1.5.5 Section 1204/Regulation 801 Guidance for Criminal Investigation (CI)

1.5.5.1 (10-01-2000)
Section Overview

  1. This section provides specific guidance on the use of statistics within Criminal Investigation (CI). The majority of the guidance is provided in the form of questions and answers (Exhibit 1.5.5–1) and additional guidance is shown in the form of examples of acceptable/non-acceptable language (Exhibit 1.5.5.3). The answers in Exhibit 1.5.5–1 were determined by using the Decision Table from Section 2 (Exhibit 1.5.2–2).
  2. While it would be impossible to cover every situation that may arise involving the use of statistics, the Decision Table should provide assistance to guide you to the appropriate determination.

    Note:

    Please note, this section was not intended to be used as the sole reference source for CI on managing statistics. Please refer to sections 1 and 2 for overall agency policy, guidance, definitions and examples concerning the proper use of statistics.

1.5.5.2 (10-01-2000)
Application of the Manual

  1. The guidelines, restrictions and prohibitions in the use of statistics as outlined in this manual applies to all CI employees who exercise judgment in determining whether or how the IRS should pursue enforcement of the tax laws against a particular individual or entity. The manual provisions are applicable to each employee based upon the specific tasks they perform and not the title of their position or the location where they are performing their tasks.
  2. For most Special Agents and their various levels of supervisors, this circumstance of exercising judgment applies to a majority of the tasks they perform. Those Special Agents who are assigned full or part time to specialty positions may be exempt from the manual provisions since they are not exercising judgment in determining whether or how the IRS should pursue enforcement of the tax laws.
  3. Generally, support personnel do not execute the type of tasks in which they exercise judgment about enforcement of the tax laws. However, some support personnel (such as Tax Fraud Investigative Aides, intelligence analysts and interns) may make recommendations to Special Agents or management officials as to whether or how the IRS should pursue enforcement of the tax laws against specific individuals or entities. When making these types of recommendations, the support personnel come under the guidance of this manual.

