Mertes v. IRS, No. 19-1218, 2021 WL 242798 (E.D. Cal. Jan. 25, 2021) (Ishii, J.)

Mertes v. IRS, No. 19-1218, 2021 WL 242798 (E.D. Cal. Jan. 25, 2021) (Ishii, J.)

Re:  Request for IRS Form 709 gift tax form

Disposition:  Reviewing parties' required briefing as to status of case and finding that merits of case are not moot

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  First, the court holds that "[plaintiff's] invocation of § 552(a)(4)(E) does not prevent this case from becoming moot due to the disclosure of the Form 709" because "[a]s a matter collateral to the merits of [plaintiff's] FOIA claim, any issues regarding attorneys' fees under § 552(a)(4)(E) will not prevent the substance of [plaintiff's] FOIA complaint from becoming moot."  Second, the court holds that while "[t]here is no dispute that the 'four corners' of the Form 709 has been produced," "the Form 706 is a part of the Form 709 and has not been produced."  "Because, under the facts of this case, the Form 706 and the Form 709 are essentially a single document, the case is not moot through the production of the 'four corners' of the Form 709."  The court relates that "[plaintiff] argues that the Form 709 is missing pages."  "Specifically, the Form 709 attached and incorporated by reference an IRS Form 706."  "The IRS has refused to provide the referenced Form 706."  "The IRS argues that the attached Form 706 is not part of the Form 709 and thus, is outside the scope of the FOIA request and the Court's jurisdiction."  The court holds that "[o]rdinarily, the Court would agree that IRS Forms 706 and 709 are separate forms that deal with separate taxation issues."  "However, it is the fact that the Form 706 is referenced in the Form 709 and was intended to provide necessary and requested information under Column B that is the critical distinction."  "These are not two wholly separate documents, the one expressly references and relies on the other to provide information."  "Therefore, the Form 706 is a critical component or integrated part of the Form 709, and to treat the Form 706 as a 'separate record' would not maintain the integrity of the Form 709."  The court also finds that "that the IRS did not identify the Form 706 as responsive in this case reflects very little."  "A single instance of conduct generally is not enough to show a general practice or policy."  Finally, "the Court cannot conclude that the IRS would suffer any adverse consequences in terms of cost, efficiency, or resource allocation by treating the Form 706 as part of the Form 709 in this instance."