Introduction

This appeal presented a targeted question at the intersection of taxpayer privacy and private tort-like misconduct: can a private individual, here an ex-spouse alleged to have forged a power of attorney to obtain tax return information, be sued under 26 U.S.C. § 7431(a)(2) for “unauthorized inspection” if she is not among the classes regulated by 26 U.S.C. § 6103?

Plaintiff-Appellant Robert Winenger alleged that Defendant-Appellee April Martin Lowry forged his signature on IRS Form 2848 (power of attorney), used it to access his 2013 tax return information over the phone, and persuaded the IRS to move $54,000 in estimated tax payments from his account to hers. After other claims fell away, the sole remaining federal claim was brought under § 7431(a)(2) for “unauthorized inspection.”

The district court dismissed that claim on the eve of trial, concluding that § 7431(a)(2) requires a predicate violation of § 6103 or § 6104(c) and that Lowry, as a purely private party, is not subject to § 6103’s disclosure prohibitions. The Eleventh Circuit affirmed, aligning with a broad consensus among federal courts that § 6103 limits disclosure by specified categories of recipients and does not regulate every private actor who might procure tax information.

Summary of the Judgment

• The Eleventh Circuit reviewed de novo and affirmed dismissal for failure to state a claim.
• Section 7431(a)(2) creates a cause of action against non-federal employees only for inspections or disclosures “in violation of any provision of section 6103 or in violation of section 6104(c).”
• Section 6104(c) regulates state officials; it was inapplicable to Lowry.
• Section 6103(a) prohibits disclosure by three enumerated groups: (1) federal officers/employees; (2) certain state/local officials; and (3) “other persons” who obtained access under specified § 6103 provisions.
• Lowry fits none of those groups; therefore, even accepting the facts as pleaded, her alleged inspection/disclosure is not “in violation of § 6103,” as § 6103 does not regulate her conduct.
• Result: Without a predicate violation of § 6103 or § 6104(c), the § 7431(a)(2) claim fails as a matter of law.

Detailed Analysis

Statutory Framework and the Court’s Legal Reasoning

The court’s analysis was textual and structural. Section 7431(a) provides two distinct pathways for civil damages:

• § 7431(a)(1): If a federal officer or employee inspects or discloses return or return information in violation of § 6103, the taxpayer may sue the United States.
• § 7431(a)(2): If a person “who is not an officer or employee of the United States” inspects or discloses return or return information “in violation of any provision of section 6103 or in violation of section 6104(c),” the taxpayer may sue that person.

Accordingly, a § 7431(a)(2) plaintiff must plead a predicate violation of § 6103 or § 6104(c) by the non-federal defendant. The opinion then zeroed in on § 6103(a), which sets out the universe of actors who can violate that section:

1. Federal officers/employees (clearly not Lowry).
2. Certain state/local/tribal officers or employees with access under § 6103 or § 6104(c) (again, not Lowry).
3. Other persons who have or had access to returns/return information under specifically enumerated subsections of § 6103 (e.g., designated recipients via proper consent, certain program administrators, whistleblowers under defined programs, and the like).

The third category—“other persons”—is not a catch-all. It covers private entities or individuals who received tax return information from the IRS under particular statutory authorizations and therefore are bound by § 6103’s disclosure restrictions. The court emphasized that Lowry, a private ex-spouse who was not authorized to receive return information under any enumerated § 6103 provision, does not fall within this set. Thus, there was no § 6103 violation to tether to § 7431(a)(2).

Crucially, the panel rejected the plaintiff’s invitation to recast § 6103 as an exclusive list of those permitted to receive tax information (so that anyone else receiving or “inspecting” it would necessarily violate § 6103). The text of § 6103(a) speaks in prohibitory terms directed at specific categories of custodians/recipients; it does not create a general prohibition applicable to all private persons. As a result, even if Lowry procured an IRS employee’s disclosure through a forged Form 2848, her own conduct is not regulated by § 6103, though the employee’s disclosure might be.

Precedents and Authorities Cited

• Hrubec v. National R.R. Passenger Corp., 49 F.3d 1269 (7th Cir. 1995). The Seventh Circuit observed that § 6103 limits disclosure by those who obtain returns “in the course of public business”—IRS employees, state employees receiving authorized disclosures, and private persons who receive information from the IRS subject to statutory conditions. It “does not forbid disclosure when information comes from other sources.” The Eleventh Circuit used this framing to reinforce that § 6103 targets specific custodians, not the universe of private actors.
• Trump v. Deutsche Bank AG, 943 F.3d 627, 649 (2d Cir. 2019), vacated and remanded on other grounds, 591 U.S. 848 (2020). The Second Circuit agreed with Hrubec: § 6103(a)’s prohibitions are limited to the three categories identified in § 6103(a)(1)–(3). The Eleventh Circuit cited this as a cross-circuit alignment on the scope of § 6103.
• Stokwitz v. United States, 831 F.2d 893 (9th Cir. 1987). The Ninth Circuit emphasized that § 6103 establishes a “comprehensive scheme” for controlling IRS release of taxpayer information to identified parties. It does not regulate all non-IRS government units or private parties who obtain returns through non-IRS channels. This supports the Eleventh Circuit’s narrow reading of § 6103’s reach.
• Lomont v. O’Neill, 285 F.3d 9 (D.C. Cir. 2002) and Baskin v. United States, 135 F.3d 338 (5th Cir. 1998): These decisions likewise cabin § 6103 to its stated categories and purposes, resisting attempts to expand it into a generalized tax-privacy tort against private actors.
• Henderson v. McMurray, 987 F.3d 997 (11th Cir. 2021) and Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008): Cited for the de novo standard governing Rule 12(b)(6) dismissals and statutory interpretation.

