214 F.3d 179 (D.C. Cir. 2000)
Tax Analysts, Appellantv.Internal Revenue Service and Christian Broadcast Network, Inc.,Appellees
No. 99-5284
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 20, 2000Decided June 13, 2000

Appeal from the United States District Court for the District of Columbia(No. 98cv02345)
William A. Dobrovir argued the cause and filed the briefs  for appellant.
Jonathan S. Cohen, Attorney, U.S. Department of Justice,  argued the cause for appellee Internal Revenue Service. With him on the brief were Teresa T. Milton, Attorney, and  Wilma A. Lewis, United States Attorney.
J. William Koegel, Jr. argued the cause for appellee Christian Broadcast Network, Inc.  With him on the brief was  Bruce C. Bishop.
Before:  Sentelle, Tatel and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
Tax Analysts, a publisher of tax  material, sued the Internal Revenue Service (IRS) and the  Christian Broadcasting Network (CBN) under the Freedom  of Information Act (FOIA), 5 U.S.C.  552 (1994), and Internal Revenue Code (I.R.C.)  6104, 26 U.S.C.  6104 (1994),  respectively, in an effort to obtain copies of a closing agreement reached between the IRS and CBN in conjunction with  CBN's filing for tax exempt status under I.R.C.  501(a) and  (c)(3), 26 U.S.C.  501(a), (c)(3) (1994).  The IRS filed a  motion for judgment on the pleadings pursuant to Federal  Rule of Civil Procedure 12(c), and CBN filed a motion to  dismiss for failure to state a claim pursuant to Federal Rule  of Civil Procedure 12(b)(6).  The district court granted both  motions.  Tax Analysts appealed.  While we affirm the district court's dismissal of the action against CBN, we find the  present record inadequate to resolve Tax Analysts' claim  against the IRS, and remand for further proceedings.

A.

2
CBN has been an organization exempt from taxation under  I.R.C.  501(a) and (c)(3) since 1961.  In 1985 and 1986, CBN  allegedly engaged in political activities inconsistent with its  status as a tax exempt organization, prompting the IRS to  audit CBN and to examine CBN's continued eligibility for tax  exempt status.


3
On February 2, 1998, CBN filed with the IRS a Form 1023  Application for Exempt Status.  On March 13, 1998, the IRS  granted CBN's application retroactive to April 1, 1987.  On  March 16, CBN issued a press release announcing that it had  entered into an agreement with the IRS to conclude an audit  and to preserve its exempt status.  Specifically, the press  release indicated that the agreement entailed the loss of CBN's tax exemption for 1986 and 1987, the relinquishment  of exempt status for three CBN affiliates, a "significant  payment" by CBN to the IRS, and various other promises  and modifications to CBN operations.


4
On April 6, 1998, Tax Analysts sent a FOIA request to the  IRS seeking a copy of the agreement between the IRS and  CBN referred to in the press release;  any closing agreement  relating to the issues described in the press release;  any  written correspondence or memoranda of meetings or conversations between the IRS and CBN pertaining to those agreements or the press release;  and any renewal, revocation, or  modification of any ruling granting tax exempt status to  CBN.  A few months later, on June 29, 1998, the IRS  responded and, citing FOIA Exemption 3, 5 U.S.C.   552(b)(3), and I.R.C.  6103, declined to disclose any of the  requested information except the Form 1023 filed on February 2, 1998, and the March 13, 1998 determination letter from  the IRS to CBN granting exempt status.


5
On July 20, 1998, Tax Analysts sent a letter to CBN  seeking the same information as requested from the IRS,  citing I.R.C.  6104 as the basis for its request.  Like the  IRS, CBN declined to make available any documents other  than the Form 1023 and letter from the IRS granting exempt  status.  Shortly thereafter, Tax Analysts filed this action  against the IRS and CBN seeking access to the requested  records.


6
As a general matter, FOIA provides for the disclosure upon  request of government-held records and documents.  See 5  U.S.C.  552.  FOIA's general disclosure rule is subject to  nine statutory exceptions, however.  See id.  552(b).  The  government bears the burden of proving that any requested  documents it withholds fall within one of the nine exceptions.  See id.  552(a)(4)(B);  Petroleum Info.Corp. v. United States  Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992).


