How private is your personal information relating to tax matters? In a new case, Barrigas, Civil Action No. 17-cv-10232-ADB, DC-MA, 3/9/18, part of a taxpayer’s phone conversation with an IRS agent was broadcast live on the Sirius radio show of Howard Stern, the renowned “shock jock.” A district court in Massachusetts has thrown out the taxpayer’s case against Stern, but the IRS may have acted improperly over the disclosure of the taxpayer's phone number.
Here are the main facts. On May 19, 2015, the taxpayer called an IRS customer service center to discuss whether her tax refund for the 2014 tax year had been incorrectly applied toward her 2011 and 2012 tax liability, which was already subject to a repayment agreement. The call was routed to an IRS customer service agent, who, unbeknownst to the taxpayer, had been on hold with the Howard Stern Show on another telephone line.
At some point during the conversation with the taxpayer, the Stern show took the agent off hold. Apparently unaware that he was on the air, the agent continued to speak to the taxpayer concerning her tax liability and repayment plan. Toward the end of the conversation, the agent mentioned the taxpayer’s telephone number.
However, the segment that was broadcast on the Stern show only captured the IRS agent’s side of the conversation with the taxpayer. Neither her voice nor her statements were audible. Although the call lasted approximately 45 minutes, only about three minutes of their conversation was aired.
The taxpayer didn’t realize that the IRS agent was on another line with the Stern show until she began receiving text messages and telephone calls from strangers she claimed were “harassing in nature.” She reported the incident to the IRS and to the Howard Stern Show, but the IRS only took action after she contacted a local news station. The Stern show didn’t respond to her communications about the incident and a recording of the broadcast was allegedly available on its website for several weeks.
In her lawsuit, the taxpayer says she has suffered tremendous anxiety, has difficulty sleeping and eating and has sought medical treatment as a result of the incident. She also asserts that the broadcast has detrimentally affected her ability to find employment in her field of business and consulting.
While assessing the charge against Stern, the district court judge first noted that it wasn't clear that he disseminated her tax information intentionally. Second, even assuming it was intentional, the taxpayer hasn’t plausibly alleged an unreasonable, substantial or serious intrusion into highly personal information. The judge said that the tax information that was disclosed was "imprecise and only roughly identifiable with a particular individual."
The taxpayer’s name, Social Security number, address and other identifying information weren't disclosed. Nor did Stern's audience hear the sound of her voice. The only thing that might possibly identify her was disclosure of her telephone number, which is publicly listed.
The main question is whether the Stern show’s conduct is related to the assessment or collection of taxes. The judge ruled that any potential connection was extremely remote and thus dismissed the privacy and negligence claims against both Stern and the IRS. However, the case against the government will be allowed to proceed concerning an improper disclosure of information.
Ken Berry, Esq., is a nationally known writer and editor specializing in tax, financial, and legal matters. During his long career, he has served as managing editor of a publisher of content-based marketing tools and vice president of an online continuing education company. As a freelance writer, Ken has authored thousands of articles for a...