ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

PAUL C. HUCK, United States District Judge

THIS CAUSE is before the Court on the Defendant, United States of America's ("United States") Motion for Judgment on the Pleadings ("Motion"). The Court has reviewed the Motion with supporting memorandum, the Plaintiffs' memorandum in opposition and the United States' Reply. In its Motion the United States argues that the Complaint itself reflects that there are no material facts in dispute and that the United States is entitled to judgment on all three counts alleged in the Complaint.

In their three count Complaint, Plaintiffs sue the United States for 1) unauthorized disclosure of their income tax return information, pursuant to 26 U.S.C. § 7431 of the Internal Revenue Code ("IRC"); 2) infliction of emotional distress resulting from intentional, retaliatory acts, relating the Internal Revenue Service's ("IRS") audit of Plaintiff's income tax returns, in violation of Plaintiffs' right to due process under the law; and 3) desperate treatment, also associated with the audit of Plaintiffs' income tax returns, including discrimination based on sexual orientation and religion in violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

In response, the United States contends, as to Count I, that there has been no "disclosure" of Plaintiffs' return information as that term is contemplated by Sections 7431 and 6103 of the IRC, as to Counts II and III, that the United States is immune from claims arising as a result of alleged violations of constitutional rights and of conduct "arising in respect of the assessment or collection of any tax."

For the reasons set forth below, the Court finds that the United States is entitled to judgment on the pleadings as to Counts II and III, but not as to Count I.

The Complaint alleges the following as facts:

Robert Feinschreiber and Margaret Kent are husband and wife, living at 1121 Crandon Boulevard, Key Biscayne, Florida 33149. Kent is the author of How to Marry the Man of Your Choice. Warner Books published How to Marry the Man of Your Choice in 1987. The Plaintiffs undertook an extensive promotional tour in 1988 to promote sales of How to Marry the Man of Your Choice. Royalties from Warner Books were a primary source of income for the Plaintiffs. The royalty payments were paid by Warner Books to Kent's literary agent, March 10, Inc., whose mailing address is 4 Myrtle Street, Haworth, New Jersey, 07641. March 10, Inc., in turn, transmitted royalty payments, less its commission, to Kent.

Ramon A. Fuentes is an IRS revenue agent who audited the Plaintiffs' tax returns for the years 1988 through 1992. In April 1994, during an audit examination, Fuentes told Feinschreiber that he was offended by the subject matter of Kent's book, How to Marry the Man of Your Choice, because Fuentes believed that women should not have a choice in marriage. In his audit, Fuentes eliminated every expense deduction incurred by the Plaintiffs in conjunction with the book's 1988 promotional tour. Fuentes determined that none of the claimed expenses were deductible. In a meeting with Fuentes in July 1994, Feinschreiber stated that he had been audited for 1987. Fuentes called Feinschreiber a "liar" and falsely claimed Feinschreiber had not been audited for 1987. In March, 1995, Fuentes told Feinschreiber that "You can't accuse me of bigotry. I know that you are a Jew, and I've known other Jews and treat them accordingly."

After his audit, Fuentes referred the case to IRS' Criminal Investigation Division, and did so without cause. On November 24, 1992 without prior notice, IRS agents, Patrick Earp and Theresa W. Girard, visited Hilda Bradfield, Kent's then eighty-year old mother and proceeded to interview her.

James P. Dawson, an IRS attorney, subsequently recommended that the criminal claim brought against the Plaintiffs be dismissed. The criminal claim against Feinschreiber and Kent was then dismissed. Moreover, Dawson allowed as valid deductions under the IRC all of the expenses incurred by the Plaintiffs in conjunction with the 1988 book promotional tour. At some point, Plaintiffs contested Fuentes' audit findings and brought suit in the United States Tax Court to contest their remaining tax liability.

Plaintiffs ultimately settled with the IRS, establishing the amount of taxes still due from the Plaintiffs. When Plaintiffs failed to pay all taxes due, the IRS sought to enforce payment by the Plaintiffs. On August 19, 1999, the IRS mailed its Letter #2050, Exhibit C to the Complaint, addressed to "Margaret Bradfield Kent Robert," 4 Myrtle Street, Haworth, New Jersey, 07641 March 10, Inc.'s, not Plaintiffs', address. On September 14, 1999, the IRS mailed its Letter #3164, Exhibit D to the Complaint, also to "Margaret Bradfield Kent Robert," 4 Myrtle Street, Haworth, New Jersey, 07641. Fuentes caused the IRS to send the above-mentioned letters to March 10, Inc. Plaintiffs allege that Fuentes caused the IRS to send the two letters to humiliate and embarrass the Plaintiffs, and that the letters had a chilling effect on their author-book agent relationship with March 10, Inc., and that, as a result, Kent was precluded from publishing her books.

