FATTAH v. UNITED STATES OF AMERICA et al

Filing 69

MEMORANDUM. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 5/17/17. 5/17/17 ENTERED AND COPIES MAILED TO PRO SE PLFF., E-MAILED TO COUNSEL, 1 COPY TO LEGAL BIN. Modified on 5/17/2017 (pr, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CHAKA FATTAH, JR.
v.
UNITED STATES OF AMERICA and
INTERNAL REVENUE SERVICE

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:
:
:
:
:

CIVIL ACTION

NO. 14-1092

MEMORANDUM OPINION
Savage, J.

May 17, 2017

The United States moves for summary judgment on plaintiff Chaka Fattah, Jr.’s
causes of action for wrongful disclosure of tax return information in violation of 26
U.S.C. § 7431 and for a refund of tax penalties.1 Conceding that there was a wrongful
disclosure, the United States contends that Fattah cannot prove he sustained damages
as a result of the wrongful disclosure. It also argues that Fattah’s criminal conviction for
willfully failing to pay taxes precludes him from asserting that his failure to pay his 2010
taxes was not due to willful neglect—a necessary element for a refund of civil tax
penalties. It further argues that Fattah cannot demonstrate reasonable cause for failing
to file his tax returns and to pay his taxes on time.
Fattah cannot prevail on his claim for a refund of tax penalties.

However,

material factual disputes preclude summary judgment on his claim for damages as a
result of the wrongful disclosure. Therefore, we shall grant the motion in part and deny
1

The United States is the only proper defendant for both causes of action. Section 7431
authorizes a taxpayer to “bring a civil action for damages against the United States” in the event of a
wrongful disclosure. 26 U.S.C. § 7431(a)(1) (emphasis added); see also Mid-South Music Corp. v. Kolak,
745 F.2d 23, 25 (6th Cir. 1984) (“[U]nder 26 U.S.C. § 7431(a)(1) the only proper defendant to such a suit
is the United States.”) (footnote omitted). Similarly, the only proper defendant in a civil action seeking a
tax refund is the United States. See Murphy v. IRS, 493 F.3d 170, 173 (D.C. Cir. 2007) (“Insofar as the
Congress in 28 U.S.C. § 1346(a)(1) has waived sovereign immunity with respect to suits for tax refunds,
that provision specifically contemplates only actions against the ‘United States.’”). The IRS, as an agency
of the United States, cannot be sued eo nomine absent the express consent of Congress. See Blackmar
v. Guerre, 342 U.S. 512, 514–15 (1952).

it in part.
Background
The claim for wrongful disclosure arises from events surrounding the execution of
search warrants in connection with an Internal Revenue Service criminal investigation of
Fattah.

In the pre-dawn of February 29, 2012, federal agents executed a search

warrant at Fattah’s home where they encountered members of the press.2 Later that
morning, they served search warrants at his office at Shulick Law Offices and at a
school where he provided consulting services.3 Two IRS agents served Fattah with
subpoenas directed to the “Custodian of Records” for companies he owned, 259
Strategies, LLC and Legal Marketing Strategies, LLC.4 The IRS agents questioned
Fattah about unpaid tax liabilities, specifically asking “if any payments had been made
on the 2010 tax year’s income tax liability.”5
By 11:52 A.M., Philly.com published a news article and photographs reporting
that the IRS was investigating Fattah’s company, 259 Strategies.6

It reported that

“[a]gents from the FBI and U.S. Treasury Department served two search warrants . . .
for Fattah’s records,” and they “seized Fattah’s records and a computer” from his office.7
A print version of this story ran in The Philadelphia Inquirer the following day.8 Press
2

Pl.’s Reply to Defs.’ Mot., & Br., to Dismiss Claims & for Summ. J., Ex. 2 (Doc. No. 15-6).

3

Am. Compl. (Doc. No. 11) ¶ 10; Stmt. of Undisputed Facts (Doc. No. 46-2) ¶ 33 (citing Am.
Compl. ¶¶ 10, 42, 45, 59; and Shulick Dep. at 23:2–6).
4

Pl.’s Reply to Defs.’ Mot., & Br., to Dismiss Claims & for Summ. J., Ex. 1 (Doc. No. 15-5); Am.
Compl. ¶ 79.
5

Am. Compl. ¶ 11.

