This post was originally published on Forbes Mar 17, 2015The decision by the US District Court for the Northern District of Indiana in the case of James Simon et. al. v Special Agent Paul Muschell et. al. brings back a tragic story. On November 6, 2007, IRS special agents, led by Paul Muschell searched the home of James and Denise Simon. Three days later, Denise committed suicide. She left several notes. The note to her husband read:
I want to know that I have always totally loved you. I know you are the most trustworthy person I have ever met. I wish I had strength to stay by your side and fight these terrible accusations, but I am not strong like you. I know you believe in the legal system, but I do not. If there is any afterlife, you can be sure I will be watching over you.
I love you from the bottom of my heart. I would have enjoyed growing old with you, but that is not to be my journey. Please take care of the children. They will need you.
As a result of defendant's investigation into the Simons and the subsequent search of the Simons' home, plaintiff filed the current suit against defendant, alleging intentional infliction of emotional distress, negligent infliction of emotional distress, negligence in obtaining the search warrant, negligence in executing the search warrant, trespass, invasion of privacy, and wrongful death.
The government does not now disagree with the general proposition that a partner is taxed on distributions removed from a partnership only to the extent that the distributions exceed the partner’s adjustedbasis inthepartnership. 26U.S.C. §731(a). In reviewing the written and oral exchanges at trial surrounding this issue, it is apparent that the district court (against all odds, given the manner in which it was argued) also understood this general legal proposition but simply did not agree that the evidence Simon sought to introduce was relevant to demonstrating his adjusted basis in the partnership.
In response, plaintiffs argue that § 2680(c) does not apply in this case because the investigation into plaintiffs' finances and the IRS agents' search of plaintiffs' home was “purely criminal in nature, and, on its face, devoid of intent or effort to ultimately assess or collect taxes from Mr. Simon.” Plaintiffs go on to argue that § 2680(c) does not apply in this case because the search of plaintiffs' home violated internal IRS policies, and therefore, was not for the purpose of assessing or collecting taxes. Finally, plaintiffs argue that the tort claims brought by R.S. and the Estate of Denise Simon do not arise from the collection or assessment of any taxes.
In this case, the court has no trouble concluding that § 2680(c) bars plaintiffs' claims. Although it is undisputed that the primary focus of defendant's investigation into plaintiffs was criminal in nature (DE # 49 at 2), several aspects of the IRS's investigation into plaintiffs' taxes reveal that the investigation and search of plaintiffs' home, which gave rise to plaintiffs' current claims, arose out of “the assessment or collection of” plaintiffs' taxes. 28 U.S.C. § 2680(c).
First, as plaintiffs' complaint and the affidavit in support of the search warrant issued for plaintiffs' home make clear, the search of plaintiffs' home and the investigation leading up to the search were conducted because the IRS believed that the Simons were evading taxes that plaintiffs owed to the United States government. .....
Furthermore, the investigation into plaintiffs' taxes, the search of plaintiffs' home, and the subsequent prosecution of plaintiff James Simon show that this entire process involved the assessment and collection of plaintiffs' taxes. As noted earlier, as a result of the investigation and search of plaintiffs' home, plaintiff James Simon was convicted of 19 federal offenses, ranging from filing a false federal income tax return to fraud involving federal financial aid. The sentence plaintiff James Simon received at trial was based, in part, on the amount of unpaid taxes that Simon owed to the IRS......
In sum, the court concludes that the investigation into plaintiffs' taxes and the search of plaintiffs' home arose out of “the assessment or collection of” the Simons' taxes. 28 U.S.C. § 2680(c).