Mr. H. Marshall Jarrett, Counsel
Office of Professional Responsibility
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Re: Request for Investigation into the Conduct of
U.S. Department of Justice Attorneys in United States v. KPMG LLP
Dear Mr. Jarrett:
Landmark Legal Foundation ("Landmark") respectfully requests that the Office of Professional Responsibility ("OPR") conduct an immediate investigation into the conduct of Stuart D. Gibson and D. Brian Simpson, Trial Attorneys, Tax Division, U.S. Department of Justice, and all other Justice Department officials having responsibility for or involvement in the public disclosure of taxpayer identities in United States v. KPMG LLP, Case No. 1:02H500295 (U.S. District Court for the District of Columbia).
28 C.F.R. Sec. 0.39a(a) requires the Office of Professional Responsibility ("OPR"):
Receive and review any information or allegation concerning conduct by a Department employee that may be in violation of the law, regulations or orders, or of applicable standards of conduct or may constitute mismanagement, gross waste of funds, or a substantial and specific danger to public health or safety.
Internal Revenue Code ("IRC") Section 6103 provides that tax returns and "return information," which by definition includes a taxpayer's identity (see Section 6103(b)(2)):
shall be confidential, and except as authorized by this title no officer or employee of the United States . . . who has or had access to returns or return information under this section . . . shall disclose any return or return information obtained by him in any manner in connection with his service as such an officer or an employee or otherwise or under the provisions of this section.
On July 9, 2002, the Internal Revenue Service ("IRS"), represented by the Tax Division of the U.S. Department of Justice and its attorneys Stuart D. Gibson and D. Brian Simpson, filed in U.S. District Court a petition to enforce IRS summonses against the accounting firm of KPMG LLP. (United States of America v. KPMG LLP, DDC Case No. 1:02HS00295) Included as an exhibit to the IRS petition was a KPMG "privilege log," which KPMG apparently provided the IRS in order to justify the firm’s refusal to produce certain documents relating to individual taxpayer clients. Included in the privilege log are the identities of numerous individual taxpayers.
On July 12, 2002, the Associated Press ("AP") reported, in part IRS Says GOP Nominee for California Governor Among Dozens of Participants in Suspect Tax Shelters):
California’s Republican gubernatorial nominee, movie and telecommunications executives and the late race car driver Dale Earnhardt are among investors identified by the IRS as participants in tax shelters under federal investigation.
Bill Simon, the GOP nominee; his late father, former Treasury Secretary William E. Simon; Gary Winnick, chairman of the bankrupt telecomm giant Global Crossing, Ltd.; Bob Shaye, chairman of New Line Cinema; and Earnhardt were among scores of names made public by the Internal Revenue Service.
The disclosure was included in court documents that detail the tax shelters in a legal confrontation with KPMG LLP.
The Justice Department, acting for the IRS, sued KPMG and BDO Seidman LLP on Tuesday for information about the tax shelters they have promoted. The firms said the documents at issue are protected by client confidentiality privileges.
A similar article appeared in the Washington Post on July 13, 2002.
In a July 17, 2002, Wall Street Journal editorial, The IRS Out of Control, America