Fourth Circuit agrees with Wheeling federal judge

By John O'Brien | Dec 11, 2012


RICHMOND, Va. – The U.S. Court of Appeals for the Fourth Circuit has affirmed a ruling made by a West Virginia federal judge in a lawsuit brought by a man who was under investigation by the IRS.

The court ruled Dec. 5 against Francis Tucker, who claimed IRS agents made unlawful disclosures of his federal income tax return information to third parties while investigating him for tax evasion.

U.S. District Judge Frederick Stamp, of Wheeling, had ruled earlier this year that Tucker failed to prove his allegations against agents Brad Nickerson and Ryan Korner.

“Having reviewed the parties’ briefs and the record before us, we perceive no basis on which to overturn the district court’s judgment with respect to Tucker’s allegations tried pursuant to a bench trial,” a three-judge panel wrote.

“In this regard, we defer to the district court’s findings of fact – premised in large part on witness credibility determinations – that agents Nickerson and Korner did not disclose return information with respect to Tucker…”

The IRS initiated its investigation against Tucker in 2007 in an effort to determine if he had evaded payment of income taxes from 2002-07.

The investigation centered on whether he was withdrawing money from his businesses and not reporting that money on his personal income tax returns. Tucker owned Ohio Valley Amusement Company and Mound City, Inc., during the years in question.

During their investigation, Nickerson and Korner interviewed Tucker, brother Tommy Tucker, friend Greg George, then-wife Donetta LaRue, ex-wife Cathy West, former brother-in-law Thomas West and son Gary Tucker.

Tommy alleged Nickerson told him, “Francis was going to jail for tax evasion.” Cathy West testified the agents said “if they were able to prove these things, that he would go to jail for it because they felt that he wasn’t paying enough income tax.”

LaRue testified, “They said – they said something to the effect, he is probably looking at serving some time or he is – they didn’t – I don’t think they used the word jail, but they said he is looking at serving some time.”

The agents responded that using the word “jail” during an interview would not be helpful because it would cause the subject to watch his or her words more carefully.

George said the agents told him, “We are here to talk about putting Mr. Tucker in jail.”

Stamp ruled some evidence that the IRS agents told third-party witnesses that Tucker was under a grand jury investigation was untimely. The allegations were never made in the complaint, Stamp wrote, and Tucker never sought to amend his complaint.

Stamp also granted summary judgment in favor of the government over the allegation Korner told Gary Tucker that “he didn’t see any reason why he should go up the river for something somebody else did.”

The Fourth Circuit wrote, “We agree with the district court that the alleged ‘up the river’ comment did not constitute a disclosure of Tucker’s return information.”

The civil lawsuit was stayed while the criminal issue against Tucker was resolved. According to Stamp’s findings of fact issued March 29, the IRS has discontinued the investigation.

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