6

Am. Compl. ¶ 26; Pl.’s Reply to Defs.’ Mot., & Br., to Dismiss Claims & for Summ. J., Ex. 2.

7

Am. Compl., Ex. 2 at 1.

8

Am. Compl. ¶ 26.
2

photographs show federal agents outside Fattah’s home and Shulick Law Offices.9
Several other news outlets reported similar versions of the story. 10 The Washington
Times published an article under the headline “Lawmaker’s son target of federal
search,” in which Shauna Frye, an IRS spokesperson, was quoted as saying that “IRS
criminal investigators were at the Residences at the Ritz-Carlton . . . on official
business.”11
At the time of the searches, Legal Marketing Strategies had a contract to manage
marketing and development for Shulick Law Offices, Delaware Valley High School
(DVHS), and the Judith B. Shulick Memorial Foundation.12 Under the contract, Shulick
Law Offices paid Legal Marketing Strategies $12,000 per month.13 Previously, 259
Strategies had a contract to provide management consulting services to DVHS.14
DVHS had terminated the contract in the summer of 2011 after Fattah was “caught
committing gross malfeasance,” including using company funds for improper
purposes.15 Shulick Law Offices then entered into the contract with Legal Marketing
Strategies, a company owned by the same person who owned the company whose
9

Am. Compl., Ex. 1 (Doc. No. 11-1).

10

Am. Compl. ¶¶ 48–49. Fattah lists twelve websites on which he claims news articles remained
as of the date of his filing. Am. Compl. ¶ 48. He cites to this “small, but by no means exhaustive list” of
news articles in support of his “estimate[]” that between twenty-five and 100 news stories were published
as a result of defendants allegedly notifying the Philly.com photographers about federal authorities’ visits
to Fattah’s residence and business office. Am. Compl. ¶ 49. Fattah attached two of these news articles
as exhibits to his amended complaint. The first is a printout of the March 1, 2012 Philly.com story. Am.
Compl., Ex. 2. The second is a printout of a story that ran on the website for The Washington Times on
February 29, 2012. Am. Compl., Ex. 3.
11

Am. Compl. Ex. 3 (Doc. No. 11-3) at 2.

12

Mot. for Summ. J., Ex. 210 (Doc. No. 46-18).

13

Mot. for Summ. J., Ex. 210 ¶ 2.

14

Mot. for Summ. J., Ex. 209 (Doc. No. 46-17).

15

Mot. for Summ. J., Ex. 211 (Doc. No. 46-19) (“Shulick Dep.”) at 9:1–25, 61:8–25.
3

contract had been terminated for malfeasance just months earlier.16
At 11:22 A.M., before news coverage began, David T. Shulick, owner of Shulick
Law Offices, dictated an email to Fattah, informing him that the search at the office
appeared to relate to him.17 He instructed Fattah not to contact anyone in his company
until he explained to him in writing the nature of the investigation. Shulick stated, “As far
as this company is concerned you are still employed, and at 1 PM you David, Mark, Ann
and Cherie are expected to be discussing pipeline work.”18 Fattah did not show for the
meeting.19 Fattah stated in his deposition that, after news of the searches broke, he
spoke by phone with Shulick, who told him “not to go [to the 1:00 P.M. meeting], not to
go to his office or contact anybody by the company, not to go to any location.”20 In his
deposition, Shulick denied the phone call occurred.21 Instead, he testified that Fattah
never returned to work and he never heard from him after the search.22
On February 21, 2014, Fattah, proceeding pro se and in forma pauperis, filed this
action. In his original complaint, Fattah alleged that the United States and the IRS
violated 26 U.S.C. § 6304(a) by arriving at his residence before 8:00 A.M., violated 26
U.S.C. § 6304(a)(2) by failing to contact his legal counsel even though he had a valid
Form 2848 on file with the IRS, and violated § 6304(b) by “contacting members of the

16

Mot. for Summ. J., Ex. 210.

17

Mot. for Summ. J., Ex. 212 (Doc. No. 46-20).

