1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WILLIAM E. POWELL, Plaintiff, v. Civil Action No. 17-278 (JEB) INTERNAL REVENUE SERVICE
Defendant.

MEMORANDUM OPINION Mindful of the oft-quoted advice to uncover a scandal — “follow the money” — pro se Plaintiff William E. Powell has been on a long quest to obtain tax information related to his late father and grandfather, their tru sts and estates, and two famil y printing businesses. Suspecting a possible breach of fiduciary dut y by the trustees, he has sent countless Privacy Act and Freedom of Information Act requests to D efendant Internal Revenue Servi ce. Although the Service contends that it has released all responsive records to which P laintiff is entitled, he insists that it is unlawfully withholding documents in violation of the Privacy Act and FOIA. Defendant now moves to dismiss part of Powell’ s claims and asks for summary j udgment on the remainder. Largely agreeing, the Court wil l grant in part and deny in part the Motion.
I. Background A. Factual Background Plaintiff’s grandfather, Andrew P owell, was a prominent printer “who parlayed a small printing business into one of the f irst African-American [p]rin ting [c]ompanies” in Detroit. See Second Amended Complaint, ¶¶ 61- 63. The Court presumes that th is was the Andrew Powell Printing Company. Upon his deat h in 1987, Plaintiff’s father — William A. Powell — inherited2 the business and incorporated it as the Powell Printing Company . Id., ¶¶ 59, 63-65. Plaintiff became an “[a]uthorized [i]ndivi dual” for the company after his father’s death, and he alleges that he is the beneficiary and he ir of his fathe r’s estate. Id ., ¶¶ 44-45. Both father and grandfather additionally had a t rust, which lists Powell as a b eneficiary. For more than half a decade, Plaintiff has sought tax information on the elder Powel ls and their entities, believing that the trustees may have breached their fiduciary duty. See Powel l v. IRS, 255 F. Supp. 3d 33 (D.D.C. 2017); Powell v . IRS, No. 15-11033, 2016 WL 7473446 (E. D. Mich. Dec. 29, 2016); Powell v. IRS, No. 15-11616, 2016 WL 5539777 (E.D. Mich. Sept. 30, 2016); Powell v. IRS, No. 14-12626, 2015 WL 4617182 (E.D. Mich. July 31, 2015). As relevant here, in 2013, Plaintiff submitted forms to the IRS requesting the Powell Printing Company’s corporate tax returns for 1989-1991. See SA C, ¶¶ 73-79, 104-06. Shortly thereafter, the Service sen t him the 1990 and 1991 tax returns as well as a Business Master File Transcript-Complete, which lis ts all tax returns and documents filed on behalf of the company. See SAC, Exhs. J, K. In June and September 2017, Plaintiff submitted more Privacy Ac t and FOIA requests for various tax records for himself , his father and grandfather, th e two printing companies, the William A. Powell Estate, the William A. Powell Trust, and the Andrew Powell Trust. See MTD, Exhs. A-H.
B. Procedural History On February 13, 2017, Plaintiff file d the initial Complaint in this suit, originally seeking relief under a criminal statu te and 26 U.S.C. § 6103, which man dates personal-record disclosure. See ECF No. 1. Because neither ground provides for a private r ight of action, Defendant moved to dismiss. See ECF No. 8. Powe ll swiftly responded with his First Amended Complaint, which3 alleged a Privacy Act viol ation. See ECF No. 11. On July 3, h e moved for leave to file a Second Amended Complaint to add FOIA and Privacy Act claims related to his June requests, which the Court granted. See ECF No. 16; Minute Order of July 20, 2017. On October 23, he again sought supplementation, this time to tac k on his September record requ ests to this suit, and he was again permitted to do so. See ECF No. 26; Minute Order of Oct. 30, 2 017. The Court treats these latter two pleadings as supplem enting, rather than superseding, the First Amended Complaint, and it will thus consider the all egations in all three as prope rly pled. The Government has now filed a Motion to Dismiss or for Summary Judgment, asserting th at all of his claims fail because the Court lacks jurisdiction t o hear them, they are moot, or th ey are deficient as a matter of law.