1.5.5.3 (10-01-2000)
Use of ROTERs in Evaluations

  1. Records of tax enforcement results (ROTERs) may not be maintained or used for the purpose of evaluating any individual employee. Examples of ROTERs include, but are not limited to:
    1. Number of fraud referrals accepted or rejected
    2. Fraud referral acceptance rate
    3. Number of prosecution recommendations
    4. Prosecution rate
    5. Legal review acceptance rate
    6. Number of discontinued investigations
    7. Number of seizures
    8. Dollar value of items seized
    9. Number of search warrants
    10. Number of arrests
    11. Number of forfeitures
    12. Dollar value of assets forfeited
    13. Number of indictments
    14. Indictment rate
    15. Number of convictions
    16. Conviction rate
    17. Number of pleas, settlements agreements or Alfred pleas
  2. An evaluation may include a performance rating, an award recommendation, either within IRS or to an organization outside IRS, a progress review, an assessment for or qualification for promotion or a similar type of managerial determination. For more information related to progress and workload reviews see IRM 1.5.2.
  3. Managers should not use language, such as contained in the following examples, which suggests that ROTERs were used to evaluate the employee. The employee’s performance is to be measured against that employee’s specific critical job elements and standards. Managers may not cite a ROTER as the basis for an individual employee’s performance rating or include a ROTER in any written employee performance evaluation. In addition to the prohibition against using hard numbers on a collective basis, managers are also prohibited from using “soft language or phrases” that are suggestive of ROTERs. Examples of these type of items are:
    1. Successful prosecution of the numerous individuals and entities.
    2. Seizure of numerous luxury automobiles.
    3. All of the defendants pled guilty to money laundering charges.
    4. Numerous search warrants were executed.
    5. Multiple currency seizures.
    6. A large number of individuals have been indicted.
    7. Sentences given to the various defendants range from several months to multiple years.
    8. Subjects were charged with various Federal crimes such as…
    9. Substantial forfeitures of assets.
    10. Significant amount of assets that were subject to forfeiture and seizure.
    11. Lengthy sentences were imposed.
    12. Seizure of an extremely large amount of currency.
  4. In discussions with employees about performance, managers may discuss the particular tax enforcement result achieved in a particular case or cases provided that the discussion is based upon the manager’s review of the employee’s case file(s) for the specific case(s).
  5. However, the discussion of the particular tax enforcement result obtained should only be to the extent that it is necessary to fairly and fully determine the employee’s exercise of appropriate judgment in arriving at that specific tax enforcement result. The emphasis of the manager’s discussion should be directed towards the measurement of the employee’s performance against the employee’s critical job elements and standards and how the execution of the critical job elements achieved the specific tax enforcement result. It is expected that this type of discussion will occur most frequently in the critical job elements for “court related activities” and “other enforcement activities.”
  6. Annual performance plans for managers will be prepared and agreed upon without ROTERs being cited in the written plan. Evaluations for all levels of management will be based upon the individual manager’s actions taken in accordance with that manager’s annual agreed upon performance plan.
  7. Performance measures (i.e.: Customer Satisfaction; Employee Satisfaction; Business Results of Quality, Quantity and Outreach) may only be used as an analytical input tool in preparing managerial evaluations. Managers may use performance measures in determining whether the actions taken by the subordinate manager being evaluated achieved the desired performance result as specified in the annual performance plan.
  8. Performance measures may not be used as a stand-alone measure to determine the individual manager’s evaluation rating when comparing his or her achievements to their annual performance plan. As with all non-supervisory employee evaluations, managerial evaluations must not cite any ROTERs.
  9. Managers are free to discuss tax enforcement results with the subordinate manager being evaluated, but the manager’s evaluation is required to emphasize the subordinate manager’s performance against his or her annual agreed upon performance plan.
  10. Self- assessment information prepared by employees or managers must not contain ROTERs. For employees, this includes Knowledge, Skills, and Abilities (KSA) Statements prepared and submitted as part of the promotion ranking package. It is important that Supervisory Special Agents review all KSA statements before they are submitted to the host personnel site. The manager should review the KSA statements for ROTERs as well as the accuracy of the statements made by the employee. If an employee or manager submits self-assessment information containing a ROTER, the management official receiving the information must return the information to the employee or manager and the management official must retain any copies of the information
  11. The manager will ask the employee to submit a new self-evaluation without the ROTER. The manager may not consider or use the submitted ROTER in an evaluation of the employee. The manager is also required to inform the employee that the information received contained a ROTER and the manager will identify the ROTER for the employee.
  12. The manager will counsel the employee so that the employee understands the proper use of statistics within the IRS and the IRS’ policy on the use of statistics.

1.5.5.4 (10-01-2000)
Other Measures and Statistics

  1. Balance Measures and diagnostic tools were developed to assist all managers to better utilize their resources. They provide insight into organizational processes and performance. Managers are expected to use these measures and tools to help them achieve an appropriate mix of Customer Satisfaction, Employee Satisfaction, and Business results.
  2. Statistics that do not relate directly to cases are not considered to be ROTERs. Included in these type of statistics are:
    1. items that are related to case closures;
    2. time applied per case;
    3. cycle time;
    4. inventory information;
    5. overage items; and
    6. administrative actions and resources expended.
  3. Examples of these items may include, but are not limited to:
    • Elapsed time on discontinued investigations
    • Percentage of direct investigative time (DIT) for Legal Source Tax Crimes; Illegal Source Financial Crimes; Narcotics Related Financial Crimes; Refund Crimes; Electronic Crimes and all major subprograms.
    • Percentage of overage cases at various level
    • Elapsed time/applied time on prosecution recommendations
    • CIMIS input rate
  4. Although the items referred to above are not considered ROTERs, managers must exercise caution in using this information. Managers must not use the information in a way that suggests to employees or subordinate managers inappropriate behavior regarding the exercise of judgment in enforcing the tax laws against individuals or entities.
  5. Criminal Investigation also measures and tracks other data that does relate directly to individual cases. This data may represent the result of enforcement determinations controlled in whole or in part by another government entity and may include information which qualifies as a ROTER. If so, the data should be treated as a ROTER by CI.
  6. Examples of these type of items may include, but are not limited to:
    • U.S. Attorney’s overage inventory
    • Average number of months to serve
  7. Managers are prohibited from using the data in a manner that may suggest a goal or a quota. Instead, the items referenced in items numbers two (2) and three (3) above, should be used as diagnostic tools by managers to determine the root causes of suspected problem areas.
  8. This process is further described in Section 5.6 regarding the use of statistics in preparing for and conducting operational reviews and is further highlighted in questions 7, 8 and 13, in Exhibit 1.5.5–1
  9. The regulation also restricts the use of quantity measures. Quantity Measures are considered outcome neutral such as number of cases closed, work items completed etc. The regulation prohibits the evaluation of or the suggestion of a production goal or quota to any non-supervisory employee who is responsible for exercising judgment with respect to tax enforcement results (See Regulation 801.3(3)). Within organizational units quantity measures must be used in conjunction with an evaluation or goals based upon all three elements (Customer Satisfaction; Employee Satisfaction and Business Results) of the Balanced Measurement System. See IRM 1.5.2.18 for more information regarding Quantity Measures.