18

Mot. for Summ. J., Ex. 212.

19

Mot. for Summ. J. Ex. 201A (Doc. No. 46-8) (“Fattah Dep. pt. 1”) at 187:16–18; Shulick Dep. at

29:15–16.
20

Fattah Dep. pt. 1 at 187:16–18.

21

Shulick Dep. at 26:10–11.

22

Shulick Dep. at 26:10–11, 29:15–16.
4

media prior to, and after the visit to Plaintiff’s residence.”23 He also sought a refund of
tax penalties.24 On March 25, 2014, Fattah filed an amended complaint adding claims
for violations of Section 7431 and the Privacy Act, both related to the disclosure of
information to the media.25
The defendants moved to dismiss Fattah’s Section 7431, Section 7433, and
Privacy Act claims and moved for summary judgment on Fattah’s claim for a refund of
tax penalties. We granted the motion to dismiss in part and denied it in part, and we
denied the summary judgment motion. We dismissed the Privacy Act and the Section
7433 claims. Fattah’s Section 7431 claim for wrongful disclosure and his claim for a
refund of tax penalties survived.
Fattah was indicted on July 29, 2014, six months after he filed this action and
more than two years after the execution of the searches. On September 11, 2014, we
stayed this case pending the conclusion of the criminal case.26 On November 5, 2015,
Fattah was convicted of twenty-two criminal counts, including a willful failure to pay his
2010 taxes in violation of 26 U.S.C. § 7203.27

23

Compl. ¶¶ 10–11, 29 (Doc. No. 5).

24

Compl. ¶¶ 1, 21–22.

25

On February 2, 2016, Fattah was

Am. Compl.

26

United States v. Fattah, Crim. No. 14-409. Upon conclusion of the criminal case, we issued a
Scheduling Order. Scheduling Order (Doc. No. 32). The Order was amended three times to extend
deadlines. See Am. Scheduling Order (Doc. No. 44); 2d Am. Scheduling Order (Doc. No. 47); Order
(Doc. No. 54). The first extension granted the government’s request to extend deadlines by sixty days to
complete discovery. Am. Scheduling Order. The last two extensions were requested by Fattah, the first
extending deadlines by an additional ninety days, 2d Am. Scheduling Order, and the second granting
Fattah an additional ten days to respond to the motion for summary judgment, Order (Doc No. 54).
27

Verdict Form (Doc. No. 234) at 7, United States v. Fattah, Crim. No. 14-409 (filed Nov. 5,

2015).
5

sentenced to five years in prison and ordered to pay over $1,000,000 in restitution.28
The parties conducted discovery. Now, the United States moves for summary
judgment on Fattah’s remaining claims under Section 7431 and for a refund of tax
penalties.
Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and [that] the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). Judgment will be entered against a party who fails to
sufficiently establish any element essential to that party’s case and who bears the
ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In examining the motion, we must draw all reasonable inferences in the nonmovant’s
favor. Young v. Martin, 801 F.3d 172, 177 (3d Cir. 2015). Disagreements over what
inferences may be drawn from the facts, even undisputed ones, preclude summary
judgment.

C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005).

Credibility determinations, the drawing of legitimate inferences from facts, and the
weighing of evidence are matters left to the jury. Post v. St. Paul Travelers Ins. Co.,
691 F.3d 500, 514 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)).
Although Fattah has responded to the United States’s motion, he has not filed a
Statement of Disputed Facts contesting the government’s Statement of Undisputed
Facts.29 Without addressing each numbered paragraph of the Statement of Undisputed
28

Judgment (Doc. No. 254) at 2, United States v. Fattah, Crim. No. 14-409 (filed Feb. 2, 2016).

