[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________
AUGUST 20, 2001
THOMAS K. KAHN
No. 01-11679 CLERK
Non-Argument Calendar
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U.S. Tax Ct. No. 10478-99
MARILYN F. NOWICKI,
Petitioner-Appellant,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
__________________________
Appeal from a Decision of the
United States Tax Court
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(August 20, 2001)
Before ANDERSON, Chief Judge, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
I. BACKGROUND
Marilyn Nowicki is a veterinarian who, through her professional corporation
known as Marilyn F. Nowicki, DVM, P.A., operated several incorporated animal
clinics in Broward County, Florida. Douglas Verhougstraete was her long-time
companion and was involved in her business, where he handled certain
administrative and financial matters.
Their personal relationship eventually ended, apparently not amicably.
Verhougstraete informed the Internal Revenue Service (“IRS”) that Nowicki’s
professional corporation had paid some of her personal living expenses, which it
deducted as business expenses but which she did not report as income. During the
course of the IRS investigation Nowicki produced cancelled corporate checks and
bank statements, among other records. At the IRS’ request, Verhougstraete
reviewed the checks to assist in differentiating between business and personal
expenses.
Based upon its investigation, the IRS determined that Nowicki realized
additional taxable income for the 1992 through 1994 taxable years in the form of
constructive dividends from her professional corporation and that she was liable
for accuracy-related additions to tax. Nowicki petitioned the tax court for a
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redetermination of the deficiencies, and on November 1, 2000, filed a motion in
that court to suppress all evidence obtained in violation of Internal Revenue Code
(“I.R.C.”) § 6103, arguing that by asking Verhougstraete to review the checks from
her professional corporation, the IRS had improperly disclosed her tax return
information and thereby “contaminated the evidence supporting the notice of
deficiency . . . and rendered it inadmissable as evidence against her.” She also
filed a motion for an evidentiary hearing on her motion to suppress; the tax court
denied both motions.
Instead of proceeding to trial, Nowicki settled her case after the IRS
conceded a portion of the asserted deficiencies. However, the stipulated decision
filed in the tax court preserved her right to appeal the denial of her motion to
suppress and her motion for an evidentiary hearing. She now appeals, arguing that
the disclosure of her return information violated § 6103 and that any evidence
obtained as a result of that violation must be suppressed.
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II. DISCUSSION
Section 61031 requires that tax returns and return information be kept
confidential and not be disclosed by a federal officer or employee, with certain
exceptions. The government argues that any disclosure to Verhougstraete was
permitted pursuant to I.R.C. § 6103(k)(6) because the disclosure was “necessary in
obtaining information, which [was] not otherwise reasonably available, with
respect to the correct determination of tax [or] liability for tax.” 26 U.S.C. §
6103(k)(6); see also 26 C.F.R. § 301.6103(k)(6)-1(b).
Nowicki contends that the exception provided for in § 6103(k)(6) is not
applicable. Although the government claims that information regarding the nature
of the expenses paid by Nowicki’s professional corporation was “not otherwise
reasonably available” because she disclaimed any knowledge of the nature of the
expenses, she adamantly denies that suggestion.
1
Section 6103 provides, in relevant part:
(a) General rule.—Returns and return information shall be confidential, and
except as authorized by this title—
(1) no officer or employee of the United States . . .
shall disclose any return or return information obtained by him in any manner in
connection with his service as such an officer or an employee or otherwise or
under the provisions of this section.
26 U.S.C. § 6103(a).
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Even assuming for the sake of argument that the § 6103(k)(6) exception is
not applicable, imposition of the exclusionary rule is not warranted for a disclosure
of return information which violates § 6103. Congress has specifically provided
civil (I.R.C. § 7431) as well as criminal penalties (I.R.C. § 7213) for violations of §
6103. There is no statutory provision requiring exclusion of evidence obtained in
violation of § 6103 and we will not invent one.
In United States v. Thompson, 936 F.2d 1249, 1250 (11th Cir. 1991), we
considered a criminal defendant’s contention that evidence should have been
suppressed in his trial on various drug charges because of a violation of the statute
(18 U.S.C. § 3121 et seq.) allowing for use of a “pen register.” We looked for
guidance to several cases addressing other statutes which held that statutory
violations by themselves were not sufficient to warrant imposition of the
exclusionary rule.2 Thompson, 936 F.2d at 1251. Assuming without deciding that
§ 3121 had been violated, we reasoned that:
Clearly Congress intended to place limits on the Government’s ability
to monitor the private activities of individuals when it passed this
statute. Congress did not, however, suggest that any information
obtained in violation of the statute’s provisions should be excluded.
Instead the statute provides only for fines and possible imprisonment
for knowing violations. When Congress specifically designates a
2
One of those cases was United States v. Michaelian, 803 F.2d 1042, 1049 (9th Cir.
1986), which considered the appropriate remedy for a violation of § 6103.
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remedy for one of its acts, courts generally presume that it engaged in
the necessary balancing of interests in determining what the
appropriate penalty should be. Absent a specific reference to an
exclusionary rule, it is not appropriate for the courts to read such a
provision into the act.
Id. at 1251-52 (citations omitted).
We find that reasoning persuasive and equally applicable here. Congress
saw fit to provide only certain remedies for violations of § 6103, and the
exclusionary rule was not one of them. Even assuming that the disclosure to
Verhougstraete violated § 6103, suppression of any evidence resulting from that
violation is not an appropriate remedy. See United States v. Michaelian, 803 F.2d
1042, 1049-50 (9th Cir. 1986) (because Congress specifically provided for
criminal penalties for § 6103 violations, suppression of evidence was not an
appropriate remedy); Marvin v. United States, 732 F.2d 669, 673 (8th Cir. 1984)
(same, but also noting that Congress provided civil penalties for § 6103 violations).
AFFIRMED.
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