7
The exemption asserted by the IRS in this case, "Exemption 3," permits the withholding of government records "specifically exempted from disclosure by statute ... provided  that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on  the issue, or (B) establishes particular criteria for withholding  or refers to particular types of matters to be withheld...."5 U.S.C.  552(b)(3).  The I.R.C. explicitly provides for the  confidentiality of tax returns and "return information."I.R.C.  6103(a), 26 U.S.C.  6103(a).  This court and others  have recognized consistently that I.R.C.  6103(a) is a nondisclosure statute falling within the scope of FOIA Exemption  3.  See, e.g., Church of Scientology v. IRS, 484 U.S. 9, 11  (1987);  Lehrfeld v. Richardson, 132 F.3d 1463, 1466 (D.C. Cir.  1998);  Tax Analysts v. IRS, 117 F.3d 607, 611 (D.C. Cir.  1997);  Aronson v. IRS, 973 F.2d 962, 964 (1st Cir. 1992).


8
I.R.C.  6104(a)(1)(A), cited by Tax Analysts in its request  to CBN, provides for the disclosure of certain documents  relating to organizations exempt from tax under I.R.C.   501(c)(3), like CBN:


9
If an organization described in section 501(c) or (d) is exempt from taxation under section 501(a) for any tax-able year, the application filed by the organization withrespect to which the Secretary made his determination that such organization was entitled to exemption undersection 501(a), together with any papers submitted insupport of such application, and any letter or otherdocument issued by the Internal Revenue Service withrespect to such application shall be open to public inspec-tion at the national office of the Internal Revenue Ser-vice.


10
26 U.S.C.  6104(a)(1)(A).1  I.R.C.  6104 also requires an  exempt organization to make available for public inspection a copy of its application for exemption, "together with a copy of  any papers submitted in support of such application and any  letter or other document issued by the Internal Revenue  Service with respect to such application." 26 U.S.C.   6104(e)(2)(A)(ii) (Supp. III 1997).2  We recognized inLehrfeld that documents disclosable under I.R.C.  6104 may  contain material that otherwise constitutes "return information" protected from disclosure by I.R.C.  6103.  Lehrfeld,  132 F.3d at 1467.  I.R.C.  6104 therefore may be characterized as an exception to the exception from the general  disclosure rule offered by FOIA Exemption 3 and I.R.C.   6103.  The parties in this case agree that  6104, where it  applies, controls  6103;  and we will assume as much for the  purpose of this case.


11
The IRS has declined throughout this litigation to disclose  whether a closing agreement with CBN exists, and the district court did not examine the documents in question before  dismissing the complaint.  Instead, the court concluded from  the pleadings that the information requested by Tax Analysts  represents a closing agreement as defined by I.R.C.   7121(a), 26 U.S.C.  7121(a) (1994), and therefore constitutes tax return information that as a matter of law is outside  the scope of I.R.C.  6104 and exempt from disclosure under  FOIA Exemption 3 and I.R.C.  6103.  Accordingly, the  district court granted judgment on the pleadings as a matter  of law pursuant to Federal Rule of Civil Procedure 12(c) in  favor of the IRS.


12
With respect to the claim against CBN, the district court  also concluded that I.R.C.  6104 does not contemplate a  private right of action to enforce the obligation of an applicant  for tax exempt status to make its application papers available  to the public.  Accordingly, the district court dismissed the  action against CBN for failure to state a claim upon which  relief can be granted pursuant to Federal Rule of Civil  Procedure 12(b)(6).  Tax Analysts appeals both the judgment  and dismissal.

B.

13
We first consider whether the information requested by  Tax Analysts falls within the scope of I.R.C.  6104(a)(1)(A),  and thus must be disclosed despite FOIA Exemption 3 and  I.R.C.  6103.  As noted above, I.R.C.  6104(a)(1)(A) specifically requires disclosure of the application for exempt status,  "any papers submitted in support of such application," and  "any letter or other document issued by the [IRS] with  respect to such application."  Statutory phrases like "any  papers" and "any letter or other document" suggest breadth  within those delineated categories of disclosable information.Regulations promulgated by the Department of the Treasury  reinforce this suggestion by providing both a list of application materials, see Treas. Reg.  301.6104(a)-1(d)(2), 26  C.F.R.  301.6104(a)-1(d)(2) (1999), and a catch-all provision stating that "any statement or document not described in  paragraph (d) of this section that is submitted by an organization in support of its application."  Treas. Reg.  301.6104(a)1(e).  The catch-all provision further offers a legal brief as an  example of a disclosable document.  See id.  Despite the  breadth of I.R.C.  6104(a)(1)(A) and related regulations,  however, it is also clear from the statute that not every  document pertaining to an exempt organization that the IRS  has on file falls within the provision's scope.  See, e.g., Lehr feld, 132 F.3d at 1465-66 (concluding that I.R.C.   6104(a)(1)(A) does not cover papers submitted by third  parties because such documents are neither submitted by the  applicant nor issued by the IRS).