29

2d Am. Scheduling Order ¶¶ 1(b), (c); see also Order (Doc. No. 54) ¶ 2 (“All remaining
deadlines set forth in the Second Amended Scheduling Order shall remain in full force and effect.”).
6

Facts and presenting controverting facts,30 he simply states that they “are disputed.”31
The Scheduling Order warned the parties that “[a]ll material facts set forth in the
Statement of Undisputed Facts served by the movant shall be deemed undisputed
unless specifically controverted by the opposing party.”32
Pro se litigants must comply with scheduling orders. Their pro se status does not
excuse non-compliance. Hurst v. City of Rehoboth Beach, 288 F. App’x 20, 25 (3d Cir.
2008) (“Hurst represented himself, so he bore the responsibility for the failures to meet
scheduling orders and to respond to discovery requests and comply with a discovery
order.”) (citing Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir. 2002)). When the
nonmoving party fails to file a response within the specified time, he “waives the right to
respond to or to controvert the facts asserted in the summary judgment motion.”
Reynolds v. Rick’s Mushroom Serv., Inc., 246 F. Supp. 2d 449, 453 (E.D. Pa. 2003)
(quoting Reed v. Nellcor Puritan Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002); and
citing Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 F.2d 168, 175–76 (3d Cir.
1990)). Nevertheless, summary judgment cannot be granted as unopposed where the
nonmoving party did not file a response. Even though the material facts are deemed
true, the moving party still must demonstrate that it is entitled to judgment as a matter of
law. Anchorage Assocs., 922 F.2d at 179; Reed, 312 F.3d at 1195.
Analysis
Refund of Penalties
The IRS assessed penalties against Fattah for his failures to file and pay his
30

See 2d Am. Scheduling Order ¶ 1(b).

31

Resp. (Doc. No. 55) at 13.

32

2d Am. Scheduling Order ¶ 1(c).
7

2007 and 2010 taxes on time. Fattah filed his 2007 tax return on October 15, 2012,
more than four years after it was due.33 The IRS applied a tax credit from his 2011
taxes to pay his 2007 taxes and associated penalties and interest. 34 He filed his 2010
tax return on December 26, 2011, but had not filed for an extension.35 He paid his 2010
taxes and associated penalties and interest on April 26, 2012, more than a year late.36
Fattah now seeks refunds of the penalties assessed against him.
Civil penalties must be assessed against a taxpayer for failing to file a required
tax return or for failing to pay a tax on time unless the taxpayer shows that the failure
was due to reasonable cause and not due to willful neglect. 26 U.S.C. §§ 6651(a)(1),
(2). To excuse a failure-to-file, the taxpayer’s burden is a heavy one. United States v.
Boyle, 469 U.S. 241, 245 (1985). A failure-to-pay and a failure-to-file are treated the
same. E. Wind Indus., Inc. v. United States, 196 F.3d 499, 504 & n.5 (3d Cir. 1999).
Thus, to prevail on his claim for a refund of the penalties, Fattah must demonstrate that
his failures to file and to pay were not the result of willful neglect and he had reasonable
cause.
The United States argues that Fattah’s conviction for failing to pay his 2010 taxes
precludes him from asserting he was not willfully neglectful in failing to file and pay his
taxes that year. On November 5, 2015, Fattah was convicted of willfully failing to pay
his 2010 taxes under 26 U.S.C. § 7203. He was not charged with willful failure to file or
pay his 2007 taxes or willful failure to file his 2010 taxes.
33

Mot. for Summ. J. Ex. 104 (Doc. No. 46-6) at 1.

34

Id. at 2.

35

Mot. for Summ. J. Ex. 105 (Doc. No. 46-8).

36

Id.
8

“[O]nce an issue is actually and necessarily determined by a court of competent
jurisdiction, that determination is conclusive in subsequent suits based on a different
cause of action involving a party to the prior litigation.” Anderson v. Comm’r, 698 F.3d
160, 164 (3d Cir. 2012) (quoting Montana v. United States, 440 U.S. 147, 153–54
(1979)). Preclusion applies only if four conditions are met: (1) the issue decided in the
prior action is the same as the one presented; (2) the issue was actually litigated; (3) it
was determined by a final judgment; and (4) the determination of the issue was
essential to the prior judgment. Anderson, 698 F.3d at 164.
Section 7203 provides:
Any person required under this title to pay any estimated tax or tax, or
required by this title or by regulations made under authority thereof to
make a return, keep any records, or supply any information, who willfully
fails to pay such estimated tax or tax, make such return, keep such
records, or supply such information, at the time or times required by law or
regulations, shall, in addition to other penalties provided by law, be guilty
of a misdemeanor and, upon conviction thereof, shall be fined not more
than $25,000 ($100,000 in the case of a corporation), or imprisoned not
more than 1 year, or both, together with the costs of prosecution.
26 U.S.C. § 7203 (emphasis added).
Willfulness is an essential element of the offense of failure to pay taxes under
Section 7203. To prove willfulness in a criminal case, the government must prove that
the defendant’s failure was “a voluntary, intentional violation of a known legal duty.”
United States v. Pomponio, 429 U.S. 10, 12 (1976). Willful neglect in a civil failure-topay case is defined as “a conscious, intentional failure or reckless indifference.” E.
Wind Indus., 196 F.3d at 504.