Plaintiffs bring their claims pursuant to Sections 7531 and 6103 of the IRC which provide in parts relevant to the issues raised in the United States' Motion:

INTERNAL REVENUE CODE SECTION 7431. CIVIL DAMAGES FOR UNAUTHORIZED INSPECTION OR DISCLOSURE OF RETURNS AND RETURN INFORMATION.

(a) In General. —

(1) Inspection or disclosure by employee of United States. — If any officer or employee of the United States knowingly, or by reason of negligence, inspects or discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States in a district court of the United States.

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(b) Exceptions. — No liability shall arise under this section with respect to any inspection or disclosure —

(1) which results from a good faith, but erroneous, interpretation of section 6103, or

(2) which is requested by the taxpayer.

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(d) Period for bringing action. — Notwithstanding any other provision of law, an action to enforce any liability created under this section may be brought, without regard to the amount in controversy, at any time within 2 years after the date of discovery by the plaintiff of the unauthorized inspection or disclosure.

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(f) Definitions. — For purposes of this section, the terms "inspect", "Inspection", "return", and "return information" have the respective meanings given such terms by section 6103(b).

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INTERNAL REVENUE CODE SECTION 6103. CONFIDENTIALITY AND DISCLOSURE OF RETURNS AND RETURN INFORMATION.

(b) Definitions.— For the purposes of this section —

* * *

(2)Return Information. — The term "return information" means —

(A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other imposition, or offense,

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(8) Disclosure. — The term "disclosure" means the making known to any pereson in any matter whatever a return or return information.

In determining a defendant's Motion, the Court accepts as true all well pleaded facts in the complaint, viewing them in the light most favorable to the plaintiff. Moore v. Liberty Nat'l Life Ins. Co., 267 F.3d 1209, 1212 (11th Cir. 2001). Judgment on the pleadings is not appropriate unless the complaint reveals that the plaintiff can prove no set of facts entitling plaintiff to relief. Id. Thus, the standard for granting judgment on the pleadings is a high one.

The United States has met that standard as to Plaintiffs' Counts II and III. This is because those two counts allege that IRS agent, Fuentes, through his tortuous conduct, violated Plaintiffs' constitutional rights. Thus, Plaintiffs' Counts II and III run directly counter to the Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). In Bivens, the Supreme Court, while holding that the United States Constitution provides a cause of action for constitutional violations by federal officials, limited such lawsuits to the offending federal official, thereby excluding suits against the United States. McCollum v. Bolger, 794 F.2d 602, 608 (11th Cir. 1986). Here, to the extent that Plaintiffs' claims implicate constitutional violations, they are foreclosed because Plaintiffs have sued only the United States, not the alleged wrongdoer.

To the extent that Plaintiffs' claims constitute tort claims, they fall to the United States' sovereign immunity. This is because, except to the extent that the United States has expressly waived its sovereign immunity, it may not be sued in tort. United States v. Mitchell, 445 U.S. 535, 538 (1980); Eastern Associated Coal Corp. v. Director, Office of Workers' Compensation Programs, 791 F.2d 1129, 1131 (4th Cir. 1986). Any waiver of immunity by the United States is strictly construed and does not extend beyond the specific statutory language waiving immunity. United States v. Nordic Vifiage, Inc., 503 U.S. 30, 33-34 (1992).

