Court filing

Defendant's Opposition to Motion to Disclose Tax Return Information — U.S. v. Merritts

No. 1:25-cr-00076-JMC · Doc. 44 · Docket on CourtListener

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Case 1:25-cr-00076-JMC Document 44 Filed 12/16/25 Page 1 of 9

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________x
UNITED STATES OF AMERICA, : Case No.: 1:25-CR-76-JMC
Plaintiff, :
vs. :
:
CORTNEY MERRITTS, :
Defendant. :
____________________________________x

DEFENDANT’S RESPONSE IN OPPOSITION TO GOVERNMENT’S
MOTION TO DISCLOSE TAX RETURN AND TAX RETURN INFORMATION
NUNC PRO TUNC TO NOVEMBER 26, 2025

Defendant Cortney Merritts, by and through undersigned counsel, respectfully requests that

this Court deny the Government’s Motion To Disclose Tax Return And Tax Return Information

Nunc Pro Tunc to November 26, 2025. Doc. # 37.

I. RELEVANT BACKGROUND

The Government cannot unring a bell—yet that is precisely what it is attempting to do. And

this Court should reject the Government’s invitation to join in this futile undertaking.

On November 26, 2025, the Government filed its opposition (Doc. # 31) to Merritts’ motion

in limine to prohibit the Government from attributing the act of production of corporate records

to Merritts. Doc. # 21. The opposition was publicly filed on this Court’s docket. Attached to the

Government’s publicly filed opposition were numerous exhibits.

Of particular relevance, exhibit 4 was a “certificate of lack of record” (IRS Form 3050) from

the IRS. See Doc. # 31-4. Exhibit 5 was a letter dated April 30, 2024, from the IRS office of privacy,

governmental liaison and disclosure to AUSA Josha S. Rothstein, which included the warning that

“[i]f you or other personnel disclose the information contrary to these guidelines or use it for other

purposes, you may become liable for civil damages, fines, and imprisonment for unauthorized
Case 1:25-cr-00076-JMC Document 44 Filed 12/16/25 Page 2 of 9

disclosure under IRC Sections 7213, 7213A, and 7431, as well as Title 18 Section 1905 of the

United States Code.” See Doc. # 31-5 at p. 1. Attached to the April 30, 2024, letter was a copy of

the first three pages of Merritts’ 2019 IRS Form 1040, including Merritts’ social security number

(not redacted) and his street address (not redacted). See Doc. # 31-4 at p. 3. And exhibit 9 was a

draft of Merritts’ 2020 IRS Form 1040 Schedule C. See Doc. # 31-9.

Five days later, on December 1, 2025, counsel for the Government emailed the Clerk’s office

asking that exhibits 4 and 5 be placed under seal. See Doc. # 37 at n.1. The following day, the Clerk’s

office placed the entire opposition (Doc. # 31) under seal. See id. Counsel for the Government then

engaged in further communications with the Clerk’s office and the opposition was removed from

this Court’s docket as “entered in error.” Id. The Clerk’s office, in response to questioning from

counsel for the Government explained, “[a]nd unfortunately, it would not be possible for us to see

who has viewed/downloaded the exhibits.”1

On December 2, 2025, the Government refiled its opposition (Doc. # 35), along with a

motion to seal the exhibits previously enumerated as exhibits 4 and 5 (Doc. # 36). 2 The Government

also filed the instant motion to disclose tax return and tax return information nunc pro tunc to

November 26, 2025. Doc. # 37. Stated simply, the Government seeks an Order from this Court

granting the Government permission to have filed Merritts’ tax return and tax return information

back on November 26, 2025, when the Government did so without a court order and in clear

violation of 26 U.S.C. § 6103. The Government also notes in its motion that the exhibits filed on

1
This email communication was provided to undersigned counsel by counsel for the Government
and can be made available to this Court.
2
The Government publicly filed the previously enumerated exhibit 9 (Merritts’ draft 2020 IRS Form
1040 Schedule C) as exhibit 7 and makes no request to place this exhibit under seal.

