part37-2
- 37.1.2.1
Purpose and Background - 37.1.2.2
Disclosure to Committees and Members of Congress - 37.1.2.3
Other Provisions of Section 6103 - 37.1.2.4
Other Internal Revenue Code Sections - 37.1.2.5
Freedom of Information Act (FOIA) and Privacy Act of 1974 - 37.1.2.6
Matters under Consideration of Field Offices - 37.1.2.7
Publications - 37.1.2.8
Section 6110 Index - 37.1.2.9
Jurisdiction over Coordination of Litigation Involving Disclosure
Issues - 37.1.2.10
Disclosure of Other Material - 37.1.2.11
Testimony Authorizations
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These instructions provide procedures relating to the disclosure of
information (including classified and confidential material) to persons outside
the Service. -
IRM 11.3, Disclosure of Official Information, provides procedural and
technical guidance with respect to disclosure of official information. -
Section 6103 provides that returns and return information shall be confidential
and may not be disclosed except as authorized by the Code. The term “return information”
includes any information received or prepared
by Service employees with respect to a return or with respect to the determination
of the existence or possible existence of liability of any person for any
tax, penalty, or interest. The term also includes any part of a written determination
or related background file document that has been redacted in accordance with
section 6110(c) or (i). Return information also includes advanced pricing
agreements and closing and similar agreements. See section 6103(b)(2)(C) and
(D). -
Section 1905 of Title 18 provides criminal penalties for the disclosure “in any manner or to any extent not authorized by
law”
of any
information coming to Federal officers or employees relating to the amount
or source of any income, profits, losses, expenditures, operations, processes,
style of work, etc., of any person, firm, partnership, corporation, or association. -
Sections 7213 and 7213A provide criminal penalties for the willful unauthorized
disclosure or inspection (respectively) of returns and return information.
Section 7431 provides civil penalties for unauthorized disclosure or inspection
of returns and return information. -
The Privacy Act, 5 U.S.C. § 552a, prohibits nonconsensual disclosures
of agency records maintained on an individual except for those disclosures
permitted by 5 U.S.C. § 552a(b)(1) – (12). -
Questions relating to disclosure matters arising within the Office of
Chief Counsel should be referred to the Assistant Chief Counsel (DPL). Questions
which involve disclosures of returns or return information in personnel matters
pursuant to section 6103(l)(4) will be coordinated with the Office of Associate
Chief Counsel, General Legal Services (GLS).
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Disclosure of returns and return information may be made to the following
committees upon written request of the chairpersons of these committees:-
House Ways and Means Committee
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Senate Finance Committee
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Joint Committee on Taxation or
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any other committee specifically authorized by resolution of the House
or Senate (or, in the case of joint committees, by concurrent resolution)
to inspect such returns or return information.
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Disclosure may also be made to the Chief of Staff of the Joint Committee
on Taxation, upon that persons written request.
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Individual Members of Congress have no special statutory rights to obtain
returns or return information. Members are at times asked by constituents
to provide assistance in securing rulings or obtaining other information from
the Service. In determining what confidential information, if any, can be
provided to the Member, a determination must be made as to what extent the
taxpayer has consented to disclosure to the Member, or to what extent the
taxpayer has designated the Member to receive such information on behalf of
the taxpayer. Section 6103(c) governs disclosure of returns and return information
to the designee of a taxpayer. See Treas. Reg. § 301.6103(c)-1. Nothing
herein would preclude giving general information (as opposed to returns or
return information) to an individual Member upon the Members request for
general information. -
Following are examples illustrating the Office of Chief Counsels practices
in handling inquiries from Members that contain potential disclosure issues.
If there is any doubt whether return information should be disclosed to a
Member, the Assistant Chief Counsel (DPL) should be consulted.
Example a.
A taxpayer writes to the
Service concerning a tax issue with a notation that a copy of the correspondence
is being sent to a Member. There is no indication that the taxpayer has provided
any additional communication to the Member of Congress. Subsequently, the
Member submits the copy of the taxpayers letter to the Service and requests
information concerning the matter. Since there is no indication of a written
request by the taxpayer for, or consent by the taxpayer to, disclosure to
the Member, the Service may not provide any return information to the Member.
The Member should be advised accordingly and informed that the Service will
reply directly to the taxpayer.
Example b.
A taxpayer writes to the
Service concerning a tax issue. The taxpayer subsequently writes to a Member
of Congress asking the Member to secure information from the Service regarding
the taxpayers letter. The taxpayer sets forth in the letter to the Member
the pertinent facts of the transaction upon which the letter is premised.
The Member submits to the Service a copy of the taxpayers letter, and requests
information concerning the matter. In this case, there appears little doubt
that the taxpayer has requested the Member to act on the taxpayers behalf.
