Complaint Filed After Phone Call With IRS Agent Is Broadcast Live on Popular Radio Show

(Parker Tax Publishing June 2017)

A taxpayer, who called the IRS to discuss a tax matter, had her phone conversation with an IRS agent broadcast for more than 45 minutes over the Howard Stern Show radio program. She filed suit in a district court alleging violations of Code Sec. 7431 and 6103 and seeking damages for the disclosure of confidential information. Barrigas v. U.S., 2017 PTC 210 (D. Mass. 2017)

Howard Stern is public figure radio personality and the host of a popular radio show which airs on SiriusXM satellite radio. The Howard Stern Show has approximately 1,200,000 regular listeners each day.

On the morning of May 19, 2015, Judith Barrigas called the IRS's service center to discuss the possible misapplication of her 2014 tax refund. The IRS had applied her refund to a 2011 and 2012 tax liability which had already been the subject of a repayment agreement. When Barrigas called the IRS that morning, she was connected with Agent Jimmy Forsythe. Barrigas spent nearly 45 minutes discussing the case with Agent Forsythe. The discussion between Barrigas and Agent Forsythe included, but was not limited to, mention of Barrigas's phone number, the tax return and refund issues, and the details of the repayment plan for the 2011 and 2012 tax liability due.

While on the phone with Agent Forsythe, Barrigas suddenly began to receive a barrage of text messages and phone calls from unknown individuals. The text messages were informing Barrigas that her personal information and phone number was being aired live on the Howard Stern Show.

Unbeknownst to Barrigas, Agent Forsythe had called in to the Howard Stern Show as a listener. Agent Forsythe had been on hold with the show using another phone line during his call with Barrigas. While Agent Forsythe discussed Barrigas's private tax matter with her, Howard Stern and other agents of the Howard Stern Show picked up Agent Forsythe's call and aired the discussion between Agent Forsythe and Barrigas live on satellite radio. The IRS, Howard Stern, and the Howard Stern Show, therefore, broadcast Barrigas's private tax return information and her identity to approximately 1,200,000 listeners.

Barrigas filed a complaint against the IRS, Howard Stern, and the Howard Stern Show (the defendants) in a Massachusetts district court seeking compensatory damages, punitive damages, reasonable attorneys' fees, statutory interest, and the costs of the lawsuit, as well as other such relief as the court deems just and proper. According to the complaint, the defendants conduct was a clear violation of Code Sec. 7431, relating to the unauthorized disclosure of returns information, and Code Sec. 6103, which provides that return information must be kept confidential.

The complaint alleges that the defendants owed Barrigas a duty of reasonable care and had a duty to refrain from publicly disseminating private tax and identity information of a private citizen. According to the compliant, the defendants engaged in reckless and negligent publication of Barrigas's personal identification, tax liability, and return information by airing the information publicly on the Howard Stern Show.

The complaint goes on to say that Howard Stern stated expressly on the air that the conversation involved a tax collector and was of a personal nature and was not what the caller had intended, yet failed to take any action to stop the broadcast. According to the complaint, Howard Stern and the Howard Stern Show joked about the publication and broadcast of Barrigas's tax and personal information and conversation with the IRS's Agent Forsythe and used the broadcast and the humiliation of Barrigas as a source of amusement for their listeners. To this day, the complaint alleges, Barrigas's phone call with Agent Forsythe may be accessed on the internet in full or in part and thus continues to be publicly broadcast.

For a discussion of penalties relating to the unauthorized disclosure of tax return information, see Parker Tax ¶265,153.

Disclaimer: This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change. Parker Tax Publishing guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. Parker Tax Publishing assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein.

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