479 F2d 317 Williams 72-1600 v. Internal Revenue Service M Donlon 72-1601

479 F.2d 317

73-1 USTC P 9476

John J. WILLIAMS and Elizabeth M. Williams, his wife,
Appellants in No. 72-1600,
v.
INTERNAL REVENUE SERVICE.
Joseph M. DONLON and Catherine Donlon, his wife, Appellants
in No. 72-1601,
v.
INTERNAL REVENUE SERVICE.

Nos. 72-1600 and 72-1601.

United States Court of Appeals,
Third Circuit.

Argued April 30, 1973.
Decided May 30, 1973.

Robert E. Schlusser, Murdoch, Longobardi, Schwartz & Walsh, Wilmington, Del., for appellants.

Richard S. Halberstein, Scott P. Crampton, Dept. of Justice, Tax Division, Washington, D.C., for appellee.

Before HUNTER, and WEIS, Circuit Judges, and NEWCOMER, District Judge.

OPINION OF THE COURT

PER CURIAM:

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1

Appellants seek to overturn the granting of summary judgments by the District Court in favor of the Internal Revenue Service denying appellants' requests for injunctive relief pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552. Specifically, appellants sought to enjoin the Internal Revenue Service from withholding certain identified records related to the determination of appellants' tax deficiencies presently under question in the United States Tax Court.

2

The District Court granted summary judgment on the grounds that (1) the data compiled in connection with an audit of an individual's income tax liability constitutes an "investigatory file compiled for law enforcement purposes" within the meaning of 5 U.S.C., Sec. 552 (b)(7); (2) the exception clause found in Sec. 552(b)(7) which provides for disclosure "to the extent available by law to a party other than an agency" does not include availability under the discovery provisions of the Federal Rules of Civil Procedure; and (3) even if the exception clause found in Sec. 552(b)(7) was construed to allow discovery under the Federal Rules of Civil Procedure, those provisions would not apply in this case because the parties are presently involved in litigation before the United States Tax Court and not the United States District Court.

3

After carefully considering the briefs, oral argument and the District Court Opinion, we conclude that the District Court correctly granted summary judgment in favor of the appellee, the Internal Revenue Service, and we agree with the reasoning of the learned District Court Judge which is set forth in his Memorandum Opinion filed March 7, 1972.

4

Accordingly, the judgment of the District Court will be affirmed.