II. Legal Standard In evaluating a motion to dismiss , the Court must “treat the co mplaint’s factual allegations as true and must gran t plaintiff the benefit of all inferences that can be derived from the facts alleged.” Sparr ow v. United Air Lines, 216 F.3d 1111 , 1113 (D.C. Cir. 2000) (citation and internal quotation marks omitted); see also Ashcroft v. Iqb al, 556 U.S. 662, 678 (2009). The Court need not accept as true, however, “a legal conclusion cou ched as a factual allegation,” nor an inference unsupported by the facts set forth in the Complain t. Trudeau v. Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir . 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). Under Federal Rule of Civil Pro cedure 12(b)(1), a plaintiff bea rs the burden of proving that the Court has subject-ma tter jurisdiction to hear his clai ms. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). A court also has an “affir mative obligation to ensure that it is acting within the scope of its jurisdictional authority.” G rand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001). For t his reason, “‘the [p]laintiff’s4 factual allegations in the complaint . . . will bear closer scr utiny in resolving a 12(b)(1) motion’ than in resolving a 12(b)(6) moti on for failure to state a clai m.” Id. at 13-14 (quoting 5A Charles A. Wright & Arthur R. Miller, Fed eral Practice and Procedure § 1350 (2d ed. 1987) (alteration in original)). Additi onally, unlike with a motion to dismiss unde r Rule 12(b)(6), the Court “may consider materials outside the pleadings in deciding whether to grant a motion to dismiss for lack of jurisdiction.” Jerome Stevens Pharm. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005); see also Venetian Casino Resort, LLC v. EEOC, 409 F.3d 359, 366 (D.C. Ci r. 2005). Summary judgment, by contrast, may be granted if “the movant sh ows that there is no genuine dispute as to any materia l fact and the movant is entit led to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A ge nuine issue of material fact is one that would change the outcome of the litigation. S ee Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986) (“Only disputes over facts that might a ffect the outcome of the suit u nder the governing law will properly preclude the entry of s ummary judgment.”). In the eve nt of conflicting evidence on a material issue, the Court is to c onstrue the conflicting eviden ce in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 10 86, 1087 (D.C. Cir. 2006). Factual assertions in the movi ng party’s affidavits or declarat ions may be accepted as true unless the opposing party submits his ow n affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly , 963 F.2d 453, 456-57 (D.C. Cir. 1992)

. “FOIA cases typically and appropr iately are decided on motions for summary judgment.” Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S. Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). I n FOIA cases, the agency bears the ultimate burden of proof to demo nstrate the adequacy of its search and that it properly withheld any documents. See Def . of Wildlife v. U.S. Border Pa trol, 623 F. Supp. 2d 83, 915 (D.D.C. 2009). The Court may gran t summary judgment based sole ly on information provided in an agency’s affidavits or d eclarations when they “describe t he documents and the justifications for nondisclosure w ith reasonably specific detai l, demonstrate that the information withheld logically falls withi n the claimed exemption, and are not controverted by either contrary evidence in the record nor by evi dence of agency bad faith.” M ilitary Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Suc h affidavits or declara tions are “accorded a presumption of good faith, which cannot be r ebutted by ‘purely speculative claims about the existence and discoverability of other documen ts.’” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. Analysis For the sake of clarity, the Cour t divides Plaintiff’s requests into two batches: those from his First Amended Complaint, whi ch only alleges a violation of the Privacy Act, and those included in his Second Amended Com plaint and Supplemental Compl aint, which allege a violation of the Privacy Act and F OIA. The Government has help fully provided a chart summarizing the requests, see MT D at 2-5, which the Court repro duces below with m inor edits. First Amended Complaint: Individual/Entity Record Powell Printing Co. 1990 1120S Corporate Tax Return and attachments; 1991 1120S Corporate Tax Return and attachments; 1992 1120S Corporate Tax Return and attachments; 1993 1120S Corporate Tax Return and attachments; All Powell Printing Co. tax documents with DLN 17953- 494-00101-0; Annual Tape Index and Name of Director; Documents related to TEFRA IRS administrative and judicial proceedings; 1992 Address changes with DLN 17963-675-00110-2; 2006 Address changes with DLN 38963-955-77766-6; 2012 Address changes with DLN 17963-731-02171-2.6 Andrew Powell Printing Co. 1990-2016 Corporate Tax Returns; All Andrew Powell Printing Co. tax documents with DLN 17953-494-00101-0; Annual Tape Index and Name of Director; Documents related to TEFRA IRS administrative and judicial proceedings. William E. Powell (Plaintiff) 1990 Powell Printing Co. shareholder K-1; 1991 Powell Printing Co. shareholder K-1; 1992 Powell Printing Co. shareholder K-1; 1993 Powell Printing Co. shareholder K-1; 1990-2016 Andrew Powell Printing Co. shareholder K-1s. William A. Powell (Plaintiff’s father) 1990 Powell Printing Co. shareholder K-1 1991 Powell Printing Co. shareholder K-1; 1992 Powell Printing Co. shareholder K-1; 1993 Powell Printing Co. shareholder K-1; 1990-2016 Andrew Powell Printing Co. shareholder K-1s. Andrew Powell (Plaintiff’s grandfather) 1990 Powell Printing Co. shareholder K-1 1991 Powell Printing Co. shareholder K-1; 1992 Powell Printing Co. shareholder K-1; 1993 Powell Printing Co. shareholder K-1; 1990-2016 Andrew Powell Printing Co. shareholder K-1s. Estate of William A. Powell 1993 706 Federal Estate Tax Return and attachments

Second Amended Complaint and Supplement:

RECORD TYPE TAXPAYER, TAX YEARS Address changes Andrew Powell, 1985-2017 Andrew Powel Estate, 1987-1999 Andrew Powell Trust, 1987-1998 Andrew Powell Printing Co., 1987-2017 Powell Printing Co., 1987-1994 William A. Powell, 1987-2017 William A. Powell Estate, 1992-2006 William E. Powell, 1987-2017 Foreign Information System tran scripts Andrew Powell, 1987-1996 William A. Powell, 1987-1994 William E. Powell, 1987-20177 Non-Master File transcrip ts Andrew Powell, 1985-2017 Andrew Powel Estate, 1987-1999 Andrew Powell Trust, 1992-2006 Andrew Powell Printing Co., 1985-2017 Powell Printing Co., 1987-1994 William A. Powell, 1987-2017 William A. Powell Estate, 1992-2006 William A. Powell Trust William E. Powell, 1987-2017 Form 1042S Indices Powell Printing Co., 1987-1994 William A. Powell Estate, 1993-1995 Andrew Powell Printing Co., 1987-1994 K-1 Information (for William E. Pow ell) Andrew Powell Trust, 198 7-1998 William A. Powell Trust, 1992-2006 William A. Powell Estate, 1992-2006

Form 3520 Estate of Wi lliam A. Powell, 1993-1994 SUMRY records William E. Powell, 1995-2017 Andrew Powell Printing Co., 1995-2017 Andrew Powell Estate, 1987-1999 Andrew Powell, 1995-2017 TXMOD transcripts Powell Printing Co., 1987-1994 William A. Powell Estate, 1992-2006 William A. Powell Trust, 1992-2006 William E. Powell, 1987-2017 Andrew Powell, 1987-1994 Andrew Powel Estate, 1987-1995 Andrew Powell Trust, 1992-2006 Andrew Powell Printing Co., 1987-2017

Defendant believes that the Cour t does not have jurisdiction to entertain Plaintiff’s requests in the First Amended Com plaint and that it is entitled to summary judgment as to those in the Second Amended and Supplem ental Complaints. The Court a ddresses each in turn.