Accordingly, the Service can provide return information to the Member, but
only to the extent necessary for the Member to comply with the taxpayers
request for information or assistance. This could include a copy of the response
letter. As provided in section 6103(c), the Service shall not disclose return
information if it is determined that disclosure would seriously impair Federal
tax administration. For further information, see Treas. Reg. § 301.6103(c)-1.
Example c.
A taxpayer writes a letter
to a Member of Congress asking the Member to obtain information relating to
the status of a request for a written determination. The Member of Congress
furnishes to the Service this letter (or a copy) from the taxpayer and requests
information regarding the present status of the case. The status may be given
in general terms (e.g., awaiting consideration, under study, in review, etc.).
If the date the written determination will be issued is requested, the approximate
date it is expected to be issued will be given if it can be ascertained with
reasonable accuracy. The fact that a case has been referred to another area
within the Office of Chief Counsel may be disclosed. The name of the particular
person or specific office where the case is pending will not
be released.
Example d.
A taxpayer writes a letter
to a Member of Congress asking the Member to obtain information relating to
the status of a request for a written determination. If the Member does not
furnish the letter from the taxpayer, no information regarding the taxpayers
request to the Service may be disclosed to the Member because status information
is “return information”
within the meaning of section
6103. Therefore, even affirmation or denial that the taxpayer has a pending
request for a written determination may not be made.
Example e.
A taxpayer contacts a
Member of Congress to seek aid in having a case expedited by processing it
ahead of regular order. The taxpayer must submit a written request to the
Associate Chief Counsel setting forth the reasons that justify such action;
such requests are resolved on their merits. In these cases, the Member is
advised of this rule. The case is not taken out of order merely upon a congressional
request.
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Section 6103 also provides for the disclosure of certain returns and
return information in other circumstances. Discussed herein are some of those
circumstances likely to arise in the Office of Chief Counsel. Guidance may
be sought as necessary from the Assistant Chief Counsel (DPL). See also IRM
11.3, Disclosure of Official Information, for additional information. -
Disclosure may be made to such person as the taxpayer may designate
in a request for, or consent to, such disclosure. The procedures for the disclosure
of information in response to a written and nonwritten request or consent
are found at Treas. Reg. § 301.6103(c)-1. The Service can refuse to disclose
return information to such a designee, however, if it is determined that the
disclosure would seriously impair Federal tax administration. See section
6103(c). -
Disclosure may be made, upon written request, to persons having a material
interest as described in section 6103(e). The Service can refuse to disclose
return information to any person having a material interest if it is determined
that such disclosure would seriously impair Federal tax administration. See
section 6103(e)(7). -
Disclosures are permissible to officers and employees of the Department
of the Treasury when required for the performance of their official tax administration
duties. See section 6103(h)(1). -
In general, returns or return information may not be disclosed to the
Department of Justice for purposes of tax administration unless the taxpayer
is or may be a party to a judicial proceeding (or the proceeding arose out
of, or in connection with, determining the taxpayers civil or criminal liability,
or the collection of such civil liability in respect to any tax imposed under
this title), the treatment of an item reflected on such return is or may be
directly related to the resolution of an issue in the proceeding, or if the
information relates or may relate to a transactional relationship between
the taxpayer and a party to the proceeding. See section 6103(h)(2).
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Section 6104 permits public inspection of approved applications for
tax exempt status of organizations described in sections 501(c) and (d), or
the notice status of an organization filed under section 527(i). Certain information
pertaining to 501(c) or (d) and 527 organizations may not be required to be
disclosed or made available for public inspection under section 6104. -
Section 6105(a) provides generally “that tax convention
information shall not be disclosed.”
Tax convention information includes
any agreement entered into with the competent authority of a foreign government;
any application for relief under a tax convention; any background information
related to the agreement or application for relief; any document implementing
an agreement; and, any other information exchanged under the agreement that
is treated by the agreement as confidential or secret. The Associate Chief
Counsel (International), Branch 1, should be consulted with respect to issues
arising from the treatment of information received under a tax convention. -
In the event a Service or Office of Chief Counsel employee is requested
to provide evidence or an affidavit to a foreign country, see CCDM 34.9.1.3(7).
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For procedures relating to implementation of the FOIA, see CCDM 30.11.
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For procedures implementing the Privacy Act, 5 U.S.C. § 552a, see
CCDM 37.2.1.
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National office Counsel employees shall not discuss with the taxpayer
matters under consideration by a field office unless the specific matter relates
to a ruling request by the taxpayer, a request for technical advice, or a
Chief Counsel advice that involves the taxpayer which is pending in that professional
employees office. The national office attorney should not contact the taxpayer
with respect to a Chief Counsel advice without first contacting the field
attorney.
