concurring:
I write separately to emphasize my strong conviction that our holding in United States v. Texas Heart, 755 F.2d 469 (5th Cir.1985), is not only controlling, but is also prudent. Dr. Barrett’s request that the District Court protect his privacy rights by allowing conditional enforcement of the summonses does not restrict the IRS in their investigatory capacity beyond restrictions already imposed by Congress and the Supreme Court.
The mandate of Texas Heart provides for an easy and efficient method of avoiding the necessity of requiring the District Court to stand idly by while its processes are unnecessarily used to inflict damage upon a taxpayer’s reputation when such harm can easily be prevented.
Texas Heart explicitly provides that:
the district court has discretion to condition enforcement of the summonses by requiring that the IRS agree to desist from further unlawful disclosures.
755 F.2d at 482. Therefore, if it is an unlawful disclosure, Texas Heart vests authority in the District Court to discover and prohibit an abuse of discretion through summary enforcement proceedings.
My brothers continue to fear that permitting the District Court to inquire whether the breadth of the IRS summons, or the practices flowing from its use, can be tailored so as not to collide with the congressional purpose of protecting the taxpayer from an unnecessary invasion of his/her privacy would burden the enforcement proceedings and/or expand the inquiry of the District Court beyond the limits of United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). This fear is unnecessary.
The IRS is already required to go before the District Court to prove that it possesses a legitimate investigative purpose for the summons. Powell, 379 U.S. at 57-58, 85 S.Ct. at 254-55. Much of the evidence pertinent to the existence of a proper legislative purpose will also be relevant to determining whether the disclosure of return information is necessary to obtain information not otherwise available. The determination of whether there exists a legitimate investigative purpose for the summons is *1381not far removed from the determination of whether the practices flowing from its enforcement are an unnecessary invasion of privacy or threaten injury to the taxpayer’s reputation.
Furthermore, my reading of the authorities compels the conclusion that such an inquiry is included in the District Court’s review of IRS summonses. The Supreme Court stated that the IRS’s power to collect information is limited where unambiguously directed by Congress. United States v. Arthur Young & Co., 465 U.S. 805, 816, 104 S.Ct. 1495, 1502, 79 L.Ed.2d 826 (1984). Congress has expressly provided that the IRS investigative powers do not include the power for unnecessary invasions of privacy or injuries of a taxpayer’s reputation. Sections 6103 and 7431 provide civil and criminal penalties to redress unnecessarily injurious enforcement processes by the IRS. Congress unambiguously stated that these remedies were for unnecessary injuries; they did not say the injuries were necessary but unavoidable. Congress expressly limited the IRS investigative powers to prohibit the unnecessary injuries Dr. Barrett has petitioned the District Court to enjoin.
In these days of overloaded dockets and scarce judicial resources, the other panel members would require the taxpayer to commence a separate lawsuit to redress an injury which could be prevented through the immediately available vehicle of conditional enforcement at the summons enforcement hearing.
We need not speculate on the efficacy of any such proposed remedy. Indeed, Dr. Barrett attempted to follow this very path and comply with this panel’s original holding by filing a civil action for damages under Section 7431. The District Court granted summary judgment for the government and Dr. Barrett was forced to bring his claim before the Fifth Circuit yet another time. This Court reversed the grant of summary judgment. Barrett v. United States, 795 F.2d 446 (5th Cir.1986). After three cases in the District Court and three times in this Court — a total of twelve United States Judges — the doctor has yet to get the protection which Texas Heart assures.
Nowhere can the injustice of restricting taxpayers to post-injury remedies be seen as well as it can in this case. Dr. Barrett’s attempts to follow the course of conduct urged by the concurring — yet unbinding— opinion have resulted in no relief and a considerable waste of time and money by the taxpayer, the government, and the courts. The position urged in this panel’s original holding and in the concurring opinion on rehearing has already proven that restricting the taxpayer to post-injury remedies is not only inefficient, but most importantly, it is ineffective. This rehearing is the fourth time this circuit has heard virtually the same claim by Dr. Barrett and has yet to provide him any relief. We now have the clear indication of the burden imposed upon these proceedings and the time-consuming litigation that sections 6109 and 7431 entail; however, contrary to the concurring opinion, the true burden has resulted from prohibiting the District Court from examining the question at the summons enforcement hearings when it had all the evidence before it and was in a position to prevent both the harm and the wasteful, time-consuming litigation that has followed.
I do not believe Congress intended to preclude the courts from preventing unnecessary injuries when they adopted legislation to compensate taxpayers for unnecessary injuries. Disclosing information which would violate sections 6103 and 7431 clearly constitutes an unlawful disclosure and would be an abuse of discretion to permit the disclosure of return information that is, by statute, not necessary to the investigation. Therefore, I read Texas Heart's mandate permitting the District Court to use conditional enforcement at the summons enforcement proceeding as totally consistent with the unambiguous intent of the guidelines established by Congress and interpreted by the Supreme Court.