A. First Amended Complaint Powell’s First Amended Complain t asserts a Privacy Act claim fo r the records in the first chart. The Service, however, cont ends that it never received a ny such requests from Plaintiff and thus was under no obligation to search for records.8 The Privacy Act provides a cause of action against an agency th at refuses to comply with an individual’s request for hi s records. See 5 U.S.C. § 552a(g )(1)(B). Before bringing such a claim in court, however, a plain tiff must submit a “Privacy Act inquiry [that is] clearly marked ‘request for notification and access’ and ‘contain[s] a stateme nt that it is being made under the provisions of’ [the statu te].” Powell, 255 F. Supp. 3d at 41 ( quoting 31 C.F.R. § 1.26 Pt. 1, Subpt. C, App. B(3)(b)(iii)). Failure to do so is cause for di smissal because exhaustion under the Privacy Act is jurisdictional. See Stein v. SEC, 266 F. Supp. 3d 326, 336 (D.D.C. 2017); Powell, 255 F. Supp. 3d at 42 (collecting cases). The Court finds that dismissal of all but one of the Privacy Ac t claims in the First Amended Complaint is warranted. While it must accept as true a ll of the facts set forth there as well as in his Opposition, see Brown v. Whole Foods Mkt. Grp., Inc., 789 F.3d 146, 152 (D.C. Cir. 2015), and “detailed factual allegations are not necessary ” to survive a motion to dismiss, Powell must nevertheless provide enough facts “to raise a rightof relief above the speculative level.” Bell Atl. Cor p. v. Twombly, 550 U.S. 544, 545-555 (200 7). Even accepting all of Plaintiff’s allegations as true, he has n ot actually pled that he submitted requests for most of t he information that he seeks. Although he is pro se , Powell is on notice of the Privacy Act’s exha ustion requirements as the Cour t has previously dismissed a case of his for the same reason. See Powell, 255 F. Supp. 3d at 42. Here, he cursorily alleges in the First Amended Complaint that he “mailed a FOIA and PA Request w ith supporting documents” and Defendant never responded, s ee Opp. at 4, yet such a conclu sory allegation is not enough to avoid dismissal. The only specifi c requests he mentions in the First Amended Complaint or Opposition are for corporate tax returns for the Powell Printin g Company for 1989-1991. See FAC, ¶¶ 73-79, 104-106. True, his pray er for relief in that fi ling asks that the Court order the9 IRS to produce other document s, but it contains no allegation t hat he ever submitted a request for them. He concedes, moreover, that he received the tax returns for 1990 and 1991, id., ¶¶ 118- 19, rendering those claims moot . For the 1989 tax return, Plai ntiff alleges that he requested it but did not ask for this document t o be produced in his prayer for relief. See FAC, ¶¶ 258- 308. The Court nonetheless will not dism iss the claim resting on that do cument because of such technicality. See Doe v. D ep’t of Justice, 753 F.2d 1092, 1104 (D.C. Cir. 1985) (district court should not dismiss “for failure t o seek the technically appropr iate remedy when the availability of some relief is readily appare nt on the face of the complaint ”). Plaintiff should be aware, however , that his factual allegation s alone will not be enough if the case proceeds to the summary-judgment stage; he will, rathe r, be required to show a “genuine dispute as to the agency’s r eceipt of the . . . request in ligh t of the agency’s decl aration that it had no record of receiving the reque st.” Pinson v. Dep’t of Justic e, 69 F. Supp. 3d 108, 115 (D.D.C. 2014). In sum, the only item of the First Amended Complaint to survive is the alleged request for the 1989 return for the Powell Printing Company.