The United States has not waived its sovereign immunity in respect of the claims asserted in Counts II and III. Generally, a Plaintiff who seeks to sue the United States in tort does so pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346, 2671-2680 ("FTCA"). However, the FTCA provides no comfort to Plaintiffs. This is because the FTCA, by its express terms, excludes "any claim arising in respect of the assessment or collection of any tax." 28 U.S.C. § 2680(c). This broad exclusion covers Plaintiffs' constitutional tort claims as they are alleged in the Complaint. See Perkins v. United States, 55 F.3d 910, 914 (4th Cir. 1995); Jones v. United States, 16 F.3d 979, 980-81 (8th Cir. 1994). As the Perkins Court observed, the section 2680(c) tax assessment or collection exclusion under the FTCA "is broad enough to encompass any allegedly tortuous activities of an IRS agent even remotely related to his or her official duties." Perkins, 55 F.3d at 913 (quoting Capozzoli v. Tracy, 663 F.2d 654, 658 (5th Cir. 1981)). (Emphasis in original.) This broad exclusion even includes an IRS agent's unauthorized tortious acts designed to intentionally and illegally intimidate and harass the taxpayer, so long as they arise out of tax collecting efforts. Capozzoli, 663 F.2d at 658. Morris v. United States, 521 F.2d 872, 874 (9th Cir. 1975).

Even if the section 2680(c) exclusion did not apply here, Counts II and III would be barred because Plaintiffs have failed to allege that they have complied with the FTCA requirement of first filing an administrative claim with the United States. Such a pre-suit claim is a condition precedent to bringing suit against the United States under the FTCA. 28 U.S.C. § 2675(a).

Finally, to the extent that Counts II and III rely on Fuentes' alleged discriminatory and other wrongful acts in 1987, 1992, 1994 and 1995 (see Complaint ¶¶ 16-24) they are time-barred. FTCA claims must be filed with the appropriate federal agency within two years of the alleged wrongful act. 28 U.S.C. § 2401(b).

The United States concedes that Count I is not barred by its sovereign immunity because the United States, by virtue of Section 7431, specifically authorizes claims arising out of wrongful disclosure of a taxpayer's income tax return information. However, the United States asserts that it made no "disclosure," as that term is defined in Section 6103(b)(8), because the two letters, which are the basis of Count I, were addressed and sent to:

Margaret Bradfield Kent Robert 4 Myrtle Street Haworth, New Jersey 07641

The United States argues that because these two letters were directed to the Plaintiffs, and not to March 10, Inc., though March 10, Inc.'s address was used, that March 10, Inc.'s representative, Sandra Charon, opened the letters either with Plaintiffs' permission, as their agent, or without Plaintiffs' permission. In either case, argues the United States, there was no wrongful disclosure as contemplated by Section 6103(b)(8).

However, on a motion for judgment on the pleadings, the Court is confined to the allegations of the Complaint, including exhibits, which allegations must be taken as true. The Complaint alleges that Fuentes caused the letters to be sent to March 10, Inc. for malicious purposes, to humiliate Plaintiffs, to adversely effect Plaintiffs' business relationship with March 10, Inc. and to preclude Plaintiff, Kent, from publishing her books, which Fuentes considered offensive. Thus, the Complaint, giving Plaintiffs all reasonable inferences, alleges that the letters were intended to be disclosed to March 10, Inc.

In addition, the Court notes that Section 7431(a)(1) creates an actionable claim, not only for intentional disclosure but also negligent disclosure of a taxpayer's return information. Sending return information to the wrong address, where it may be read by a third party, may be construed as negligently disclosing return information.

Based solely on the allegations of the Complaint, the Court cannot conclude as a matter of law that Plaintiffs can prove no set of facts entitling Plaintiffs to relief against the United States under Section 7431 for either knowingly or negligently disclosing their tax return information. That determination can be made only upon full development of the relevant facts, not upon this Motion for Judgment on the Pleadings.

Finally, the Court notes that the Complaint alleges that one of the letters was sent on August 19, 1999, more than two years before August 24, 2001, the date the Complaint was filed. However, while the United States has raised a statute of limitations defense in its Answer, it has not argued in this Motion that any or all of Count I is time-barred because Plaintiffs' alleged actions under Section 7431 accrued more than two years prior to Plaintiffs filing suit. See Section 7431(d). Neither party has advised the Court when any cause of action, as alleged in Count I, would accrue for time-bar purposes. For example, there may be an issue of whether the claim accrues upon the United States' mailing of, or March 10, Inc.'s receipt of, the August 19, 1999 letter. Therefore, the Court will not consider the United States' statute of limitations defense as it relates to Count I on this Motion.

For the reasons discussed above, the Court DENIES the United States' Motion for Judgment on the Pleadings as to Count I and GRANTS the Motion as to Counts II and III, with prejudice.

DONE AND ORDERED in Chambers.