1.5.5.5 (10-01-2000)
Use of Statistics for Monitoring Programs

  1. ROTERs may be used at the national, regional, or field office level to monitor, direct and control program accomplishments and direction.
  2. Management officials participating in the activities of monitoring, directing and controlling program accomplishments and direction must use caution that their use of ROTERS in authorized circumstances does not suggest or impose goals or quotas for subordinate employees or organization units. Further, management officials may not use ROTERS to compare or rank organizational units or to evaluate the managers of those organizational units.
  3. Some examples of the type of authorized activities in which ROTERS may be used include:
    1. long range planning
    2. financial planning
    3. allocation of resources
    4. work planning and control
    5. formulation of case selection criteria,
    6. effective functional management and
    7. staffing utilization systems and plans.
  4. Organizational units may share balanced measurers and other non-ROTER data at the same level.
  5. Goals for the Balanced Measures System will be set at the National level to satisfy government reporting requirements. Goals will be set no lower than the field office level. They will not be used to directly determine the evaluation of an organizational unit or an individual employee.

1.5.5.6 (10-01-2000)
Use of Statistics in Operational Reviews

  1. ROTERs may be used to prepare for operational reviews at the national, area, field office, branch and group levels. ROTERS should only be used as indicators to identify variances, whether above or below the norm. The ROTERS will be used to identify areas where further investigation is needed. Specific areas will eventually be selected for further review. The purpose of the additional analysis and review will be to determine the quality of the processes in the area of concern within the organizational unit.
  2. The review and analysis may be conducted by local management officials or through a field visitation by outside management personnel. The specific review should go beyond the raw statistics and should focus on the process to best determine what might be causing a variance.

1.5.5.7 (10-01-2000)
Certification and Independent Review Process

  1. Section 3 provides specific guidance and instructions on the review and reporting procedures for the certification and independent review process.
  2. For CI, for purposes of the independent review, information dealing with grand jury investigations cannot be disclosed. In addition, information relating to sensitive items such as ongoing criminal investigations, informant agreements and related documents, or information concerning undercover operations cannot be disclosed pursuant to the certification process.
  3. EPF and Performance Appraisal documents, which are the required documents to be reviewed in the certification process, will be the primary documents subject to review in CI by the independent review teams. The independent review team will review one or more additional review items as designated by the Appropriate Supervisor. Additional review items are outlined in IRM 1.5.3.8.4(4), and must not be in conflict with IRM 1.5.5.7.(2).
  4. Operational and workload review documents containing any information identified in IRM 1.5.5.7(2) must be excluded from the independent review.

1.5.5.8 (10-01-2000)
Criminal Investigation Questions and Answers

  1. Questions and answers describing common Criminal Investigation scenarios are listed in Exhibit 1.5.5–1. Refer to the Decision Table at Exhibit 1.5.2-2 when reviewing this section.