B. Second Amended and Supplemental Complaints The second group of records compr ises various tax information f or Andrew Powell, the Andrew Powell Estate, the Andrew Powell Trust, the Andrew Powel l Printing Company, the Powell Printing Company, William A . Powell, the William A. Powe ll Estate, the William A. Powell Trust, and Plaintiff himself (William E. Powell). The C ourt first notes that the Service properly construed the request under FOIA, as it would yield Pl aintiff the same or greater access to the records sought. See M TD at 11 n.4 (citing Murray v. Shu lkin, 273 F. Supp. 3d 87, 93 (D.D.C. 2017)); see also Thomp son v. Dep’t of Justice, 146 F. S upp. 3d 72, 82 (D.D.C. 2015) (adequacy of search for FOIA a nd Privacy Act analyzed under sam e standard when searches10 would be coextensive); Whitaker v. CIA, 31 F. Supp. 3d 23, 47-4 8 (D.D.C. 2014) (relatives may not exercise Privacy Act rights on behalf of deceased individua ls). Defendant c ontends that it released all responsive records to which Powell was entitled. The Court, then, must determine first whether Plaintiff was aut horized to receive the documents he requested and, if so, whether the Government’s search was adequate. Authorized Access For good reason, not just anyone can obtain the tax information of another person or corporation. See Elec. Priv. Info. Ctr. v. IRS, 261 F. Supp. 3 d 1, 6 (D.D.C. 2017) (dismissing FOIA request for president’s tax returns). Tax returns and acc ompanying information are “confidential” and can only be disclosed to those authorized by statute and regulation. See 26 U.S.C. §§ 6103(a), (e). Before the Service can release an indi vidual’s tax information, the requester must “establish [his] identity and right to access su ch records” by “provid[ing] adequate proof of the legal re lationship under which [he] asser t[s] the right to access the requested records.” 26 C.F.R. § 601.702(c)(5)(iii)(B). Until the requester does so, the IRS “is not obligated to process the requ est,” and if he “nonetheless f iles suit, []he is said to have failed to exhaust [his] administrative remedies.” Kalu v. IRS, 2015 W L 4077756, at *4 (D.D.C. July 1, 2015). A plaintiff bears the burden of showing entitlement to records. Goldstein v. IRS, 279 F. Supp. 3d 170, 180 (D.D.C. 2017). Powell submitted copies of the death certificates of his father and grandfather, the William A. Powell Trust, the Andrew Powell Trust, and his own s ocial security card. See SAC, ¶¶ 193-95; Def. Statement of Undi sputed Material Facts, ¶ 16. The Service does not dispute that this information is sufficient for Plaintiff to obtain the reco rds of himself, his father, the Powell Printing Company, the William A. Powell Estate, the William A. Powell Trust, and the Andrew11 Powell Trust, but it contests that the submitted documents esta blish that he is authorized to receive records pertaining to A ndrew Powell, the Andrew Powell Printing Company, or the Andrew Powell Estate. The Court agrees. First, when seeking tax records for a deceased individual or an estate, a requester must show that he is the “administrato r, executor, or trustee of [th e] estate” or an “heir at law, next of kin, or beneficiary under the will, of such decedent.” 26 U.S. C. §§ 6103(e)(1)(E) (i)-(ii). None of Plaintiff’s submitted documents establishes such a relations hip. Unlike the William A. Powell Trust, which explicitly states that Plaintiff is entitled to 35 % “of the trust property and estate,” SAC, Exh. W4, the Andrew Powell T rust agreement states that Pla intiff is entitled only to a part of the trust. Id., Exh. W9 (Andrew Powell Trust Agreement) at 5 (stating that upon William A. Powell’s death, corpus of the tr ust “shall be divided into as m any equal shares as William shall leave then living children and deceased children leaving then l iving issue”). Trusts and estates are different legal entities, a nd Powell’s rights under the tru st do not automatically make him a beneficiary of the estate unde r the will, as required by statut e. As to the Andrew Powell Printi ng Company, Plaintiff must show t hat he is: 1) “designated [for access] by resolution of its board of director s”; 2) “an officer or employee” who has been designated access by a “principal officer and attested to by the secretary or other officer”; 3) a “bona fide share holder of record owning 1 percen t or more of the outstanding stock of such corporation”; 4) for an S corporation, that he was “a s hareholder during any part of the period covered by such return during which an election . . . wa s in effect”; or 5) for dissolved corporations, that he has been “authorized by app licable [s]tat e law to act for the corporation” or found by the Secretary “to have a m aterial interest which will be affected by” the information. See 26 U.S.C. § 6103(e)(1)(D).12 Powell does not allege that he submitted any of the forms