2
Case 1:25-cr-00076-JMC Document 44 Filed 12/16/25 Page 3 of 9

November 26, 2025, also included Merritts’ unredacted social security number, his home address,

and the address number associated with his business. See Doc. # 37 at ¶ 8.

II. THIS COURT SHOULD DENY THE GOVERNMENT’S MOTION

On November 26, 2025, counsel for the Government violated the clear mandate of 26

U.S.C. § 6103 in disclosing sensitive taxpayer information—the Government concedes as much in

the pending motion. Indeed, it appears counsel for the Government may even have committed a

crime. 26 U.S.C. § 7213(a)(1) provides:

It shall be unlawful for any officer or employee of the United States or any person
described in section 6103(n) (or an officer or employee of any such person), or any
former officer or employee, willfully to disclose to any person, except as authorized
in this title, any return or return information (as defined in section 6103(b)). Any
violation of this paragraph shall be a felony punishable upon conviction by a fine in
any amount not exceeding $5,000, or imprisonment of not more than 5 years, or
both, together with the costs of prosecution, and if such offense is committed by any
officer or employee of the United States, he shall, in addition to any other
punishment, be dismissed from office or discharged from employment upon
conviction for such offense.

Making matters worse, the Government also acknowledges that its November 26, 2025, filing

violated Federal Rule of Criminal Procedure 49.1 which requires redaction of social security

numbers and home addresses. Indeed, every time counsel logs into this Court’s electronic filing

system, he or she must check a box acknowledging these requirements.

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As the D.C. Circuit Court of Appeals has explained: “This general ban on disclosure

provides essential protection for the taxpayer; it guarantees that the sometimes sensitive or otherwise

personal information in a return will be guarded from persons not directly engaged in processing or

inspecting the return for tax administration purposes. The assurance of privacy secured by § 6103 is

fundamental to a tax system that relies upon self-reporting.” Gardner v. United States, 213 F.3d 735,

738 (D.C. Cir. 2000).

In the context of this nation’s history, Section 6103 plays an important role. “[I]n the wake

of Watergate and White House efforts to harass those on its ‘enemies list,’” Congress passed the

strict confidentiality requirements found in Section 6103. Tax Analysts v. I.R.S., 117 F.3d 607, 611

(D.C. Cir. 1997); see also Tax Reform Act of 1976, Pub. L. No. 94-455, 90 Stat. 1520 (1976); James

N. Benedict & Leslie A. Lupert, Federal Income Tax Returns-The Tension Between Government Access and

Confidentiality, 64 Cornell L. Rev. 940, 941-42 (1979) (“This fundamental change resulted in part

from Watergate-related events in the 1970s where evidence was uncovered that President Nixon may

have had income tax audits and investigations initiated and conducted in a discriminatory manner

for purposes unrelated to the collection of taxes.”). A report prepared by the Joint Committee on

Taxation explained that the “[r]easons for change” included the White House’s acquisition of return

information “pertaining to a number of well known individuals for non-tax purposes.” Joint Comm.

on Taxation, JCS-33-76, General Explanation of the Tax Reform Act of 1976 at 314 (1976). Against

this backdrop, the sharing of return information by the IRS with other agencies—specifically

including the U.S. Department of Justice outside of its Tax Division, raised privacy concerns, which

could “seriously impair the effectiveness of our country’s very successful voluntary assessment system,

which is the mainstay of the Federal tax system.” Id. Rather than allowing the Executive to control

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Case 1:25-cr-00076-JMC Document 44 Filed 12/16/25 Page 5 of 9

sensitive taxpayer records, “Congress undertook direct responsibility for determining the types and

manner of permissible disclosures.” In re U.S., 817 F.3d 953, 960 (6th Cir. 2016) (quoting Office of

Tax Policy, Taxpayer Confidentiality Provisions, Vol. I at 22).

