected." 5 U.S. C. § 552a(a)(7). Taylor's argument that the IRS may disclose federal tax information only for th e purpose of federal ta x administration is unavailing. Under § 6103, which (as the Federal Register notice states) governs the "routine use" o f taxpayer information, "tax administration" includes "the administration , ma nagement, conduct, direction, and supervision of the execution an d application of the internal revenue laws or related statutes ( or equivalen t laws and statutes of a State )." 26 U.S.C. § 6103(b)(4)(A)(i) (1994 ) (emphasis added). As we have already discussed, the IRS's disclosures wer e in compliance with the restrictions set forth in § 6103(d).

We conclu de that the District Court did not err in granting summary judgment for the government on Taylor's Privacy Act claim.

### -7- III.

The claim s remaining in Taylor's lawsuit after the summary judgment moti on was granted were dismissed on motion of the United States fo r failu re to state a claim. We review de novo

. See Labickas v. Arkansa s State Univ. , 78 F.3d 333, 334 (8th Cir.) (per curiam), cert. denied , 117 S. Ct. 395 (1996).
Taylor argues that "Congress lacks the power to legislate Sectio n 6103," because the statute violates his "fundamental right to financia l privacy." Appellant's Brief at 8. He cites two cases for the proposition that "[t] he right to financial privacy is in fact deeply rooted in thi s Nation's history and tradition." Id. It is apparent that Taylo r misappr ehends the nature of the privacy right he invokes, despite th e District Court's thorough discussion of the distinctions between privacy
as it rela tes to the confidentiality of information and privacy as i t relates to personal autonomy. See Taylor , 915 F. Supp. at 1022. Taylor cites Moore v. City o f East Cleveland, Ohio , 431 U.S. 494 (1977), wherein the Supreme Court held, in a plurality opinion, that "choices concerning family living arrangements" are constitutionally protected. Moore , 43 1 U.S. at 49 9. Such constitutional protection for freedom of choice i n familyliving arrangements is unrelated to the right to privacy Taylo r asserts here. In the other case Taylor relies upon, this Court held there is no fundamental rig ht to give a newborn a surname of one's choice. See Henne v. Wright , 904 F.2d 1208, 1214 (8th Cir. 1990), cert. denied , 49 8 U.S. 1032 (1991). The opinion in Henne is inapposite, not only because th e Court found no such privacy right in the Constitution, but also because th e case, like Moore , concerned an asserted privacy right in the realm o f personal autonomy. Taylor's contention that "[t]he `liberty' right to mak e cert ain decisions does include a right to financial privacy which i s fundamental," Appellant's Brief at 8, thus prop oses a faulty relationship between the privacy rights of confidentiality an d autonomy; the "right" he asserts has nothing to

### -8-

do with, and is not a part of, the right to make certain decisions free of government interference.
The District Court's opinion discusses the issue of financial p rivacy at s ome length, concluding that, although financial privacy is not a fundamental right, citizens are entitled to some protection from governmen t disclosure of financial information. We agree, first, that Taylor has not asserted a fundamental right, and so any restriction that § 6103 may impos e
on Taylo r's "right to financial privacy" is not entitled to stric t scrutiny

. We further agree, employing the lower level of scrutin y applic able here, that the government has the requisite interest (ta x administration) and t hat § 6103 is sufficiently related to such interest, without unnecessarily infringing on any privacy rights Taylor may have in his tax information, to pass constitutional muster. See Taylor , 915 F

. Supp. at 1023-24.
Taylor also makes a facial challenge to § 6103, arguing that th e statute is unconstitutional because "it imperils the concept o f `federalism.'" Appellant's Brief at 9. Taylor contends that § 6103(d ) ope rates so that the federal government enhances the state's ability t o collect tax revenues, thus infringing on the state's sovereignty. Surely
no infringement on a state's sovereignty results from a federal statut e that gives states the option of requesting information that actually may assist them, and cannot impede them, in the enfo rcement of state tax laws, and thus in the opera tion of state government. Likewise, § 6103 does not permit, and certainly does not compel, federal and state officials t o "colla borate or conspire together to violate the rights of individua l citizens." Appellant 's Brief at 10. We conclude that Taylor's arguments based on federalism and state sovereignty are without merit.

### -9- IV.
Taylor ch allenges the District Court's decision to abstain in favor of an action in the Tax Court regarding the assessment of Taylor's ta x liabilities for certain years. Given that the Tax Court action was pendin g when Tayl or filed his motion and that a decision from the Tax Cour t apparently will be reviewable on appeal, and in the absence of any showing that the Tax Court is unable or unwilling to act appropriately, we cannot say the District Court abused its discretion in denying Taylor's motion.
Finally, Taylor contends that the Di strict Court erred in denying as futile his motion to amend his complaint to add a challenge to th e constitutionality of the Tax Court. We disagree. The law in this Circuit on the constitutional issue is well-settled. Se e Shenker v. Commissioner , 804 F.2d 109, 114 n.6 (8th Cir. 1986) (observing that courts, including th e Eighth Circuit, "have uniformly upheld the constitutionality of the Ta x Court," a nd citing cases), cert. denied , 481 U.S. 1068 (1987). We hol d that the District Cou rt did not abuse its discretion in denying as futile Taylor's motion to am end. See Ferguson v. Cape Girardeau County , 88 F.3d 647, 651 (8th Cir. 1996) (noting that permission to amend may be denie d "where amendment would be futile" and that denia l is reviewed for abuse of discretion).

V.
The judgment of the District Court is affirmed in all respects.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.