432 F3d 387 Megibow v. Clerk of the United States Tax Court 04-6204 Cv

432 F.3d 387

Alec J. MEGIBOW, Plaintiff-Appellant,
v.
CLERK OF THE UNITED STATES TAX COURT, Defendant-Appellee.
Docket No. 04-6204 CV.

United States Court of Appeals, Second Circuit.

Argued: December 12, 2005.

Decided: December 21, 2005.

Anthony M. Bentley, New York, N.Y., for Plaintiff-Appellant.

Peter M. Skinner, Assistant United States Attorney for David N. Kelley, United States Attorney for the Southern District of New York (Ramon E. Reyes, Jr., Assistant United States Attorney, on the brief), New York, N.Y., for Defendant-Appellee.

Before: CALABRESI, KATZMANN, and HALL, Circuit Judges.

PER CURIAM.

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1

This appeal presents the issue of whether the United States Tax Court ("Tax Court"), established by the Tax Reform Act of 1969, 26 U.S.C. § 7441,1 is subject to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 — or whether it qualifies as a court of the United States, and is therefore expressly outside the ambit of FOIA. See 5 U.S.C. § 551(1)(B) (excluding from FOIA "the courts of the United States"). The question is one of first instance, and heretofore has not been addressed by us.2 The district court below (Lynch, J.), in a thorough and well-reasoned opinion, concluded that the Tax Court is, in fact, a court for the purposes of FOIA. Accordingly, it held that FOIA could not be applied to the Tax Court. We affirm for the reasons given by the district court.

2

We have considered all of Appellant's arguments and find them to be without merit. The judgment of the district court is hereby AFFIRMED.

Notes:

1

"There is hereby established, under article I of the Constitution of the United States, a court of record to be known as the United States Tax Court. The members of the Tax Court shall be the chief judge and the judges of the Tax Court." 26 U.S.C. § 7441

2

Among the federal courts, only the District Court of Montana has previously considered the issue. It concluded, as we do, that the Tax Court is not subject to FOIA, and the Ninth Circuit affirmed the decision in an unpublished summary orderSee Ostheimer v. Chumbley, 498 F.Supp. 890, 892 (D.Mont. 1980), aff'd, 746 F.2d 1487 (9th Cir.1984).