A criminal conviction for violation of Section 7203

establishes willfulness in a subsequent civil tax suit. Cf. Anderson, 698 F.3d at 164 (in
fraud and tax evasion context).

9

Fattah’s criminal conviction for failure to pay his 2010 taxes precludes him from
claiming that his failure to pay his 2010 taxes was not willful. The four conditions for
issue preclusion are met: (1) willfulness was an issue in the criminal case; (2) it was
actually litigated; (3) a jury found him guilty of willfully failing to pay his taxes; and (4)
willfulness was a required element for conviction under 26 U.S.C. § 7203. Because
Fattah is precluded from contesting that his failure to pay his 2010 taxes was willful, he
cannot succeed on his claim for a refund of civil penalties for failing to pay his 2010
taxes.
Although Fattah is precluded from asserting that his failure to pay his 2010 taxes
was not willful, his conviction does not preclude him from claiming that his failure to file
his 2007 and 2010 returns and to pay his 2007 taxes on time was not willful. Hence, we
shall address those failures.
Reasonable Cause
To qualify for a refund of penalties, the taxpayer must demonstrate that he was
unable to timely file his tax returns or pay his taxes on time despite having exercised
ordinary business care and prudence. With respect to a failure to timely pay, he must
also show that he was unable to pay the tax or that he would have suffered an undue
hardship if he paid them. E. Wind Indus., 196 F.3d at 509.
Under IRS regulations, reasonable cause exists where
the taxpayer exercised ordinary business care and prudence and was
nevertheless unable to file the return within the prescribed time . . . . A
failure to pay will be considered to be due to reasonable cause to the
extent that the taxpayer has made a satisfactory showing that he
exercised ordinary business care and prudence in providing for payment
of his tax liability and was nevertheless either unable to pay the tax or
would suffer an undue hardship . . . if he paid on the due date.

10

Treas. Reg. § 301.6651-1(c)(1).
Fattah has given conflicting reasons for failing to meet the 2007 tax filing
deadline. In his request for a refund, he wrote that he “was under the impression that
he did not have a liability in 2007.”37 Asked in his deposition why he did not file in 2007,
he stated, “I wasn’t thinking about it. I mean honestly just the thought never crossed my
mind. . . . I ultimately thought I had a duty to file, but I didn’t think there was any penalty
for not filing at that time. People file late as far as I know.” 38 He later added, “I also
firmly believed that my expenses offset my income so that there’s no – there may be no
taxable income to file a return based on that. . . . My understanding was you have to file
a return if you have a higher than a certain income.”39
Fattah’s

excuse

is

based

upon

his

nonchalance

and

proclaimed

misunderstanding. A mere belief that no tax was due, without more, is not reasonable
cause for a failure to file. See Estate of Thouron, 752 F.3d 311, 315 (3d Cir. 2014); see
also In re Rosemiller, 188 B.R. 129, 139 (Bankr. D.N.J. 1995).
Fattah owed taxes for 2007. When he ultimately filed his 2007 tax return more
than four years after it was due, it showed $27,035 adjusted gross income and a $6,211
tax liability for the year.40 The IRS applied a tax credit from his 2011 taxes against his
2007 taxes and associated penalties and interest.41
As we have noted, Fattah gave conflicting excuses for not filing his 2007 tax
37

Mot. for Summ. J. Ex. 101 (Doc. No. 46-3) at ECF 2.