14
Beyond the obvious examples of the exemption application  itself and the final determination letter issued by the IRS, the  statute does not articulate exactly what constitutes a document that "supports" an exemption application or is "issued  ...  with respect to" an exemption application.  Tax Analysts  argues that an applicant might submit a closing agreement as  a supporting document for an exemption application, and that  both the closing agreement and documents generated in the  process of negotiating the closing agreement might also be  submitted by the applicant in support of or issued by the IRS concerningthat application.  Also, Tax Analysts asserts that  the IRS may possess legal briefs, letters, memoranda, and  other papers submitted by CBN's attorneys, accountants,  officers, or directors presenting arguments in favor of CBN's  exempt status or explaining or excusing CBN's political activities.  Accordingly, Tax Analysts maintains that the district  court erred in concluding that there was no set of facts under  which Tax Analysts could state a cause of action under FOIA.


15
The IRS, on the other hand, while not acknowledging  whether the sought documents exist, takes the position that a  closing agreement and its documentary precursors, by their  very nature and regardless of their content, are return information protected by FOIA Exemption 3 and I.R.C.  6103,  beyond the scope of I.R.C.  6104(a)(1)(A).  The IRS points  to the list of application materials in Treas. Reg.   301.6104(a)-1(d)(2), which includes particular types of documents and statements like the applicant's articles of incorporation and bylaws, financial statements, and organizational  charts, but does not mention closing agreements.  See Treas.  Reg.  301.6104(a)-1(d)(2).


16
If IRS forms and regulations require the filing of particular  types of documents as part of an application for exemption,  then clearly such documents are submitted in support of the  application regardless of their content.  The converse, that  other types of documents cannot be included in the statutory  phrase "submitted in support of such application," does not  necessarily follow.  While I.R.C.  6104(a)(1) explicitly requires disclosure of applications for exempt status and letters,  the descriptions that define which documents and letters are  disclosable--"in support of such application," and "with respect to such application"--speak to content without limitation as to type of document.  Also, the catch-all provision of  Treas. Reg.  301.6104(a)-1(e), by its express inclusion of  other documents, denies the notion that the prescribed list  represents the outer bounds of disclosability.  We note further that I.R.C.  6103(b)(2), in defining "return information,"  similarly uses descriptions of content rather than titles and  labels to articulate which taxpayer records should be held  confidential.


17
The IRS has never denied that an applicant might submit a  particular document both to negotiate a closing agreement  and to support an exemption application where the two  processes share overlapping issues.  Moreover, at oral argument, the IRS conceded that a closing agreement which  would generally in its view be exempt from disclosure as  return information nevertheless might become disclosable if  submitted in support of an exemption application.  Precluding  disclosure of a closing agreement, without regard to its  content or circumstances, merely because it carries that  particular label is therefore inconsistent with the statutory  inclusion of "any papers submitted" and "any letter or document issued."  Particularly in this case, where the press  release suggests that the closing agreement and application  for exempt status were part of a single, overall negotiation  between the IRS and CBN, the IRS's rigid reliance on the type of documents at issue rather than their content is  questionable.


18
In arguing against remand for further discovery, the IRS  relies heavily upon another case involving closing agreements,  Tax Analysts v. IRS, 53 F. Supp. 2d 449 (D.D.C. 1999).  In  that case, the district court granted summary judgment for  the IRS on the ground that the closing agreements were not  disclosable under I.R.C.  6104(a)(1)(A) because they were  not " 'issued' by the IRS," but were instead bilateral contracts  between the IRS and the applicants in question.  Id. at 453.Without endorsing this view of the meaning of "issued by the  IRS," we note that the district court in that case conducted  an in camera review of the agreements in question before  concluding that they did not fall within the scope of I.R.C.   6104(a)(1)(A).  That court based its decisionprincipally  upon "the character of the closing agreements themselves,"  id. at 453 n.6, explicitly leaving open the question of whether  a closing agreement might itself constitute an application for  exempt status disclosable under I.R.C.  6104(a)(1)(A).  See  id. at 453 n.7.  In other words, far from supporting the IRS's  argument that further discovery would be fruitless, that case  better supports the conclusion that some review of the content of the documents in question is necessary before the  court can adequately determine whether or not I.R.C.   6104(a)(1)(A) applies.