As the Hon. Rudolph Contreras recognized last year, “To give teeth to these confidentiality

provisions, Congress increased the criminal penalties found in 26 U.S.C. § 7213 and added civil

liability.” Biden v. IRS, case no. 1:23-cv-02711-RC (D.D.C) (at docket no. 39 at 9). As the district

court explained, “Congress intended taxpayers’ return information to be broadly protected from

disclosure to prevent abuse by Executive officers and politicization of the voluntary assessment

system” and “the evolution of these statutes additionally demonstrates that Congress specifically

decided that civil liability for federal employees’ unlawful activity should lie against the federal

government and not against the employees themselves.” See id. at 9-10

A. The Government’s Request for a Nunc Pro Tunc Order Should be Denied

To its credit, the Government makes no attempt to argue that its November 26, 2025,

disclosures were permissible. Instead, the Government asks this Court for cover. But even if this

Court were to grant the Government the relief it seeks—a nunc pro tunc Order backdating permission

to disclose the above-described documents—this will do nothing to undo the harm already caused by

the Government’s missteps. The Clerk’s office has already confirmed there is no way to determine

who accessed these documents during the five days they were publicly available, and an after-the-fact

Order cannot possibly change that fact. As such, this Court should deny the Government’s request

that an Order be entered nunc pro tunc.

And, perhaps even more importantly, this Court should deny the Government’s request

because it finds absolutely no support in the law.

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“‘Nunc pro tunc’ is a fancy phrase for backdating.” Sierra Club v. Whitman, 285 F.3d 63, 67

(D.C. Cir. 2002). It does not mean that this Court issued an Order before it did. See, e.g., Wilson v.

U.S. Bank, N.A., No. 23-CV-3058 (DLF), 2024 WL 2110142, at *3 (D.D.C. May 10, 2024).

“Nunc pro tunc relief has been granted only in a limited number of circumstances, where its

entry is necessary to avoid, and does not create, an injustice at the hands of the court itself.” Weil v.

Markowitz, 898 F.2d 198, 201 (D.C. Cir. 1990). Here, entry of an Order nunc pro tunc does not serve

the interest of justice. As the Clerk noted in its email to Government counsel, there is no way to

know how many people accessed the publicly filed documents which, separate and apart from

Section 6103, included Merritts’ social security number and home address. A nunc pro tunc Order

will not undo the harm that has already occurred and cannot avoid an injustice.

“The Supreme Court has recognized two broad categories in which this equitable power may

be exercised. First, the Supreme Court has held that nunc pro tunc relief may be used to remedy delays

resulting from the judicial process that are not attributable to the unreasonable delay of the

parties[.]” In re Player's Poker Club, Inc., 636 B.R. 811, 825 (Bankr. C.D. Cal. 2022) (citing Mitchell v.

Overman, 103 U.S. 62, 63–65 (1880)).

“Second, the Supreme Court has held that nunc pro tunc relief may be used to retroactively

correct or supplement a court’s record.” Id. at 826-27 (citing Missouri v. Jenkins, 495 U.S. 33, 49-50

(1989) (court of appeals permitted to retroactively correct its order denying rehearing en banc to add

denial of petition for rehearing, thereby reflecting what had actually occurred); Bernards v. Johnson,

314 U.S. 19, 22 n.4 (1941) (noting nunc pro tunc entry of order previously made but not timely

entered on docket, as confirmed by the clerk’s notes and recollection of the judge); Coder v. Arts, 213

U.S. 223, 237 (1909) (court of appeals allowed to make findings and conclusions retroactive to

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Case 1:25-cr-00076-JMC Document 44 Filed 12/16/25 Page 7 of 9

judgment date when they were filed within the appeals period); Supervisors v. Durant, 76 U.S. 736,

737 (1869) (permitting nunc pro tunc correction of trial court’s journal and marshal’s return when

omissions arose through inadvertence and were related to common practices)).

This use of the nunc pro tunc power is not without limits. As the Supreme Court has

explained, “[t]he power to amend its records, to correct mistakes of the clerk or other officer of the

court, inadvertencies of counsel, or to supply defects or omissions in the record, even after the lapse

of the term, is inherent in courts of justice....” Gagnon v. United States, 193 U.S. 451, 456 (1904).