Exhibit 1.5.5-1 (10-01-2000)
Criminal Investigation Questions and Answers

The following questions and answers discuss the use of records of tax enforcement results in Criminal Investigation:

Q1. Would it violate Section 1204/Regulation 801 if an Assistant Special Agent in Charge (ASAC) were to inform a Supervisory Special Agent (SSA) that the group is below the expected level for accepted fraud referrals? In turn, would it violate Section 1204/Regulation 801 if the SSA were to inform the group that more fraud referrals need to be accepted?
Yes, both the ASAC and SSA would violate Section 1204/Regulation 801. An accepted fraud referral rate is a record of tax enforcement results (ROTER) since it measures the results of individual employees exercising judgment with regard to determining whether or how the IRS should pursue enforcement of the tax laws against a particular individual or entity (Step 1). ROTERs may not be used to evaluate or to impose or suggest a goal, quota, allocation, or specific amount of work that must be completed as this violates Section 1204/Regulation 801 (Step 2). Accordingly, both the ASAC and the SSA are prohibited from imposing or suggesting a goal or quota for accepted fraud referrals for the group. Instead, ASAC and SSA discussions should focus on the fraud referral process. Any evaluations of the performance of the special agent or supervisor must not consider the acceptance rate or the number of accepted or rejected fraud referrals. Rather, discussions and evaluations should deal directly with specific case-related decisions.
Q2. Would it violate Section 1204/Regulation 801 if a field office were to establish an “expected level” goal such as the number of accepted fraud referrals?
Yes, the field office would violate Section 1204/Regulation 801 by establishing an expected level for the number of accepted fraud referrals. The number of accepted fraud referral are records of tax enforcement results (Step 1) since it measures the results of individual employees exercising judgment with regard to determining whether or how the IRS should pursue enforcement of the tax laws. ROTERs may not be used to evaluate or to impose or suggest a goal or quota as this violates Section 1204/Regulation 801 (Step 2).
Q3. Would it violate Section 1204/Regulation 801 for CI to track the “fraud referral acceptance rate” at the national, area, and field office levels? Would it violate Section 1204/Regulation 801 for CI to track other statistics, such as prosecution rate, indictment rate, conviction rate, and incarceration rate at the national, area or field office levels?
No, CI would not violate Section 1204/Regulation 801 by tracking these statistics at the various organizational levels. Even though these items are classified as ROTERs (Step 1), they have an authorized use to monitor, direct and control program accomplishments (Step 2). It would violate Section 1204/Regulation 801 if CI were to use these statistics to impose goals or quotas on organizational units. The statistics must not be used to evaluate an employee, his or her immediate supervisor or to compare organizational units. When used for necessary business purposes, such as monitoring and tracking, the national, regional or district level use of these statistics do not suggest a production goal or quota. Therefore, Section 1204/Regulation 801 does not prohibit their use in the manner described.
Q4. Would it be a violation of Section 1204/Regulation 801 for a SSA to address specific dollars “seized and forfeited,” “criminally evaded from income taxes,” or “laundered from the proceeds of illegal activity” in the critical element narrative of an employee’s annual performance appraisal?
Yes, the SSA would violate Section 1204/Regulation 801 by citing the specific dollars amounts in the employee’s annual performance appraisal. The specific dollar amounts are ROTERs (step 1). Records of tax enforcement results may not be used to evaluate any employee. Referring to dollars, amounts, or cases recommended for prosecution also suggests production quotas or goals that are also prohibited by Section 1204/Regulation 801 (step 2).
Q5. An ASAC identifies that one of the groups in the branch is significantly above the national average for elapsed days on discontinued investigations. Would it be a violation of Section 1204/Regulation 801 for the ASAC to discuss this statistic with the SSA? In turn, would it be a violation of Section 1204/Regulation 801 for the SSA to discuss this statistic at the next group meeting?
No, it would not be a violation of Section 1204/Regulation 801 for either the ASAC or the SSA to discuss this statistic as it is not a record of tax enforcement results (step 1). Even though a time per case statistic is not a ROTER, the statistic should be used as a diagnostic tool to analyze underlying causes and effects. Both the ASAC and the SSA need to exercise extreme caution when talking about this statistic as improper emphasis or application of the statistic might adversely impact the handling of individual cases by suggesting a goal or quota which would be a violation of Section 1204/Regulation 801. The ASAC or SSA may discuss the need to analyze elapsed days on discontinued investigations. In that discussion they should not focus on the time on case statistic, but should emphasize identifying best practices and determining processes that might need improvement to correct the underlying causes of the statistic.
Q6. Would it be a violation of Section 1204/Regulation 801 for direct investigative time (DIT) to be calculated at the group level and discussed during a branch operation review or during a group meeting?