19
At bottom, the case before us does not present a disagreement over the law to be applied, but the narrow and fact specific question of whether the closing agreement between  the IRS and CBN and any accompanying documentation  represent material discloseable under I.R.C.  6104(a)(1)(A),  despite their apparent status as material exempt from disclosure under I.R.C.  6103.  As the present record is inadequate for such determination, further discovery is necessary. We therefore vacate the district court's judgment in favor of  the IRS and remand for further proceedings consistent with  this opinion.  We leave to the district court in the first  instance the question of whether in camera examination or  the filing of a Vaughn index is sufficient to create an adequate record upon which to base the discloseability determination.

C.

20
We turn next to Tax Analysts' claim against CBN.  The  district court dismissed that claim after concluding that I.R.C.   6104 does not contemplate a private right of action to  enforce the public inspection requirement imposed upon applicants for tax exempt status.  I.R.C.  6104 does not expressly provide for private action against exempt organizations that fail to make available their exemption applications  and supporting documentation.  Indeed, the provision offers  no language at all concerning remedies for its violation.  Tax  Analysts argues that this omission does not preclude its cause  of action against CBN for allegedly violating that statute's  public inspection requirement, and that Congress intended a  private remedy to effectuate the public inspection requirement.  CBN, unsurprisingly, maintains that I.R.C.  6104  does not support an implied private right of action.


21
Although violation of a federal statute alone is inadequate  to support a private cause of action, see, e.g., Touche Ross &  Co. v. Redington, 442 U.S. 560, 568 (1979) (quoting Cannon v.  University of Chicago, 441 U.S. 677, 688 (1979)), the Supreme  Court has repeatedly recognized that, in some cases, the  courts may infer such a remedy from the language or structure of a statute or the circumstances of its enactment.  See,  e.g., Karahalios v. National Fed'n of Fed. Employees, Local  1263, 489 U.S. 527, 532-33 (1989);  Transamerica Mortgage  Advisers, Inc. v. Lewis, 444 U.S. 11, 18 (1979).  The question  we must resolve is whether Congress intended to provide a  private remedy for violations of the public inspection requirement of I.R.C.  6104.  See, e.g., Thompson v. Thompson, 484  U.S. 174, 179 (1988);  Transamerica, 444 U.S. at 15.


22
To answer that question, we turn to the long line of cases  stemming from Cort v. Ash, 422 U.S. 66 (1975).  In Cort, the  Supreme Court articulated four factors for the courts to  weigh in discerning congressional intent to provide an implied  private right of action:  (1) whether the plaintiff is one of the class for whose benefit the statute was enacted;  (2) whether  some indication exists of legislative intent, explicit or implicit,  either to create or to deny a private remedy;  (3) whether  implying a private right of action is consistent with the  underlying purposes of the legislative scheme;  and (4) whetherthe cause of action is one traditionally relegated to state  law, such that it would be inappropriate for the court to infer  a cause of action based solely on federal law.  See id. at 78;see also Suter v. Artist M, 503 U.S. 347, 364 n.16 (1992)  (recognizing the four Cort factors);  Thompson, 484 U.S. at  179 (expressing reliance upon the Cort factors).  Over the  years, the proper application and continued vitality of Cort's  four factors have been matters of great debate, as reflected in  the parties' arguments.  Tax Analysts contends that we  should mechanically consider and weigh each of the four  factors, and cites numerous Supreme Court cases as supporting its position.  CBN maintains, conversely, that the Supreme Court has discarded step-by-step evaluation of the  Cort factors, and cites as many cases sustaining its view.


23
Turning to our own jurisprudence in this area, in Government of Guam v. American President Lines, 28 F.3d 142  (D.C. Cir. 1994), we reviewed Cort and its progeny and  concluded that, in assessing whether Congress intended an  expressly provided remedy to be the only remedy, "the  central analysis is directed at discovering legislative intent by  means of 'the language of the statute, the statutory structure,  or some other source.' " Id. at 145 (quoting Karahalios, 489  U.S. at 532-33).  We also acknowledged that, where Congress  has otherwise enacted "a comprehensive legislative scheme  including an integrated system of procedures for enforcement," there is a strong presumption that Congress deliberately did not create a private cause of action.  Id. at 145-46  (quoting Massachusetts Mut. Life Ins. Co. v. Russell, 473  U.S. 134, 147 (1985)).