38

Fattah Dep. pt. 1 at 142:18–19, 142:25–143:3.

39

Id. at 145:16–21.

40

Mot. for Summ. J. Ex. 104 at 1.

41

Id. at 2.
11

return on time. On one hand, he stated that he was not “thinking about it.” On the
other, he believed he did not have to file because he did not meet an income threshold.
Either reason demonstrates that Fattah did not act with ordinary business care and
prudence when he failed to timely file his 2007 tax return.
Fattah also claims that, with respect to his 2007 taxes, he “was told that he was
getting a refund and would not be penalized for late filing if a refund is due.” 42 This
advice came long after the tax deadline. In his deposition, he testified that it was the
Taxpayer Advocate Service that advised him that he was “eligible” for a refund of his
2007 taxes.43 He did not file a request for Taxpayer Advocate Service assistance until
October 28, 2013, more than five and a half years after his 2007 tax return was due. 44
He did not contact an accountant about his 2007 taxes until November 2010, more than
two and a half years after his 2007 tax return was due. 45

He cannot rely on these

sources, whom he contacted long after the filing deadline, as justification for his failure
to file a timely return.
With respect to his failure to file his 2010 tax return, Fattah claimed in his request
for abatement that he “relied on his previous accountant to file an extension to file his
2010 tax return as well as file his tax return timely.”46 But, the accountant did not give
Fattah his tax returns to file because Fattah never paid him.47 Instead, the accountant

42

Mot. for Summ. J. Ex. 101 at ECF 2.

43

Fattah Dep. pt. 1 at 157:4–5.

44

Pl.’s Reply to Defs.’ Mot., & Br., to Dismiss Claims & for Summ. J. Ex. 14 (Doc. No. 15-18).

45

Fattah Dep. pt. 1 at 155:7–10.

46

Mot. for Summ. J. Ex. 101 at ECF 2.

47

Mot. for Summ. J. Ex. 103 (Doc. No. 46-5) at ECF 2.
12

prepared extensions, which Fattah did not file.48
A taxpayer’s duty to file a timely tax return is nondelegable. Reliance on an
agent does not excuse an untimely filing. Boyle, 469 U.S. at 248, 252. In other words,
a taxpayer may rely on the advice of an attorney or accountant in preparing his tax
return, but he alone is responsible for meeting the filing deadline. Id. at 251; see also
Thouron, 752 F.3d at 314–15 (applying Boyle to failure-to-pay case).
Fattah’s alleged reliance on his accountant is not an acceptable excuse. It was
Fattah’s, not his accountant’s, duty to ensure that his tax return was timely filed. Fattah
had no reasonable cause for his failure to file his 2010 tax return.
Nor did Fattah have reasonable cause to excuse his failure to pay his 2007
taxes. He must show both that he acted with ordinary business care and prudence, and
he would have suffered an undue hardship. Treas. Reg. § 301.6651-1(c)(1); E. Wind
Indus., 196 F.3d at 509. In determining whether Fattah acted with ordinary business
care and prudence, we consider the facts and circumstances bearing on his financial
situation. E. Wind Indus., 196 F.3d at 510 & n.10.
Fattah had hired accountants and lawyers for his taxes in 2002, 2003, and
2004.49

He did not seek the advice of an accountant about his 2007 taxes until

approximately November 2010, more than two and a half years after his 2007 tax
returns had been due.50

He then waited another year and a half to file his 2007 tax

return on July 17, 2012.51 He claimed, without proffering any evidence to support his
48

Mot. for Summ. J. Ex. 203 (Doc. No. 46-11).

49

Fattah Dep. pt. 1 at 155:17–24.

50

Fattah Dep. pt. 1 at 155:7–10.

51

Mot. for Summ. J. Ex. 104.
13

contention, that he did not believe he owed any tax liability. Indeed, the evidence is to
the contrary. When he did file his 2007 tax return, it showed a $27,035 adjusted gross
income and a $6,211 tax liability for the year.

