Natasha Athens v. Bank of America — Defendants' Response to Plaintiff's Motion to Seal Exhibits (Document 39)
Summary
A response filed November 16, 2021 as Document 39 by defendants Bank of America, N.A. and Megan Scholz to the plaintiff's Motion to Seal (Doc. #36) in Natasha Athens d/b/a Favorite Things v. Bank of America and Megan Scholz, Civil Action No. 1:21-cv-00748-SM, in the U.S. District Court for the District of New Hampshire. The defendants argue that they did not violate 26 U.S. Code § 7213 because they fall outside the categories of persons bound by 26 U.S. Code § 6103(a), and that the plaintiff put her tax return information at issue in the case. They nevertheless assent to sealing the exhibits to their memorandum supporting the motion to dismiss. The response asks the court to grant the motion only to that extent and deny any other request. It is signed /s/ Thomas J. Pappas.
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“Natasha Athens v. Bank of America — Defendants' Response to Plaintiff's Motion to Seal Exhibits (Document 39).”
Original at archive.org. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/response-to-motion-no-1-21-cv-00748-dkt-39-36319d63f9/
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Case 1:21-cv-00748-SM Document 39 Filed 11/16/21 Page 1 of 4
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
)
NATASHA ATHENS d/b/a Favorite Things, )
)
Plaintiff, )
)
v. ) Civil Action No. 1:21-cv-00748-SM
)
BANK OF AMERICA and MEGAN SCHOLZ, )
)
Defendants. )
)
DEFENDANTS BANK OF AMERICA, N.A. AND MEGAN SCHOLZ’S
RESPONSE TO PLAINTIFF’S MOTION TO SEAL EXHIBITS
NOW COME defendants Bank of America, N.A.1 and Megan Scholz (“Defendants”), by
and through their attorneys, Primmer Piper Eggleston & Cramer PC, and hereby respectfully
responds to Plaintiff’s Motion to Seal (Doc. #36) (the “Motion”) as follows:
A. Defendants Did not Violate 26 U.S. Code § 7213.
1. 26 U.S. Code § 7213 (Unauthorized Disclosure of Information) provides that it
shall be unlawful for officers or employees of the United States or “any person described in
§6103(n)” to willfully disclose any tax return or return information.
2. 26 U.S. Code § 6103 (Confidentiality and Disclosure of Returns and Return
Information) provides that in certain circumstances, tax returns and return information shall be
confidential. Section 6103(a) provides that the confidentiality obligations applies to three
categories of persons:
(a) Officers or employees of the United States;
1
Incorrectly named in Plaintiff’s Complaint as “Bank of America.”
1
Case 1:21-cv-00748-SM Document 39 Filed 11/16/21 Page 2 of 4
(b) Offices or employees of any State, or certain local agencies, who receive
access to tax returns or return information under certain subsections of §
6103; and
(c) Other persons (or their officers and employees) who obtain access to tax
returns or return information under certain subsections of § 6103.
See 26 U.S. Code § 6103(a); see also Teno v. Iwanski, 464 F. Supp. 3d 924, 938-939 (E.D. Tenn.
2020). The Seventh Circuit Court of Appeals has described these three categories of persons as
“employees of the IRS, state employees to whom the IRS makes authorized disclosures, and
private persons who obtained tax return information from the IRS with strings attached.” See
Hrubec v. Nat'l R.R. Passenger Corp., 49 F.3d 1269, 1270 (7th Cir. 1995) (discussing earlier
version of the statute).
3. Numerous courts have held that unless a party comes within one of the three
categories of persons under § 6103(a), there can be no violation of § 6103 and there can be no
claim under § 7431 and thus no violation under § 7213. See Teno v. Iwanski, 464 F. Supp. 3d 924
(E.D. Tenn. 2020); Dietl v. Mirage Resorts, Inc., 180 F. Supp. 2d 1150 (D. Nev. 2002); Hrubec v.
Nat'l R.R. Passenger Corp., 49 F.3d 1269 (7th Cir. 1995).
4. As the court in Dietl v. Mirage Resorts, Inc. noted, “[c]ontrary to Plaintiff's claim
that sections 7431 and 6103 authorize actions against anyone who examines or distributes tax
return information without authorization, the Ninth Circuit clearly declared in Stokwitz v. U.S., 831
F.2d 893 (9th Cir.1987), that section 6103 was designed ‘to curtail loose disclosure practices by
the IRS.’ Id. at 894. ‘That is as far as the statute goes. Contrary to appellant's contention there is
no indication ... that Congress intended to enact a general prohibition against public disclosure of
tax information.’” Id. at 896.
2
Case 1:21-cv-00748-SM Document 39 Filed 11/16/21 Page 3 of 4
5. Here, Defendants are not parties within one of the three categories of persons under
§ 6103(a), and therefore, Defendants have no obligation to keep Plaintiff’s returns or return
information confidential pursuant to § 6103(a).
6. Moreover, once a party makes the information in their tax return an issue in the
litigation, they can no longer claim that their tax return information is confidential. See Star v.
Rogalny, 22 F.R.D. 256 (E.D. Ill. 1958); Currier v. Allied New Hampshire Gas Co., 101 N.H. 205,
137 A.2d 405 (1957). Here, Plaintiff has made the information in her tax return an issue in the
case by claiming that based upon that information she was entitled to receive a PPP loan and that
her PPP loan must be forgiven under the CARES Act.
B. Assent to Sealing the Exhibits.
7. Although the tax return information within the Exhibits to Defendants’
Memorandum of Law in Support of Defendants’ Motion to Dismiss are not confidential,
Defendants nevertheless assent to Plaintiff’s request to seal the exhibits.
WHEREFORE, Defendants respectfully request that the Court:
A. Grant the Motion to the limited extent that the exhibits are placed under seal;
B. Deny any other request made or inferred by the Motion; and
C. Grant such other relief as the Court deems just.
3
Case 1:21-cv-00748-SM Document 39 Filed 11/16/21 Page 4 of 4
Respectfully submitted,
BANK OF AMERICA, N.A. and MEGAN SCHOLZ
By their attorneys,
PRIMMER PIPER EGGLESTON & CRAMER PC
Dated: November 16, 2021 By: /s/ Thomas J. Pappas
Thomas J. Pappas, Esq., N.H. Bar No. 4111
P.O. Box 3600
Manchester, NH 03105-3600
(603) 626-3300
tpappas@primmer.com
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing DEFENDANTS BANK OF AMERICA, N.A.
AND MEGAN SCHOLZ’S RESPONSE TO PLAINTIFF’S MOTION TO SEAL EXHIBITS has
this day been forwarded via the Court’s Electronic Case Filing System to:
Natasha Athens
Natasha4NHGov@protonmail.com
Dated: November 16, 2021 By: /s/ Thomas J. Pappas
Thomas J. Pappas, Esq., (N.H. Bar No. 4111)
4
5066507.2
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