24
Although I.R.C.  6104 does not articulate a remedy for its  violation, elsewhere in the tax code, Congress provided an  enforcement mechanism of IRS-imposed civil fines and penalties for  6104.  See I.R.C.  6652(c)(1)(C)-(D).  Additionally,  current IRS regulations offer the public a mechanism for complaining to the IRS about an exempt organization's failure  to comply with  6104.  See 26 C.F.R.  301.6104(d)-1(g).Although these regulations did not take effect until after Tax  Analysts filed suit, we note that the IRS has long accepted  information from third parties regarding taxpayers' failure to  comply with the tax laws, even in the absence of a specific  regulatory mechanism for doing so.  If ever a case demonstrated a "comprehensive legislative scheme including an  integrated system of procedures for enforcement," Government of Guam, 28 F.3d at 145-46, it would be this one.


25
Moreover, we note that the exempt organization is not the  only source from which an interested party can obtain copies  of the organization's exemption application and supporting  documents.  As Tax Analysts' claim against the IRS amply  demonstrates, I.R.C.  6104 permits interested parties to  gain access to the same documents from the IRS.  Additionally, we note that I.R.C.  6104(e) does not require an exempt  organization to release for public inspection any document  that the public could not otherwise procure from the IRS.  In  other words, Tax Analysts achieves nothing through a private  right of action against CBN that cannot be obtained from the  government in the alternative.


26
Our analysis comports with that of the only other courts to  consider whether I.R.C.  6104 creates an implied private  remedy.  See Schuloff v. Queens College Found., Inc., 994  F. Supp. 425, 427-28 (E.D.N.Y. 1998), aff'd, 165 F.3d 183 (2d  Cir. 1999).  For all of these reasons, we conclude that I.R.C.   6104 does not provide a private right of action, and affirm  the district court's dismissal of Tax Analysts' claim against CBN.

Conclusion

27
In summary, because we find the present record inadequate to determine whether the closing agreement between  the IRS and CBN and any accompanying documentationare disclosable under I.R.C.  6104(a)(1)(A), we vacate the judgment in favor of the IRS on Tax Analysts' FOIA claim and  remand for further proceedings, leaving to the district court the question of how best to create an adequate record.  We  hold, however, that  6104 does not provide Tax Analysts  with a private right of action against CBN, and affirm the  district court's dismissal of that claim.



Notes:


1
 All editions of the United States Code since 1970 have actually  read "any paper" instead of "any papers" as we set forth above.See 26 U.S.C.  6104 (1970);  see also United States Code editions  of 1976, 1982, 1988, and 1994.  However, the original language "any  papers" was inserted into  6104 in 1958, see Technical Amendments Act of 1958, Pub. L. No. 85-866,  75(a), 72 Stat. 1606, 166061 (1958), and appeared in the 1958 and 1964 editions of the United  States Code.  The United States Statutes at Large are "legal  evidence" of the law, 1 U.S.C.  112 (1994), whereas the titles of the  United States Code only serve as "prima facie" evidence of the law  unless they are enacted as "positive law," in which case they too  serve as legal evidence of the laws.  1 U.S.C.  204(a) (1994);  see  also Stephan v. United States, 319 U.S. 423, 426 (1943) (per curiam)  (Statutes at Large prevail over prima facie portions of U.S.C.).The I.R.C. has been enacted as a separate code and is therefore  positive law.  See Internal Revenue Code of 1954, ch. 736, 68A Stat.  1 (1954).  Though both the Statutes at Large and I.R.C. could be  said to be authoritative here, we use the "any papers" language of  the original enactment appearing in the Statutes at Large.  The  difference is irrelevant to the outcome of the case, and we will thus  disregard an apparent scrivener's error made by a codifier without  congressional direction.  Cf. United States v. Welden, 377 U.S. 95,  98 n.4 (1964) (holding that a "change of arrangement" by a codifier  to a section not enacted as positive law "should be given no  weight").


2
 Legislation enacted in 1998 amended  6104, repealing former  subsections (d) and (e) and inserting a new subsection (d) that  includes the public inspection requirement of former  6104(e).  See  Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277,  1004(b), 112 Stat. 2681,  2681-888 to 2681-889 (1998) (codified at 26 U.S.C.A.  6104 (West  Supp. 1999)).  Although the amendment altered the statutory language slightly, those changes are not relevant to the issue before  us.  Accordingly, we need not and do not address those differences  here.