How These Precedents Shaped the Decision

The cited cases collectively stand for a common proposition: § 6103 is an access-and-disclosure regime that binds a delineated set of custodians and authorized recipients who receive tax information from the IRS under specific legal pathways. The Eleventh Circuit’s reliance on these authorities underscores that:

• The duty not to disclose (and the correlative liability) is placed on those with authorized access under § 6103, not on all conceivable recipients.
• When a private person outside those categories obtains tax information—whether from the taxpayer directly, from non-IRS government actors, or even allegedly by duping an IRS employee—the private person has not violated § 6103. The violation, if any, lies with the disclosing IRS custodian.
• Consequently, § 7431(a)(2) liability cannot attach to a private person unless she is among § 6103’s regulated classes and her inspection or disclosure transgressed § 6103’s limits.

Practical Impact and Future Litigation

This decision clarifies the pleading burden for § 7431(a)(2) claims in the Eleventh Circuit:

• Predicate violation requirement: Plaintiffs must identify how the non-federal defendant’s conduct violated a specific provision of § 6103 (or § 6104(c)).
• Enumerated class requirement: Plaintiffs must plausibly allege that the non-federal defendant is within § 6103(a)’s regulated categories—e.g., an “other person” who obtained IRS return information under one of the statute’s enumerated authorizations (such as a valid taxpayer consent under § 6103(c) or the other listed programs).
• Target the disclosing custodian: If the gravamen is that an IRS employee wrongly disclosed to an unentitled private person, the proper federal claim typically lies under § 7431(a)(1) against the United States, subject to statutory defenses (e.g., good-faith reliance on a consent instrument) and limitations.
• State-law and other federal avenues: Conduct like forging a Form 2848 may still support state tort claims (fraud, conversion, identity theft) or trigger criminal exposure under other statutes, but those are analytically distinct from § 7431/§ 6103.
• Family and domestic contexts: Disputes over joint estimated payments or allocation of refunds/credits do not alter § 6103’s scope. Tax privacy litigation must be framed around the statutory custodianship regime, not around equitable or family-law equities.

Although unpublished and non-precedential, the opinion is strongly persuasive because it harmonizes with the prevailing multi-circuit understanding of § 6103’s structure and purpose. Expect district courts within the Eleventh Circuit to apply this framework when screening § 7431(a)(2) complaints against private actors.

Complex Concepts Simplified

• “Return” and “Return Information”: Broadly, a “return” is the tax filing itself; “return information” includes data furnished to or collected by the IRS about a taxpayer—income, payments, credits, assessments, and more. Here, the $54,000 in estimated payments and account allocations qualify as “return information.”
• “Inspection” vs. “Disclosure”: “Inspection” means looking at or accessing return information. “Disclosure” means communicating that information to someone else. Section 7431 speaks to both; § 6103’s main operative prohibitions focus on disclosure by specified custodians and authorized recipients.
• Who is bound by § 6103? Not everyone. It binds:
  • Federal officers/employees (e.g., IRS agents).
  • State/local officials who received IRS tax information under § 6103 or § 6104(c).
  • “Other persons” (including private entities) who received IRS tax information via specific statutory gateways (for example, those acting under a valid taxpayer consent in § 6103(c), designated program administrators, certain whistleblowers, etc.).
  Private actors outside these categories are not directly regulated by § 6103.
• Form 2848 (Power of Attorney): This is the IRS form by which a taxpayer authorizes a representative to receive and discuss tax information. A forged Form 2848 is invalid, and an IRS employee’s reliance on it may create an IRS-side disclosure issue—but the forger is not thereby made a § 6103-regulated person.
• Why § 6104(c) didn’t apply: Section 6104(c) concerns IRS disclosures to states—particularly regarding exempt organizations and related oversight. It has no application to private ex-spouses.
• Unpublished (Not for Publication) Status: The decision is non-precedential in the Eleventh Circuit, but it remains persuasive and is consistent with how other circuits read § 6103/§ 7431.

Key Takeaways and Significance

• Section 7431(a)(2) is not a free-standing privacy tort against all private misconduct involving tax information. It is available only where the private actor’s inspection/disclosure violates § 6103 or § 6104(c).
• Section 6103 regulates specified custodians and authorized recipients of IRS-held tax information; purely private actors outside those categories are not covered—even if they illicitly persuade the IRS to disclose information.
• The proper federal remedy for an IRS employee’s wrongful disclosure typically lies against the United States under § 7431(a)(1), not against the private recipient under § 7431(a)(2), unless that private recipient independently falls within § 6103’s regulated classes.
• This opinion fortifies a cross-circuit consensus that restrains efforts to transform § 6103 into a generalized tax-privacy code applicable to everyone in every context.

Conclusion

The Eleventh Circuit’s decision in Winenger v. Lowry provides a clear, text-driven clarification: a plaintiff suing a private individual under § 7431(a)(2) must allege that the defendant’s inspection or disclosure violated § 6103 or § 6104(c), which in turn requires that the defendant be within § 6103’s enumerated categories of regulated custodians or authorized recipients. Because Lowry—a private ex-spouse—was not such a person, the claim failed as a matter of law. The ruling aligns with multiple circuits and offers a practical roadmap for taxpayers and practitioners: focus § 7431(a) claims on the statutorily regulated custodians (often the United States, for IRS employee disclosures) and reserve disputes with private parties for other legal theories. In doing so, the court preserves the designed contours of the Internal Revenue Code’s taxpayer-privacy regime while preventing its expansion into a generalized tort against private actors.