But it “must not be confounded with the power to create. It presupposes an existing record, which

is defective by reason of some clerical error or mistake, or the omission or some entry which should

have been made during the progress of the case, or by the loss of some document originally filed

therein.” Id. at 457. Thus, in Gagnon, the Supreme Court upheld a collateral attack on a nunc pro

tunc judgment of naturalization—entered over 30 years after plaintiff allegedly was naturalized—

because there was no evidence establishing that an order actually had been entered at the time.

A court cannot “create” a record that does not exist. Id. at 456. “Put colorfully, ‘[n]unc pro

tunc orders are not some Orwellian vehicle for revisionist history—creating ‘facts’ that never occurred

in fact.’” Roman Cath. Archdiocese of San Juan, Puerto Rico v. Acevedo Feliciano, 589 U.S. 57, 65 (2020)

(quoting United States v. Gillespie, 666 F. Supp. 1137, 1139 (ND Ill. 1987)). “Put plainly, the court

‘cannot make the record what it is not.’” Id. (quoting Jenkins, 495 U.S. at 49). But that is precisely

what the Government requests.

The Government violated the clear mandate of Section 6103 and entry of an Order the

Government seeks cannot make the record what it is not. And the Government, for its part, cites

no legal authority in support of its audacious request that this Court whitewash what transpired.

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Case 1:25-cr-00076-JMC Document 44 Filed 12/16/25 Page 8 of 9

B. This Court Should Deny the Government’s Request to Disclose Merritts’ Tax
Return and Tax Return Information

The Government seeks an Order permitting disclosure of Merritt’s tax return and tax return

information for purposes of opposing his motion in limine to prohibit the Government from

attributing the act of production of corporate records to him. However, disclosure of these

documents for that purpose is entirely unnecessary.

First, this Court has already denied Merritts’ motion. See Dec. 5, 2025, Minute Order. As

such, disclosing the documents for that purpose is unwarranted. Second, the documents the

Government seeks permission to disclose are not even relevant to that issue. Additionally, exhibit 5

to the Government’s original opposition expressly notes, “If you need documents certified for actual

introduction into a court proceeding, contact the Disclosure Office using the phone number

provided in this letter.” Doc. # 31-5 at 1. In other words, the document the Government seeks to

introduce “into a court proceeding” is not even properly certified for this purpose. At a minimum,

the Government’s request is premature as it does not appear to yet possess documents certified for

“actual introduction into a court proceeding” and whether these documents should be admitted at

trial is a different question for a different day.

III. CONCLUSION

Based on the foregoing, Merritts respectfully requests that this Court deny the Government’s

Motion To Disclose Tax Return And Tax Return Information Nunc Pro Tunc to November 26, 2025,

and for such other and further relief as this Court deems necessary and just under the circumstances.

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Case 1:25-cr-00076-JMC Document 44 Filed 12/16/25 Page 9 of 9

Respectfully submitted,

/s/Joseph A. DiRuzzo, III Dec. 16, 2025
Joseph A. DiRuzzo, III
MARGULIS GELFAND DIRUZZO & LAMBSON, LLC
500 East Broward Blvd., Suite 900
Ft. Lauderdale, FL 33394
954.615.1676 (o)
954.827.0340 (f)
jd@margulisgelfand.com

/s/ Justin K. Gelfand
Justin K. Gelfand
MARGULIS GELFAND DIRUZZO & LAMBSON, LLC
7700 Bonhomme Avenue
Suite 750
St. Louis (Clayton), Missouri 63105
314.390.0230 (o)
314.485.2264 (f)
justin@margulisgelfand.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on Dec. 16. 2025, a true and correct copy of the foregoing has

been filed via ECF and that a NEF will be provided to counsel of record.

/s/Joseph A. DiRuzzo, III
Joseph A. DiRuzzo, III

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