of pr oof required by statute. He, instead, states that his reco rds list him as a “Member/Shar eholder of the Parent Company (‘Andrew Powell Prin ting Company’), subsid iaries and other busi ness entities.” FAC, ¶¶ 244- 46. The Court has reviewed this document and is unable to loca te such an indication. Even if that information did appear on the transcript, it would still n ot satisfy the requirements for disclosure because he must show that, as a shareholder, he owns more than 1% of the outstanding stock or that (if an S corporation) he was a shareh older during the relevant period. See 26 U.S.C. §§ 6103(e)(1)(D)(iii), (iv). Plaintiff also cont ends that the company “would have Members and the Andrew Powell Printing Company would have to pr ovide an accurate accounting of the LLC’s ownership and each Member’s distributiv e share of profits and losses on state and federal tax retur ns.” Opp. at 7. Construed gener ously, the Court takes Plaintiff’s argument to be that the IRS woul d be able to see whether he mee ts the criteria for disclosure because it could look at the retu rns and determine how much of a share Powell inherited through his father. Even if that were true, Powell, not the Service, b ears the burden of establishing access to records. See Goldst ein, 279 F. Supp. 3d at 180. To the ext ent, moreover, that he attempts to argue that as a shareholder of Powell Printing Company he is al so a shareholder of the Andrew Powell Printing Company and thus e ntitled to access, Plaintiff has not established that these two companies are the same legal en tities such that being a shareho lder of one would mean he was a shareholder of the other. The Court thus agrees with the Gover nment that Powell has only established authori zation to obtain tax information for the Pow ell Printing Company, William A. Powell, the William A. Powell Trust, the William A. Powell Esta te, the Andrew P owell Trust, and himself. The appropriateness of Defendant’s search, theref ore, will be limited to those entities and individuals.13 Adequacy of the Search Powell next challenges the Service’s search for several categor ies of his requested records. “An agency fulfills its obligations under FOIA if it can demonstrate beyond material doubt that its search was ‘reason ably calculated to uncover all relevant documents.’” ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. Dep’t of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994). “[T]he issue to be resolved is not wheth er there might exist any other documents possibly responsive to the request, but rather whethe r the search for those documents was adequate.” Weisberg v. Dep’t of Justice, 745 F.2d 1476, 14 85 (D.C. Cir. 1984). The adequacy of an agency’s search for documents requested unde r FOIA “is judged by a standard of reasonableness and de pends, not surprisingly, upon the facts of each case.” Id. To meet its burden, the agency may submit affidavits or declaratio ns that explain the scope and method of its search “in reasonable detail.” Perry v. Block, 6 84 F.2d 121, 127 (D.C. Cir. 1982). The affidavits or declarations s hould “set[] forth the search t erms and the type of search performed, and aver[] that all files likely to contain responsi ve materials (if such records exist) were searched.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Absent contrary evidence, such affidav its or declarations are sufficie nt to show that an agency complied with FOIA. See Perry, 684 F.2d at127. “If, however, the reco rd leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.” Truitt, 897 F.2d
at 542. The Government supported its Motion here with the Declaration o f William White, a Government Information Specialist in the IRS Office of Privacy, Government Liaison and Disclosure. See MTD, Exh. 10, ¶ 1. Based on this affidavit, D efendant contends that it has14 performed an adequate search and released all responsive record s. The Court looks at each record type in turn. Address Changes Powell requested all address changes for himself, his father, h is grandfather, their respective estates, the Andrew Powell Trust, the Andrew Powell Printing Company, and the Powell Printing Company for several years beginning in 1987. I n response, the IRS used an application called Information Data Retrieval System (IDRS), wh ich “store[s] much of the data associated with taxpayer accounts,” and entered the relevant ta xpayer identification number “to search for address updates.” White Decl., ¶¶ 10, 12. Defendan t avers that this search “retrieves all current and prior addresses sa ved in the Master File,” and IDRS is the only “IRS system in which the address changes requested by Mr. Powell are likely to be located.” Id., ¶¶ 13, 16. It then released to Plaintiff the “transcripts of the addresses as sociated with the taxpayer identification numbers for Andrew Powell, the Andrew Powell Est ate, the Andrew Powell Printing Company, the Andrew Pow ell Trust, the Powell Printing Company, the William A. Powell Estate, and William E. Powell.” Id., ¶ 15; see also Opp ., Exh. A. It did not find any responsive records for Plaint iff’s father. See White Decl., ¶ 16. Powell does not challenge the Gove rnment’s description of the r elevant systems or suggest that the search was inade quate; rather, he only asserts that it “did not provide” the address changes for all of the r equested dates. See Opp. at 4. The law in this Circuit is clear, however, that “the failure of an agency to turn up” specific re cords “does not alone render a search inadequate.” Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). The “adequacy of a FOIA search is generally determined not by t he fruits of the search, but by15 the appropriateness of the met hods used to carry out the search .” Id. The Service’s described search was reasonably tailored to produce all address changes i n the system. Foreign Information System Transcripts Plaintiff also requested the For eign Information System (Transc ript/Tax Return) for various years for himself and hi s father. According to the IRS , the FIS “is a computer system that was used to track data” submitted by foreign-owned corpora tions on Form 5472. See White Decl., ¶ 18. The system was rep laced by a new electronic one i n 2007 — before corporations filed tax returns for that year — meaning there would be no rec ords for any corporation after 2006. As to years prior to that, the Government avers that “to the extent they ever existed,” it is unable to search for such record s because they are “no longer a ccessible.” Id., ¶ 22. Powell balks at the suggestion that “no one within one of the largest collection agencies (‘IRS’) in the world does not have any form of computer support or technology information (‘IT’) support to advise Defendant of how to retrieve information from an obsolet e system.” Opp. at 12. He asserts that there should be a “hard copy, microfilm, microfich e, or other electronic media forms” available to access the requested documents. Id. “[P]u rely speculative claims about the . . . discoverability of other documents,” however, is insuffic ient to overcome the “good faith presumption” accorded agency affidavits in FOIA cases. See Blo eser v. Dep’t of Justice, 811 F. Supp. 2d 316, 320 (D.D.C. 2011) (quoting Brown v. Dep’t of Just ice, 742 F. Supp. 2d 126, 130 (D.D.C. 2010)). The Court furthe r notes that, to the extent wh at Powell desires is Form 5472 — which is used by corporations w ith 25% or more foreign ownershi p — if any existed, they would be appended to an individu al tax return. See White Decl. , ¶ 22 n.3. His request for the FIS transcript, see MTD, Exh. C, however, is only available in the now-defunct FIS.16 Non-Master File Transcripts Plaintiff also requested offici al and automated Non-Master File (NMF) transcripts for several years for himself as we ll as the Andrew Powell Trust, t he Powell Printing Company, William A. Powell, the William A. Powell Estate, and the Willia m A. Powell Trust. See MTD, Exh. E. The IRS has two types of tax filing accounts: Master F ile (MF) and NMF. The MF includes the individual, busine ss, and employee-plans master fi les as well as any individualretirement-account file. “In addition to” those files, “there is also NMF,” which is “used to control returns or entities that are not available from the Mas ter File.” Internal Revenue Manual § 4.71.2(5). “NMF accounts are not posted on Master File” and are located “on the A[utomated]NMF system.” Id. §§ (5)-(6). To search for Plainti ff’s requested files, the IRS input the relevant taxpayer identification number, transcript type, a nd relevant time periods, but retrieved no responsive records. See White Decl., ¶¶ 28, 32. Plaintiff, again, does not dispute the adequacy of this search but instead argues that Defendant s hould have searched for Individual Master File transcrip ts and Business Master File Tra nscripts. The Internal Revenue Manual is clear, however, that t hose transcripts would not appe ar on an NMF. The Court is satisfied that the Service’s NMF search was adequate. Form 1042S Indices The IRS also searched for Form 1042S Indices for the Powell Pri nting Company and the William A. Powell Estate as per Plaintiff’s June 12 request. T o do so, it searched the Master File System in IDRS for the specific MFT code that corresponds to wh ether the taxpayer filed a 1042-S. See White Decl., ¶ 36. That code was not present on the transcripts for either the Powell Printing Company or the William A. Powell Estate. Id., ¶ 39. Powell only challenges this search to the extent it did not include records for the An drew Powell Printing Company, but,17 as discussed above, he has not shown that he is entitled to tho se records. The IRS, therefore, had no obligation to search for them.