He has not identified any person

conversant with tax accounting and tax law who advised him that he had no tax liability
or did not need to file a return. See Thouron, 752 F.3d at 315. Hence, he has failed to
meet his heavy burden for a refund of his civil penalties.
Even if Fattah could show that he acted with ordinary business care and
prudence, he still could not show undue hardship. He claimed that he had reasonable
cause not to file or pay “based on an inability to pay.” 52 He has not offered any support
for his statement.53
Fattah contests the United States’s motion by insisting that we have already held
that it is not entitled to summary judgment on his refund claims. We did not reach the
merits of Fattah’s refund claim. The decision was based on the government’s argument
that we lacked jurisdiction because Fattah filed his civil action before waiting six months
after filing his refund claim with the IRS. The Internal Revenue Code requires that a
taxpayer must first make a claim for a refund or credit to the IRS, 26 U.S.C. § 7422(a),
and wait six months for the IRS to decide the claim before filing suit, id. § 6532(a)(1).
Only if the IRS decides the claim before the six-month period runs may the taxpayer
commence an action.

Id.

Because the government did not contradict Fattah’s

contention that the IRS had “rendered a decision” on the refund claim before he filed his
action, we denied summary judgment.54
52

Fattah Dep. pt. 1 at 143:11–13.

53

E.g., Mot. for Summ. J. Exs. 101, 102.

54

The disputed material fact that precluded

Mem. Op. (Doc. No. 22) at 27–28.
14

summary judgment was whether the IRS had rendered a decision within the mandatory
six-month waiting period.
Fattah, despite having been warned that the United States’s statement of
undisputed material facts would be deemed admitted unless disputed, has not
contradicted any facts stated by the government regarding the refund claim.
Nevertheless, we have considered the entire record in the light most favorable to Fattah
and have drawn all reasonable inferences in his favor. Still, there is no real dispute of
material facts and the government is entitled to judgment as a matter of law on the
refund claims.
Damages for Wrongful Disclosure
Section 6103 proscribes the disclosure of any tax or tax return information by any
United States officer or other person with access to tax returns obtained by him in any
manner in the course of his or her employment, “or otherwise or under the provisions of
[Section 6103].” 26 U.S.C. § 6103(a). A taxpayer may bring a civil action for damages
arising from the prohibited disclosure of his tax information in violation of Section 6103.
See id. § 7431.
Liability for wrongful disclosure is not disputed.

Damages are.

The United

States concedes that a wrongful disclosure of return information occurred on February
29, 2012. It argues that Fattah cannot prove actual or punitive damages.
Section 7431 provides that, upon a wrongful disclosure, a defendant is liable for
damages in the amount of the greater of either (1) $1,000 for each unauthorized
disclosure, or (2) “actual damages sustained by the plaintiff as a result of such
unauthorized . . . disclosure, plus . . . in the case of a willful . . . disclosure or a[] . . .

15

disclosure which is the result of gross negligence, punitive damages.” Id. § 7431(c)(1).
Fattah claims $5,224,667 in actual damages.
economic damages.

He seeks over $1,000,000 in

Specifically, he seeks damages for projected gross business

income in 2012, 2013, and 2014, the three full calendar years from the 2012 wrongful
disclosure to his 2014 indictment; annual health insurance benefits for 2012, 2013, and
2014; legal fees “related to new business”; “business planning fees”; lost tuition fees;
and lost capital gains on a condominium he intended to purchase. He also claims
$4,000,000 in non-economic damages for loss of reputation.55 In addition, Fattah asks
for punitive damages.
Fattah must prove that his damages were the result of the disclosure. He must
show that the claimed damages were the actual and proximate cause of the disclosure.
Nat’l Org. for Marriage, Inc. v. United States, 24 F. Supp. 3d 518, 529 (E.D. Va. 2014);
Jones v. United States, 9 F. Supp. 2d 1119, 1137 (D. Neb. 1998); see also Paroline v.
United States, 134 S. Ct. 1710, 1719 (2014). Thus, he must demonstrate that the
damages would not have occurred but-for the disclosure, and the harm was foreseeable
and within the scope of the risk created by the disclosure. See Paroline, 134 S. Ct. at
1719.
Actual Damages
Fattah contends that, as a result of the disclosure that he was under
investigation, he was fired from his job with David Shulick. The United States claims he
quit. The parties present competing versions of what happened immediately after the
news of the execution of the search warrants hit the media.