No, it would not be a violation of Section 1204/Regulation 801 to calculate DIT at the group level and then discuss this issue. DIT is not a ROTER (step 1); therefore, Section 1204/Regulation 801 prohibitions do not apply. However, DIT is an indicator of how resources are being allocated and applied within CI. Careful consideration should be given before calculating the statistic below the field office level since a discussion of this statistic at the branch and group levels may suggest a quota or goal which would be a violation of Section 1204/Regulation 801 (steps 3 - 5). The small size of a group workforce and the number of areas tracked create the potential for DIT calculations at the group level to adversely impact the handling of individual cases rather than exercising judgment in each case based on the facts and circumstances of that specific case. The investigative time of a group designated as a narcotics or tax gap group may be tracked to verify that resources are being properly applied. Further, a group that has been designated to handle a specific emerging issue may be tracked for proper application of resources.
Q7. Would it be a violation of Section 1204/Regulation 801 if approved national records of tax enforcement results were computed by the field office and then compared to or ranked against the national statistic or the same statistic in other field offices? What types of statistics may be used to compare field offices, branches, groups, and individual employees?
Yes, it would be a violation of Section 1204/Regulation 801 to compare or rank field offices among themselves or in comparison to the national statistic. Using ROTERs to compare or rank organization units is prohibited by Section 1204/Regulation 801 because such comparisons or rankings suggest production quotas or goals. Any use of statistics, performance measures, or non-ROTER data to compare organizational units or individual employees is also prohibited under Section 1204/Regulation 801 because such a comparison suggests quotas or goals.
Q8. In evaluating the special agent’s performance in an investigation, the SSA feels that the time charged is too high compared to other investigations with similar characteristics, and level of difficulty. Would it be a violation of Section 1204/Regulation 801 for the SSA to compare charged time in this investigation to the average time for other similar investigations in the evaluation of the employee’s performance?
No, it would not be a violation of Section 1204/Regulation 801 for the SSA to consider the time per case charged in different investigations as it is not a ROTER (step 1). Even though a time per case statistic is not a ROTER, this time on case statistic should be used as a diagnostic tool to analyze underlying causes and effects. The SSA should not cite the comparative times in the employee’s evaluation. Instead, the SSA should use the time per case statistic as a diagnostic tool to analyze the agent’s actions in making decisions about the investigation. The SSA should emphasize in the evaluation the agent’s performance by comparing the agent’s actions against his or her critical elements and job standards.
Q9. Would it be a violation of Section 1204/Regulation 801 for a SSA, in the narrative of a special agent’s performance appraisal, to state, “You submitted seven investigations of which four were recommended for prosecution and the others were discontinued?”
Yes, it would be violation of Section 1204/Regulation 801 for a SSA to make such a statement in an employee’s evaluation. The numbers of investigations submitted for prosecution and the number of investigation discontinued are both ROTERs (step 1). This statement, or any statement, identifying records of tax enforcement results in an employee’s performance appraisal, is prohibited by Section 1204/Regulation 801 (step 2). The risk of identifying the number of investigations recommended for prosecution or discontinued in the performance appraisal of any employee far outweighs the business purpose for including the tax enforcement results. The performance appraisal narrative instead, should focus solely on the process of each investigation and address the special agent’s performance in each investigation against his or her critical elements and job standards.
Q10. Would it be a violation of Section 1204/Regulation 801 for a ASAC to prepare for a group operation review, by extracting group specific information from existing data bases, including elapsed days on investigations, number of fraud referrals accepted, indictments, legal review statistics, and other group specific records or tax enforcement results?
No, it would not be a violation of Section 1204/Regulation 801 for a ASAC to access ROTER information in preparing for an operational review. Although this data includes records of tax enforcement results, it is not being used to evaluate an employee, the organizational unit supervisor or the organization unit itself (step 2). In preparing for the operational review, the ASAC has a necessary business purpose for accessing the data.Section 1204/Regulation 801 authorizes the use of ROTERs to identify certain areas of concern for further review and analysis. During the operational review the ASAC should review and analyze the underlying processes and procedures in the organization unit that relate to the identified areas of concern. This is the type of situation where upper levels of management should get behind the numbers in an effort to determine the root causes for variances in suspected areas of concern.
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