K-1 Powell also requested K-1 information, which form is used to re port taxable events from entities including an estate or t rust, for himself from several of the entities stretching back to 1987. According to the Service, this information “would show u p on Mr. Powell’s transcripts” in IDRS if it exists, but that system only retains information returns (mandatory tax documents that businesses use to notify the IRS of reportable transaction s) for ten years. See White Decl., ¶¶ 41-42. Because the latest date for which Powell requested K -1 information was 2006, any records from the trust or estate would have been purged from ID RS in 2016 — one year before he submitted his request. Next, the Service manually searche d Plaintiff’s transcripts for the requested years “in case he perhaps had attached his Forms K-1 to his own returns.” Id., ¶ 43. It then sent a request to its long-term storage facility to locate any responsive file s. Id., ¶ 45. Personal tax returns, however, are destroyed after sev en years. Id., ¶ 46. In other words, if Plaintiff had a 2006 tax return, it would have been filed in 2007 and destroyed in 2014. Finally, Defendant “checked to see if the Andrew Powell Trust had filed a Form 1041,” which wo uld have had K-1 information attached, if applicable. Id., ¶ 47. The Trust only filed a Fo rm 1041 for 1996, but the IRS does not have a record of it because it would have been destroyed ar ound 2003. Id., ¶ 48. After realizing it did not search for K-1s from the William A. Powell Trust and the William A. Powell Estate, the Service conducted a supplemental search using the s ame method described above and did not locate any responsive records. See Reply, Attach. 1 (S upplemental Declaration of William White), ¶¶ 4-10.18 Plaintiff attempts to undercu t this seemingly thorough search w ith two arguments. First, he claims that he “requested the K-1s for William A. Powell, Wi lliam E. Powell, and Andrew Powell for the Powell Printing Company for the years of 1990 th rough 1993.” Opp. at 15. The only evidence in the record regar ding K-1 requests are those re ported by the William A. Powell Trust (1992-2006), the William A. Powell Estate (1992-2006), an d the Andrew Powell Trust (1987-1998) for which Plaintiff wa s the beneficiary. See MTD, Exh. B at 3. He has not provided any proof, therefore, that he requested K-1s for his f ather or grandfathe r, or for himself from 1990-1991 related to the William A. Powell Trust and Estat e. As Defendant seeks summary judgment on the claims at issue here, Powell must show some “genuine dispute as to the agency’s receipt of the . . . r equest in light of the agenc y’s declaration tha t it had no record of receiving the request.” Pinson, 69 F. Supp. 3d at 115. He has not done so. In any event, even if he had, these records would lik ely have been destroyed pursuant to the aforementioned retention policies. The Service averred, furthermore, that it searched f or his K-1 information as it related to the William A. Powell Trust, the William A. Powell Estate, a nd the Andrew Powell Trust for the requested years. See White Decl., ¶¶ 41-49; Suppl. White D ecl., ¶¶ 2-8. As described above, however, the requested records “no longer exist because [Plaint iff] is seeking information return data from prior to 10 years ago.” White Decl., ¶ 49; see also, Suppl. White Decl., ¶¶ 4-7. Powell next argues that the IRS should have been able to locate Form 706, a one-time submission by the executor of an est ate to determine the estate tax, for the William A. Powell Estate because such forms are retained for 75 years. The Servi ce avers that “searched for the Form 706 in 2015 as part of a court proceeding in Michigan and [was] unable to locate it.” Supp. White Decl., ¶ 9. Such a cur sory explanation is not a “r easonably detailed” description of the search because it does not “se t[] forth the search terms an d the type of search performed.”19 Oglesby, 920 F.2d at 68. Although the IRS alleges that it has a copy of the Estate Form 706, Powell seeks the original, whic h he says may have K-1 informati on attached. The Court is, accordingly, unable to grant the Government summary judgment on this score. It may renew its Motion with another supplemental declaration describing the sea rch terms and type of search performed for the original Form 706 for the William A. Powell E state.
IV. Conclusion For the reasons stated above, the Court will la rgely grant Defe ndant’s Motion. With the exception of the request for the Powell Printing Company’s 1989 tax return, the claims in Plaintiff’s First Amended Compl aint will be dismissed for failu re to exhaust. The Court will also grant the Government summary judgment on the claims in the Seco nd Amended and Supplemental Complaints, apart from the adequacy of the search for Plaintiff’s K-1 information as it relates to Form 706 from the William A. Powell Estate. A separate Order consistent with this Opinion will be issued this day. /s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 5, 2018