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Publications that are designated “Official Use Only” may not be given
or the contents disclosed to persons outside the Service by employees. Requests
for such documents will be handled in the same manner as requests for records
under the FOIA. See CCDM 30.11 and IRM 11.3.12, Classification of Documents.
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Publication 1078, the Section 6110 Index, is the official publication
for the release of written determinations to the public under section 6110.
The Index is published each Friday and is available to the public from the
Freedom of Information Reading Room, and at www.irs.gov/foia.
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The Section 6110 Index is arranged by Code section with various identifying
subheadings. Each written determination is assigned a 7-digit ruling number
that appears on each written determination published and is referenced to
specific Code sections for inclusion in the Index. The Section 6110 Index
is cumulated on a weekly basis and a new Index is initiated each quarter.
The Section 6110 Index in each issue is followed by all the written determinations
scheduled for public inspection for that week.
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The Associate Chief Counsel (P&A) is responsible for coordinating
litigation in disclosure matters. The work in this area is performed by attorneys
in the office of the Assistant Chief Counsel (DPL). This responsibility extends
to all litigation matters that involve alleged improper inspection or disclosure
of returns and return information (section 7431), the FOIA (5 U.S.C. §
552), and the Privacy Act (5 U.S.C. § 552a). See also CCDM 37.2.1.1 and
CCDM 37.2.2. -
Any litigation received by a field office that involves solely disclosure
issues should be immediately referred to the Assistant Chief Counsel (DPL)
for handling through the Technical Services Support Branch. The complaint
should be sent (or faxed at (202) 622-4817) to the Technical Services Support
Branch (TSS) for case opening. In the event of a short deadline for response
to a complaint, the complaint can also be faxed to DPL at (202) 622-6292. -
In any litigation cases where disclosure issues are raised along with
other issues, DPL will have the responsibility for presenting the Office of
Chief Counsels views on the disclosure issues to the Department of Justice.
To this end, as soon as the complaint is received in the field
office, a copy of the complaint should be express mailed or faxed (at
(202) 622-4817) to TSS in IR 5329 and to the Assistant Chief Counsel (DPL)
at (202) 622-6292.Note:
The DPL attorney will coordinate with the field attorney
assigned to the case.
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If the complaint alleges jurisdiction under section 7431, the opening
entry in the CASE-MIS database must include the dollar amount of damages claimed
by the plaintiff(s). If the complaint does not state the amount of damages
claimed with any particularity, the DPL attorney shall estimate the maximum
potential liability from the facts at hand. If, after investigation of the
facts, or discovery between the parties, the facts reveal that the potential
liability is different from the amount first entered in the database, the
attorney should change the amount to reflect current potential liability. -
DPL attorneys are to check regularly, no less than quarterly, as to
the status of the pending litigation with the Tax Division trial counsel and
specifically note the contacts in the legal file. -
If a damages claim is based on multiple legal theories including section
7431, and more than one Counsel function is assigned to work on the case as
a result, the attorney with primary responsibility for the damages aspect
of the litigation must ensure coordination with the other Counsel offices,
as appropriate, and place in the primary case file a statement of which attorney
will provide outcome notification to the Deputy Chief Counsel (Operations). -
For all complaints alleging an unauthorized inspection or disclosure
of returns or return information, the DPL attorney is to send an information
copy of the complaint to Counsel for the Treasury Inspector General for Tax
Administration (TIGTA). -
Memorandum to the Service. Upon receipt of a decision involving an unauthorized
inspection or disclosure claim for damages under section 7431, DPL attorneys
must ensure that the following steps are taken with regard to giving notice
to affected Service offices:-
Notify appropriate Service management of the outcome, whether the Government
wins or settles on a favorable basis, or whether the result is a loss or settlement
adverse to the Governments position. -
Include in the notice a statement of the dollar amount of damages awarded
or agreed to, when the result is a loss or settlement adverse to the Governments
position. -
Advise appropriate Service management of the Treasury Department standards
governing referral to TIGTA (see Treasury Order 115-01
www.treas.gov/regs/to115–01.htm). -
Provide a recommendation as to whether, if the case has not previously
been referred to TIGTA, a referral is appropriate in light of the outcome
of the case.
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If an Office of Chief Counsel employee has been found to have violated
any of the provisions of section 6103, prepare notification to the Deputy
Chief Counsel (Operations) of the background and outcome of the damages in
litigation.
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For treatment of printed manual material, see IRM 11.3.12.4.1.
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For treatment of Law Enforcement Manual material, see IRM 11.3.12.4.3.
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For treatment of training material, see IRM 11.3.12.5.