55

Resp. at 11.
16

According to Fattah, Shulick terminated his contracts after media coverage of the
searches.56 Fattah testified that, in a phone call after the news broke, Shulick instructed
him “not to go [to the 1:00 P.M. meeting], not to go to his office or contact anybody by
the company, not to go to any location.”57 Fattah has previously alleged that news
coverage of the searches began with a Philly.com article published at 11:52 A.M.,58
after Shulick dictated the 11:22 A.M. email telling Fattah to report to the 1:00 P.M.
meeting.
The United States contends that Shulick terminated the business relationship
with Fattah because Fattah stopped going to work. According to Shulick, Fattah “never
showed up again” after the execution of the search warrants.59 On the morning of the
search, Shulick sent the 11:22 A.M. email to Fattah, stating, “As far as this company is
concerned you are still employed, and at 1 PM you David, Mark, Ann and Cherie are
expected to be discussing pipeline work.”60
meeting.61

Fattah admits he did not attend the

In his deposition, Shulick stated that he “was bombarded with media

coverage,” but could not remember whether media coverage had started by the time he
dictated the email to Fattah.62
Shulick stated that the searches and media coverage were “irrelevant” to Fattah’s

56

Mot. for Summ. J. Ex. 201B (Doc. No. 46-9) (“Fattah Dep. pt. 2”) at 5:13–6:19.

57

Fattah Dep. pt. 1 at 187:16–18.

58

Am. Compl. ¶ 26; Pl.’s Reply to Defs.’ Mot., & Br., to Dismiss Claims & for Summ. J., Ex. 2.

59

Shulick Dep. at 29:15–16.

60

Mot. for Summ. J., Ex. 212 (Doc. No. 46-20).

61

Fattah Dep. pt. 1 at 187:16.

62

Shulick Dep. at 27:10–11, 27:25–28:3, 29:22–24.
17

termination.63 He stated that he “never heard from Mr. Fattah again after the raid.”64
These conflicting versions of why and how Fattah’s business relationship with
Shulick ended preclude summary judgment on the issue of Fattah’s actual damages.
Resolution of the conflict turns on a credibility determination to be made by the fact
finder.
At this stage, we cannot conclude that Fattah will be unable to prove noneconomic damages, such as damages for loss of reputation. He will be given the
opportunity to prove both economic and non-economic damages at trial. Then, if he
does prove non-economic damages, we shall address whether they are recoverable.
Punitive Damages
Fattah also asks for “punitive damages in an amount equal to five times the
actual damages total determined at trial.”65 Section 7431 precludes punitive damages
absent a showing of actual damages. See Siddiqui v. United States, 359 F.3d 1200,
1203–04 (9th Cir. 2004); cf. Snider v. United States, 468 F.3d 500, 510 (8th Cir. 2006)
(precluding punitive damages with an award of Section 7431 statutory damages). The
statute provides for actual damages “plus” punitive damages, suggesting that an award
of punitive damages is in addition to actual damages. See 26 U.S.C. § 7431(c)(1)(B).
Fattah is not entitled to punitive damages until he shows actual damages.

He

has not yet done so. If he proves actual damages, he must then demonstrate that the
wrongful disclosure was willful or the result of gross negligence before he can recover
punitive damages. 26 U.S.C. § 7431(c)(1)(B); see also Minda v. United States, 851
63

Shulick Dep. at 28:21–22.

64

Shulick Dep. at 26:10–11.

65

Resp. at 11.
18

F.3d 231, 237–38 (2d Cir. 2017). Because Fattah may still prove economic damages
and may be able to show that the disclosure was willful or grossly negligent, we shall
deny the United States’s motion for summary judgment with respect to punitive
damages.
Conclusion
We shall grant the United States’s motion in part and deny it in part. We shall
grant summary judgment on Fattah’s claims for refund of tax penalties. But, we shall
deny summary judgment on Fattah’s claims for damages as a result of the wrongful
disclosure.

/s/ Timothy J. Savage______________
TIMOTHY J. SAVAGE, J.

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